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BRICS Law Journal

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Vol 11, No 2 (2024)
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https://doi.org/10.21684/2412-2343-2024-11-2

OPINION

5-10 441
Abstract

The author emphasizes the importance of scientific jurisprudence in legal consciousness formation and strengthening the legitimacy of the legal order in Russia within the context of constitutional transformation and a changing socio-historical environment across the country. As the rigid separation of politics, ideology, and jurisprudence comes under criticism, it is argued that law is interconnected with social attitudes and cannot be purely non-ideological. Additionally, the risks associated with the arbitrary borrowing of foreign ideas and applying them in Russian scientific jurisprudence are discussed, such as human rights concepts and legal globalization methods. The need to create an independent system of legal ideals based on national traditions and values is emphasized. In this regard, scientific jurisprudence lags behind practical needs and the dominance of a template-schematic approach. The author comes to the conclusion that it is important to intensify the efforts that seek to strengthen the role of Russian constitutional law in the educational process, for students of law as well as students of other disciplines.

ARTICLES

11-54 476
Abstract

The leading countries across the world have entered the race to develop quantum technologies that will enable them to ensure their continued economic prosperity. Among these technologies, a special place is occupied by quantum communication, which is designed to ensure information security in an era where a quantum computer is capable of compromising a number of cryptography algorithms. In this article, this new digital technology includes quantum key distribution and encryption methods that are cryptographically resistant to a quantum computer. The study does not consider the regulation of the quantum communication sub-technology, the so-called “quantum internet,” due to the technical limitations of the existing equipment. The authors note that their predictions about the cryptographic strength of encryption algorithms are based solely on modern knowledge about the capabilities of quantum computing and do not take into account its hidden potential, for example, in terms of cryptanalysis information systems based on a machine learning model generated by a quantum computer. Currently, the only data protection system that is not subject to quantum threats is the technology of quantum key distribution. In today’s information and digital age, information security systems are an important element of critical infrastructure. Given the importance of these technologies, different states use different methods to regulate this field. This article puts forward and substantiates the hypothesis that the implementation of a combination of regulatory legal acts could have a greater positive impact on the development of quantum communication and ensure an acceptable level of information security in the post-quantum era. The analysis showed that a significant number of states and interstate associations are conducting research in this area, relying only on investment growth. This strategy has prevented any country from achieving the competencies of the People’s Republic of China. The authors also analyzed the methods of legal support used by China, Russia, and other countries in the field of quantum communication, which made it possible to identify a model of legal regulation of quantum communication that stimulates this technology’s development.

55-72 444
Abstract

Organ trafficking, a very profitable worldwide illegal activity today, is frequently overlooked by those involved in combating human trafficking due to its complex and covert nature. Numerous international documents underscore the importance of countering trafficking in human organs and transplant tourism. This article analyzes the legal frameworks of Spain and Brazil, with a particular focus on their compliance with international and supranational standards aimed at combating, inter alia, the illegal circulation of organs and other phenomena associated with it. Firstly, the article distinguishes such phenomena as transplant commercialism, transplant tourism and illegal trafficking in organs and draws attention to the fact that currently there is no uniform understanding of the clear boundaries of the concept of illegal trafficking in organs. Elaborating on the various aspects of the above-mentioned types of criminal activity may allow one to properly determine the legal interests and rights protected by criminal law and the types of behavior subject to imputation in an exhaustive way. Secondly, the authors outline a number of controversial issues that arise due to the complex nature of organ trafficking and suggest several ways to meet these challenges.

73-90 358
Abstract

Eighty percent of the world’s population lives in emerging markets, and a significant portion of this population is not receiving healthcare or at least is not receiving the healthcare they need. This is an issue experienced in all of the BRICS countries as well. The BRICS countries particularly need drugs for the treatment and management of infectious and communicable diseases. The affordability of healthcare is one of the key priorities of the BRICS countries. These goals may not necessarily be in line with the patent laws of the BRICS countries which are also members of the World Trade Organization (WTO). This article examines the patent invalidation procedures of the four WTO member BRICS countries, namely India, China, Brazil, and South Africa with the aim of evaluating the strengths and weaknesses of their procedural safeguards and learning from their experiences. The presence of a functional patent opposition model is of utmost importance for the BRICS countries, since this allows for the invalidation or opposition of patents that have been granted in their respective jurisdictions. However, except for India, none of the other WTO member BRICS countries have developed a well-thought-out patent opposition model. This study argues that the BRICS group provides a viable forum for India to promote its distinguished patent invalidation model. In turn, the WTO member BRICS countries can learn from India’s pro-health patent opposition model and reform their national patent laws to align with their public health priorities. This is especially important in the context of the pandemic like COVID-19, for example.

