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BRICS Law Journal

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Vol 5, No 2 (2018)
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https://doi.org/10.21684/2412-2343-2018-5-2

ARTICLES

4-23 408
Abstract

This article assesses the problems and prospects of the development of cooperation among the BRICS countries’ in the sphere of law and the movement of these countries towards the creation of a common legal framework. The article presents a comparative analysis of the systems of law, including the cultural, historical, social and political contexts of their formation and development as well as the functioning of the systems in the conditions of the modern world.

The article particularly focuses on the subject of a common philosophy of law for the BRICS countries that would allow not only to establish the interaction of such dissimilar partners in the legal sphere, but also to move towards a new model of legal interaction for the whole world that has embarked on the path of globalization. Special means allowing the assessment of the possibility of future legal integration and globalization based on a common philosophy of law are the traditions and values of the civilizations represented by the BRICS countries. The article suggests that the core of the civilizational and value- based identity of each BRICS partner consists in a set of ideas and interpretations of the notion of justice clearly manifested in the controversy with the theory and ideology of justice proposed by the initiators and leaders of globalization - the countries of the West led by the United States. The theory and ideology of justice promoted by the "Atlantists" is concisely formulated in the book "A Theory of Justice" by John Rawls. Therefore, the reaction to and discussion of such a theory by the philosophers and jurists from Russia, India and China allows determining the contours of the common philosophical and legal position of these countries as well as outlining its significance for the future of the BRICS countries and, perhaps, of the whole system of legal relations in a new globalizing world.

24-48 315
Abstract

This article deals with the challenges concerning increasing administrative justice efficacy in Russia and other BRICS countries, where the specialized development of jurisdictional bodies is inconsistent and far from effective. The article analyzes the gaps and disputed aspects of administrative justice including the mechanisms for judicial administrative dispute resolution in the BRICS countries. The authors argue that the level of effectiveness of administrative justice vested in judicial procedures depends critically on the specialization of the administrative courts. This involves individual judges, separately operating permanent judges, judicial committees, mono-courts, independent administrative judicial systems incorporated into larger judicial systems within the courts of general jurisdiction, and separate and independent administrative and judicial systems. Even though the BRICS countries do not have a structured administrative judiciary, the retrospective and comparative analysis of their administrative justice jurisdiction and its most effective practices and mechanisms undertaken by the authors enables them to rethink the existing approach to resolving administrative cases via the judiciary. The aim of the article is to initiate the creation of an independent administrative court system organization in order to ensure better justice in the areas of social life including legal relations with executive bodies. Suggestions for the implementation of the specialization of the administrative judiciary in the Russian Federation are given. The authors, for the first time in Russian jurisprudence, propose a theoretical model of an independent, four-tiered specialized legal mechanism of administrative justice, which includes the interrelated factors of court organization, the judiciary and their legal status. The range of the four specialized tiers of the administrative judicial system is proposed. It is argued that they should include a systematic succession represented by lower courts, first instance lower courts, area courts and a Higher Administrative Court of the Russian Federation.

49-71 381
Abstract

This article analyses the recent Economic Community of West African States (ECOWAS) military intervention in the Gambia, primarily focusing on possible legal bases for the enforcement action. It examines the political situation following the release of the election results and details the international response to the post-election situation in the Gambia. Among the legal bases assessed include United Nations Security Council authorisation of regional enforcement action under Chapter VIII of the U.N. Charter through Resolution 2337 (2017), intervention by invitation and consent through prior treaty. In so doing, the article also illuminates the plausibility that the ECOWAS military intervention may be considered as unilateral enforcement action, a point further stressed through an analysis of prior ECOWAS interventions, most notable, the interventions into Sierra Leone and Liberia. Moreover, the intervention in the Ivory Coast following the 2010-2011 post­election crisis is also examined in showcasing the situational similarities between those in the Ivory Coast and those in the Gambia. In so doing, the article inter alia, explores the international legal framework pertaining to the prohibition of the threat and use of force; analysing its nature as well as exceptions to it. Article 2(4) of the U.N. Charter, read together with Article 53, therefore form the backbone of the contribution.

