Issue of the English Language Version of the Moscow Journal of International Law

Address by Prof. Yury M. Kolosov, Editor-in-Chief, Director, Department of International Law, Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation.

Dear readers,

In front of you is an experimental zero issue of the English language version of the Moscow Journal of International Law. This issue includes selected articles published by the Russian language edition of the Journal in 2000-2001. The Moscow (and originally the Soviet) Journal of International Law was created as an open podium for various, at times diametrically opposite viewpoints on the present-day international law. Over 11 years of the existence of the Russian language version we have published on the pages of this Journal articles written by more than 700 authors from Russia, the CIS countries, Canada, the United States, Greece, Vietnam, Afghanistan, Laos, SaoTome e Principe, France, Sweden, Finland, Switzerland, India, Germany, Great Britain and other countries. The spectrum of the issues under consideration has always been broad to the maximum and it includes questions of theory of international law, legal problems of international security, questions of international humanitarian law, space law, air law, diplomatic and consular law, international maritime law, law of international treaties, correlation between international and national law. The Journal has repeatedly focused attention on the issues of territory in international law, international ecological law, various aspects of international private, business, investment and tax law. In the pages of our Journal there is always room for young authors students and post graduates of law faculties, space is allocated to announce new legal literature publications. And finally, and this is one of the important merits of the publication, our Journal has published different international

2000-2001ENG6.p65 1 29.09.02, 20:22 conventions, documents of international organizations, bilateral agreements and laws of the Russian Federation. At the same time, the publication of only the Russian language version of the Journal substantially limits the circle of our potential readers. The Editorial Board deems it purposeful to let foreign colleagues familiarize themselves with our international law thinking, our vision of international law problems, and this has made the need felt in publishing a full-fledged regular English language version of the Journal starting from 2003. The English language version will be semi- annual and will contain almost the same kind of materials just like the Rus- sian version. Changes may concern published documents because the Editori- al Board will strive toward broader familiarization of its readership with the normative base of the Russian Federation and the CIS countries. Also the Journal will be open for polemics on the issues raised in the materials published. We hope that our Journal will be interesting for scientists and practicing lawyers of different countries and will contribute toward deeper mutual understanding in the creation of a safer, democratic peace on the basis of respect and observance of the principles and norms of the current international law.

2000-2001ENG6.p65 2 29.09.02, 20:22 Welcoming Address by Prof. Anatoly V. Torkunov, Chairman of the Editorial Council, Rector of the MGIMO (U) of the Ministry of Foreign Affairs of the Russian Federation.

The Moscow State Institute of International Relations (University) is the founder of the Moscow Journal of International Law. The MGIMO is the oldest and leading university in the CIS countries for training specialists in international relations. Created in 1944, the MGIMO has already for more than half a century been training historians, lawyers, economists, financiers, political scientists, journalists, managers, specializing in various fields of international cooperation. Today, almost 4,000 students pursue their studies at MGIMO-University. Among University graduates there are heads of state, eminent political leaders, diplomats, lawyers, businessmen. The MGIMO has always been an international university, here up to the mid-80s studies were pursued by the students from the socialist bloc countries, and later the MGIMO thrust its doors wide open for students and post-graduate students from all over the world. Now more than 500 foreign students and post-graduate students study at 8 faculties of the University. MGIMO professors are considered to be recognized leaders in the scientific life of the country. Scientific schools of the university, which are recognized both in Russia and abroad, have been carrying out scientific research in certain directions. This is, first of all, the history and theory of international relations and foreign politics, international law, the constitutional law of Russia and foreign countries, international economic relations and world economy, political science, sociology and also philology and linguistics. The University has always devoted great attention to the teaching of legal disciplines on the whole, and international law, in particular. The legal departments

