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BRICS Law Journal

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Vol 3, No 3 (2016)
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https://doi.org/10.21684/2412-2343-2016-3-3

ARTICLES

8-42 714
Abstract

The article presents an overview and analysis of international legal regulations on climate change. The authors examine how the international regime related to climate change has evolved in multilateral agreements. A special focus is put on the principle of common but differentiated responsibilities which became the basis of discord among states in discussing targets and responsibilities in climate change mitigation. The authors note that in 2015 the international climate change regime entered a new stage where the most important role is determined for developing countries, both in the legal and in the financial infrastructure, and in the formation of an international climate change policy.

The importance of the participation of Brazil, Russia, India, China, and South Africa (BRICS) in an international climate change regime has been recognized for some time. The article describes the policy and regulations on climate-related issues in BRICS. The authors compare the key actions and measures BRICS have taken for complying with international climate change documents. They highlight that global climate change action cannot be successful without BRICS countries’ involvement. BRICS must therefore make adequate efforts in emissions reduction measures and significant commitments in respect of the international climate change regime. The authors propose three major steps for BRICS to take the lead in dealing with climate change. First, BRICS need to foster further discussion and cooperation on climate issues and work out an obligatory legal framework to fight climate change collectively as well as unified legislation at their domestic levels. Second, Russia and other BRICS countries have the potential to cooperate in the field of renewable energy through the exchange of technology, investment in the sector, and the participation of their energy companies in each other’s domestic market. Assuming Russia will support the development and enhancement of renewable technologies in BRICS countries, it can take a leadership position in the group. Third, in the international process of tackling climate-related issues BRICS should act as a bloc. Russia’s distancing itself from its partners is considered a deficiency in strengthening the BRICS countries’ role in global governance. BRICS are capable of serving as a vigorous platform in driving climate change negotiations leading to effective binding regulations in 2020–2030 and, provided that the countries cooperate successfully, BRICS will carry the combined weight of the entire group in the global arena.

43-60 1269
Abstract

One of the most implicit foundations of a person’s identity today, in a cultural, national as well as global context, is the collegial relationship which he or she shares with another person, that relationship ultimately giving formation to a conjoint, consolidated and co-dependent recognition of the two as one under the law, particularly with respect to resolving socio-familial issues such as those of parentship, guardianship, adoption, succession and inheritance, among others.

The term “relationship” mentioned above is connotative of marriage and the following paper attempts to look at this relationship, in its connection to the various facets of one’s personal identity as a citizen, from the perspective of a third gender Hindu Indian national. Though the right to marry of such an individual, especially as seen against the backdrop of the existing communal ethos in the country, may be accepted as being some form of a heterodoxy, it still falls short of qualifying as anything that could be called, in the least, “heretical” or even illegal.

While due to the constraints of time the authors of the present study have been compelled to restrict the same to only a particular division of nationality and a further specific sub-class thereof, the authors sincerely hope that this study will inspire further such examinations into its chosen subject within the field domains of other religions and nationalities.

61-72 400
Abstract
This paper focuses attention on the issue of the definition of public interest, in particular, on the fact that the public interest lies in the organization of the most efficient protection system, one that also protects against possible abuse of power by the State itself. The paper argues that the adoption of the Administrative Court Proceedings Code of the Russian Federation was a mistake and demonstrates that the mechanisms implemented in the code to protect public interests are inefficient.
73-102 411
Abstract
Legal indeterminacy comes in a variety of forms identified here as: (i) general legal indeterminacy; (ii) factual indeterminacy; and (iii) Mach/Feyerabend factual indeterminacy. The concept of general “legal indeterminacy” refers to problems in legal interpretation and has been extensively studied. “Factual indeterminacy” refers to the indeterminacy of facts as a matter of tax law when derived from separately indeterminate fields of law. “Mach/ Feyerabend factual indeterminacy” refers to fact words as derived from legal theory which provide the content for legal interpretation. The “facts” in tax law are not transcendent to law; in addition, the “fact” words of tax law cannot be simply imported from the field of economics. The incremental question of the origins of theory (as discussed by Karl Popper and Albert Einstein) is also analyzed here. The theory of tax law originates with “sympathy with experience” or “intellectual love” (tr. Einfühlung) of tax law by lawyers as reflected in the special heuristics and practices of the profession. Legal theory accordingly functions in similar fashion to scientific theory where a particular legal theory can be falsified (qua Popper) or understood in pluralistic terms by incorporating auxiliary ideas.

COMMENTS

103-116 396
Abstract
This article examines the issue of the regulation of the Russian state’s control over the activities of non-governmental organizations and the limits to that control. Important changes made in 2014–2016 in the regulation of the organization and activity of judicial power show that the tasks of transformation of the judicial power structure, establishment of effective control mechanisms and strengthening of the requirements on substantiation of court judgments have become more topical. Addressing this issue and taking it as the subject of study are motivated by the small number of works dealing with this issue. The task of enhancing the effectiveness of the exercise of their powers by public authorities necessitates consideration of special features of judicial control over disputes related to restriction of rights. The adoption of the Administrative Procedure Code of the Russian Federation and the statutory formalization of special features of judicial control with respect to certain non-commercial organizations imply changes in judicial practice related to challenging the decisions made by public authorities. In addition to special procedural features such changes also facilitate the spread in law enforcement practice of legal arrangements like the ‘proportionality test’ and determining the balance between competing constitutional values and conditions of public order observance. The analysis carried out by the author reveals tendencies of improvement in legislative action and allows identification of future lines of improvement in judicial practice.
117-137 523
Abstract
Within the framework of the article the problem of inequality in the Third Sector is defined. The authors tie the production and institutionalization of this inequality with laws that were passed in the sphere of the regulation of non-governmental organizations (NGOs) in recent years as well as with several draft laws. The analysis focuses on the “foreign agent” status. Organizations that receive this status have more obligations and fewer rights in comparison with other NGOs. According to the research, the burden of a foreign agent status can be measured in terms of legal discrimination, but it also may be measured financially. The authors see fit to analyze other existing legal statuses of Russian NGOs, above all the status of an NGO realizing socially valuable projects (SO NGO), and to compare them with the legal status of a “foreign agent” NGO. The analysis shows that foreign agent NGOs and SO NGOs gradually stand at opposite poles of the legal system: the former are synonymous with politically and legally undesirable subjects, whereas the latter step by step become the state-oriented, useful organizations meriting additional support, protection and social, economic and legal benefits.

BOOK REVIEW NOTES

138-142 418
Abstract

The never-ending race after the world’s limited energy resources puts forward a wide range of questions and concerns to be responded to in a short period of time. Even with the boom in renewable sources of energy1 and the provocative forecasts of the collapse of the oil and gas markets2 new opportunities for oil and gas exploration and exploitation are still the focus of global attention. However, what appears new and promising may be deceptive. The abundant yet hard to obtain Arctic oil and gas reserves are an apt illustration of the case. The main question in this regard is whether the Arctic is a treasure chest whose opening will free vast energy resources for future generations or a Pandora’s Box whose opening will let loose irreversible troubles upon humankind.

CONFERENCE REVIEW NOTES

143-151 421
Abstract
International conference “Administrative Justice: Comparative and Russian Contexts” took place in Tyumen at the Tyumen State University on September 29–30, 2016 in the framework of the II Siberian Legal Forum devoted to the development of administrative legal proceedings in Russia.


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