72-99 368
Abstract

International humanitarian law consists of different rules that are used for protecting people and restricting the methods of warfare. The application of international humanitarian law is not only limited to the protection of victims related to armed conflicts during the outbreak of hostilities; however, it is also helpful for protecting the victims of these conflicts, including environment. The legal rules for the protection of environment in armed conflict also provide legal protection for the environment during the outbreak of hostilities. The study is divided into several sections, starting from environmental damage in the context of warfare. Afterward, the study discusses the importance of preventive measures in armed conflicts. Furthermore, the properties of prevention protection of environment are discussed including cultural property, engineering installations and protected areas near hospitals and safety zones. The study has shown positive consequences of preventive protection method in both the conduct and the outbreak of hostilities. A set of mechanisms or legal procedures is imposed under humanitarian conventions to provide preventive protection to the environment. The principles of humanitarian law have been developed and enforced through the actions of the Red Cross. However, proved nonetheless to be insufficient to prevent environmental destruction. Principally, the enforcement mechanisms hindered the effectiveness of the provisions. In contrast, several conditions for the possibility of registering cultural property in the international register of cultural should be encouraged based on special prevention mechanisms so that the humanitarian conventions can take serious considerations towards it.

100-111 441
Abstract

This article asserts three propositions. First, climate change and/or global warming has (and will continue to have) qualitative differences in its nature and impact on rich and poor countries, thus demonstrating the imperative of adaptation to and mitigation of its effects. Second, the current international environmental regime is insufficient for sensible global distributive justice. What is more, in the absence of an adequate regime the world continues to ignore fundamental ethical issues and the immediate needs of climate-vulnerable countries. Third, the effective preservation of the environment necessitates that developed countries bear the (ethical) responsibility for meeting the costs associated with climate change, and urgently and unremittingly discharge their obligation to assist developing and/or least developed countries in adapting to and mitigating the impact of global warming.

COMMENTS

112-127 311
Abstract

This article deals with the definition of the subject and objects of modern Russian criminalistics. It is aimed at sensitizing world public opinion to the necessity of inquiry into the criminalistic essence of crime and encouraging criminalists to study new techniques of crime investigation in order to mitigate risks and reduce errors arising in the criminal investigation process.

One of the main objects that is constantly undergoing research in Russian criminalistics is criminal activity. The subject of Russian criminalistics is the regularities of criminal activity. When investigating crimes scientists are interested in the information that allows the successful investigation of the crimes and determination of the offender. The information about different types of crimes, which is necessary for crime investigation, is accumulated in the criminalistic characteristic of crimes. The Criminalistic Characteristic of Crimes is a scientific theory of modern Russian criminalistics that makes it possible to fully examine the specific features of crimes of all kinds, i.e. the forensic nature (essence) of crime, the system of crime elements with their characteristics, and the relationship between those elements. In U.S. and European criminalistics, the regularities of criminal activity are not defined as an object of study of this science. Yet, in the U.S. and European countries criminal profilers investigating criminal cases study the criminal links between crimes to identify crime series and crimes committed by similar offenders (or to determine co-offenders).

128-153 792
Abstract

This article evaluates the legal framework of cryptocurrency in various countries. The new currency instrument is abstract currencies. They are currencies in the sense that they can be exchanged peer-to-peer. They are representations of numbers, i.e. abstract objects. An abstract currency system is a self-enforcing system of property rights over an abstract instrument which gives its owners the freedom to use and the right to exclude others from using the instrument. Cryptocurrency or virtual currency is a cryptographically protected, decentralized digital currency used as a means of exchange. Due to the development of new technologies and innovations, the rate of use of virtual currency is rapidly increasing throughout the globe, replacing not only cash payments and payments by bank transfer, but also electronic cash payments. Among the best-known representatives of cryptocurrencies are Bitcoin, Litecoin and Ethereum. Legal scholars have not yet reached a consensus regarding the nature and legal status of virtual currency. Virtual currency possesses the nature of obligations righ ts as well as property rights, since it may be both a means of payment and a commodity. Depending on the country, the approach to cryptocurrencies may be different. Today there is already an international cryptocurrency community that does not have a single coordinating center. Only progressive jurisdiction and state regulation of cryptocurrency activity will allow the creation of the conditions that will ensure the implementation of legitimate and safe cryptocurrency relations.



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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)