2000-2001ENG6.p65 3 29.09.02, 20:22 of the Law Faculty of the University were headed by such well-known jurists as Prof. S.B. Krylov, one of the authors of the UN Charter, Prof. F.I. Kozhevnikov, a former Judge of the International Court of Justice, Prof. I.P. Ilyinsky, Prof. A.D. Kejlin, Prof. K.I. Yaichkov, and Prof. R.A. Naryshkina. Today, studies are conducted at the faculty by Prof. M.V. Baglai, Chairman of the Constitutional Court of the Russian Federation, Prof. Yu.M. Kolosov, Member of the UN Committee on Economic, Social and Cultural Rights, Prof Yu.A. Reshetov, Ambassador Extraordinary and Plenipotentiary, a member of the Committee on the Elimination of Racial Discrimination, Prof. V.A. Kabatov, a merited scientist of Russia, an Arbiter of the ICAC and the Marine Arbitration Commission of the Russian Federation, Prof. S.N. Lebe- dev, Chairman of the Marine Arbitration Commission of the Russian Feder- ation, a participant of a number of international conferences on private law, Prof. L.M. Entin, Director of the Institute of European Law, Prof. I.I. Vere- meenko, Head of the Department of Administrative and Finance Law. It is therefore quite natural that the initiative of the professors of the International Department of Law on the establishment of a scientific publication has immediately found approval and broad support among the Administration of the University. Here the MJIL from the very beginning is not a purely university publication for professors and students of the MGIMO, and is oriented toward the broadest audience of readers. The Editorial Council of the MJIL comprises well-known international law jurists from Russia, Belorussia, Ar- menia, Kazakhstan, Kyrgyzstan, Uzbekistan, Ukraine, Georgia, Turkemen- istan, Latvia and Lithuania. The Editorial Board of the magazine consists of scientists jurists of the MGIMO (University), and also of the Moscow State Academy of Law, the Diplomatic Academy of the Ministry of Foreign Af- fairs of the Russian Federation, the Academy of the General Headquarters and the Constitutional Court of Russia. The Journal plays an important role in the learning process, quickly familiarizing students with the latest changes, taking place in international law on the whole, and its separate branches, it provides an opportunity to get acquainted with different approaches and assessments of specialists of these or those problems of our time, it expands professional outlooks. I want to voice the hope that the English-language edition of the Journal will find its readers in different parts of the Earth and will not only propagate internal law views of Russian scientists but will first of all serve the cause of mutual understanding and expansion of contacts between the peoples of various countries.

2000-2001ENG6.p65 4 29.09.02, 20:22 Business and Science: Hand in Hand by Leonid V. Seleznev, First Vice General Director, Ruseltrans.

The Russian Electrical Transport (Ruseltrans) a holding company, uniting Russian enterprises for manufacture of trolley buses and trams, and it is involved in marketing and sales of products of these enterprises in the Russian Federation and abroad. Modern comfortable vehicles with the TROLZA trademark every day thrust the doors open for passengers in Russia, the CIS countries, Bulgaria, Hungary, Greece, Canada, Chili and Yugoslavia. A natural question arises and what does international law have to do with this? At the first glance there is no connection, and from the point of view of advertising products of a machine- building enterprise of the holding the pages of a scientific legal publication are not the best venue. Such conclusion would be correct still 3-5 years ago. However, Russian business, having gone through the stages of its development, ups and downs, mass dismissals and openings of new plants is beginning to realize its role in supporting and developing the countrys fundamental science. General theoretical studies on the whole, and in the field of international law in particular, have never yielded and could not yield immediate profits. Nevertheless, the development of humanitarian branches exerts substantial influence on the formation of stable democratic, open society, which in the final analysis is the main condition and guarantor of normal development of any business. Of no less importance is propaganda of scientific legal research (including private legal research) outside Russia, which by itself changes for the better the attitude to the country on the whole, and also to concrete representatives in particular, contributes to the destruction of the image of the Russian bear or the Russian Mafia, which at times is still labeled on Russian businessmen by their foreign partners.

2000-2001ENG6.p65 5 29.09.02, 20:22 Therefore, the support rendered by the hold Ruseltrans to the Moscow Journal of International Law reflects the change of realities in the present- day life of Russia. We hope that the English language publication of this Jour- nal (by the way, one of the first independent scientific publication in new Russia) will make it possible for foreign readers to under our country better, the changes which are taking place in it, including in the field of entrepreneurial law, protection of foreign investments, liberalization of the tax and currency regimes of doing business. On our part, we wish success to the English language edition and hope that it will find its numerous readers throughout the world.

2000-2001ENG6.p65 6 29.09.02, 20:22 Address by A. Muranov, Candidate of Jurisprudence (Ph.D.), Professor of the Department of Private International and Civil Law, Moscow State Institute for International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation, Moscow Journal of International Law Editorial Board Member, Monastyrsky, Zyuba, Semenov & Partners Law Firm.

PRIVATE INTERNATIONAL LAW IN MOSCOW JOURNAL OF INTERNATIONAL LAW

The present digest will undoubtedly attract attention of those interested in private international law for several reasons. Firstly, since Soviet period Moscow Journal of International Law has remained one of the leaders among periodicals and non-periodic editions in the Russian private international law doctrine. Traditionally, questions of public international law have been given more attention in the Journal, however private international law issues are tending to become of equal priority. Secondly, this collection is one of the first attempts in Russia to make known to foreign experts the specific scholar and practical achievements of Russian lawyers in the sphere of private international law. Thirdly, the success and reputation of Moscow Journal of International Law seriously facilitate interaction in Russia of public international and private international law which is of great significance given their alienation from each other that existed in the USSR and still remains in many aspects. Additionally Moscow Journal of International Law accepts the broad understanding of private international law and attempts to highlight on its pages the issues of international trade law, foreign investments, international commercial arbitration and issues from other legal areas related to international civil and commercial intercourse. Further, the following feature of this digest and Moscow Journal of International Law in general should be emphasized: they successfully combine two things which only an uninitiated person may consider incompatible, namely theory and practice. Thanks to the efforts of the Moscow State Institute of