91-112 386
Abstract

The current Constitution of the People’s Republic of China is the 1982 Constitution, which is the fourth constitution after the founding of the People’s Republic of China. The provisions of the current Constitution on the fundamental rights of citizens are generally similar to those of the first Constitution of 1954, but are more specific, while the freedom of movement provided for in the 1954 Constitution is deleted. The 1975 Constitution and the 1978 Constitution are the second and third Constitutions, respectively. Because of their special historical period, the provisions on fundamental rights in these two constitutions are retrogressive and failing. The historical background of the revision of the Constitution, the possibility of realizing rights and the level of social development are the main reasons for determining the provisions of the basic rights of citizens in the 1982 Constitution. In 2004, the current Constitution was amended to include “the State respects and protects human rights,” which establishes the constitutional obligation of the State to guarantee human rights. In practice, there is still ongoing debate over how the State’s guarantee obligations are implemented and whether citizens can file lawsuits if they believe that their fundamental rights have been violated. In recent years, the recordation review has partially realized the supervision of legislation that may infringe on citizens’ basic rights by reviewing the constitutionality and legality of laws and regulations, but citizens have not been able to directly protect their rights through litigation. The changes in the basic rights of citizens in terms of constitutional provisions and legal guarantees over the past 40 years are the result of the development of the rule of law in China. In order to more effectively solve the problem of constitutional rights from text to reality, it is also necessary to further develop the constitutional review system.

113-133 496
Abstract

This article presents an analysis of strategies used for the legal regulation of digital transformation processes at the municipal level in the BRICS countries. A systematic analysis of modern trends in the legal regulation of digital transformation in Brazil, South Africa, India and China was carried out, and the features and general directions of this process were highlighted. The authors noted a variety of different approaches to normalizing digital processes in management, ranging from fixing basic principles at the constitutional level to developing “flexible” regulation constitutionally mandated through by-laws and state political and legal documents. It is shown that the digitalization of public administration is primarily focused on the level of national government, since financial resources are specifically concentrated at the highest level of governance. It is concluded that the specificity of local government, manifested in a high degree of self-government and participation of the population in solving life support issues, objectively requires a shift in the emphasis of digitalization to the local level of government. It has been proven that this process requires strategic state planning on the part of the state for the digitalization of local self-government, taking into account the elimination of the “digital divide” in municipalities. The authors propose the implementation and development of the “smart city” concept in the BRICS countries with a differentiated scale of digitalization criteria for the various municipalities.

134-153 676
Abstract

The rapid development of information and communication technologies is closely related to the exponential growth in data volumes. At the same time,    the development of enterprise strategies coupled with the digital economy has    led to changes in business models and infrastructure solutions. The emergence of innovative industries that extensively use the internet has presented significant challenges to the security of systems and sensitive data, particularly in the field of cybercrime. In order to address the growing issue of cybercrime, African nations, among which Algeria is the largest country, need to build a series of digital barriers in the form of legislation, multilateral agreements, and the development  of technical capacity in this area, such as the creation of cybersecurity centers.   The implementation of an effective cybersecurity strategy is strongly required on    a national, regional, and continental scale. According to the last report of the Global Cybersecurity Index 2020, Mauritius is ranked as the most secure country in Africa in terms of cybersecurity, followed by South Africa in the second rank. A successful economy inherently involves a digital economy and a bold strategy to counter all the “nuisance” of cybercrimes. Algeria, despite its relatively low ranking in the last report of the Global Cybersecurity Index, has made significant progress when compared to its neighbors. With its excellent internet connectivity and a young and dynamic population, Algeria’s positive economic indicators are certain to improve even further with the desired membership it seeks in the BRICS organization. Given these considerations, it follows that South Africa as well as Algeria possess the potential to serve as locomotives for the development of the whole of Africa.

COMMENTS

154-178 274
Abstract

The current Public Assembly Law in the Russian Federation, which regulates the implementation of the constitutional right to freedom of peaceful assembly in Russia, has been developed and formed over the course of the past three decades, following the ratification of the Russian Constitution in 1993. The Public Assembly Law can be described as an important institute of public law as well as a sub-branch of the constitutional law of Russia, which combines constitutional provisions, relevant norms of the federal and regional laws and case law of the Russian Constitutional Court regarding the implementation of the Freedom of Peaceful Assembly. The modern Public Assembly Law has high importance for the development of a democratic society and for the rule of law. The author investigates the constitutional adjudication of the Russian Constitutional Court from 1993–2023, focusing in particular on its eleven judgments concerning the implementation of Article 31 of the Russian Constitution, which defines the constitutional standards of the Freedom of Peaceful Assembly. The author also examines several prominent cases of the Russian Constitutional Court, referred to as decisions with positive content, which are crucial for obtaining a systemic overview of the current problems of the Public Assembly Law in the Russian Federation.



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