2000-2001ENG6.p65 7 29.09.02, 20:22 International Relations the Journal from the very outset has given due consideration to both doctrinal and practical developments in private international law. The Journal regularly and productively cooperates with practicing lawyers specializing in protection of rights of foreign persons in Russia and Russian persons abroad. Good example of such cooperation is regular publications on legal practice involving foreign entities or private international law of the Monastyrsky, Zyuba, Semenov & Partners law firm. Finally, publication of this digest will greatly contribute to the internationalization of information on Russian private international law which is scarcely known abroad. This is the only possible way to attract attention of foreign legal community, since unfortunately, Rossica non leguntur. Even though this branch of the Russian jurisprudence is represented in the digest selectively nevertheless it is an important step towards mutual understanding and enrichment of the Russian private international law and private international law of foreign states. We believe that such publications help to maintain the reciprocal interest which they may have in each other.

2000-2001ENG6.p65 8 29.09.02, 20:22 Contents

Questions of Theory I.S. Ivanov. The Rule of Law in International Relations a Pledge of General Strategic Stability and Security in the XXIst Century. (No.1/2001)...... 11 O.N. Khlestov. The Forecasts of Development of International Law in the XXIst Century. (No.2/2001)...... 17 Human Rights Yu.A. Reshetov. Freedom of Information: to Whom does it Belong? (No.2/2001). 27 B.L. Zimnenko. Analysis of Applications of Russian Citizens to the European Court of Human Rights vs. the Russian Federation (No.2/2001)...... 39 Legal Aspects of the CIS G.V. Simonyan. To the Issue of Recognition of Jurisdiction of the Economic Court of the CIS by the Participating States of the Commonwealth (No.4/2000). ... 48 A.Kh. Abashidze. How Standards of Humanitarian Law are Applied in the CIS (No.3/2000)...... 56 B.R. Tuzmukhamedov. The Legal Framework of Peace Operations in the Commonwealth of Independent States (No.2/2000)...... 63 Questions of Security A.V. Zmeevsky The Convention to Combat Terrorism, Separatism and Extremism (No.4/2001) ...... 80 V.V. Svinarev. The Legal Status of Russian Military Bases Abroad (No.4/2000). ... 86 O.V. Zotova, Yu.M. Kolosov. The Legal Regime of Outer Space as a Major Element of Maintaining International Peace and Security (No.2/2001). .. 100 State Territory A.V. Kondakov. To the Issue of Guaranties of Turkmenistans Permanent Neutrality (No.3/2001)...... 104 International and Municipal Law P.N. Biryukov. Representative of a Law Enforcement Agency of a Foreign State Party to the Russian Criminal Proceedings (No.3/2001)...... 112 International Economic Law V.M. Shumilov. International Economic Law: Certain Issues of Theory and Practice (No.3/2000)...... 118 Private International Law A.V. Anichkin. Institution of Renvoi in the Contemporary Private International Law. (No.1/2001)...... 142 A.I. Muranov. History of the Official Publication of the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) in the Russian Federation in the Context of Application of International Treaties in Russia (No.1/2001)...... 166

2000-2001ENG6.p65 9 29.09.02, 20:22 Yu.E. Monastyrsky. On Remedies Available to a Foreign Shareholder in One of the Most Noted Trials in the History of the Russian Stock Market (1995-2000). (No.3/2001)...... 204 Tribune of Teacher and Student D. Melnik. My Studies in Harvard University (No.1/2001)...... 223 Documents The Shanghai Convention on Combating Terrorism, Separatism and Extremism ...... 231 Treaty On a Customs Union and a Unified Economic Area ...... 239 Treaty On the Establishment of the Eurasian Economic Community ...... 258

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Unofficial translation

Statement by Igor S. Ivanov, Minister of Foreign Affairs of the Russian Federation, at the International Conference «Entering the 21st Century: towards the Rule of Law in International Relations» (November 2, 2000) THE RULE OF LAW IN INTERNATIONAL RELATIONS A PLEDGE OF COMPREHENSIVE STRATEGIC STABILITY AND SECURITY IN THE 21st CENTURY Distinguished organizers and participants of the Conference,

Ladies and gentlemen, A strong and global consolidation of the rule of law in international relations is one of the most important objectives of the modern world politics. This has once again been clearly proven by the debate during the recent Millennium Summit and Assembly. Whatever the differences in the views of States on the future world order, it is quite obvious that any international -relations architecture can be solid enough only if it is based on an appropriate international legal foundation. Paraphrasing a well-known statement by Andre Malraux, we can responsibly affirm that the 21st century will be the century of the rule of international law - or our world will cease to exist. The Declaration, adopted by the Heads of State or Government at the Millennium Summit in New York in September 2000, reaffirmed their «commitment to the purposes and principles of the Charter of the United Nations which have proved timeless and universal». It is of primary importance since the UN Charter is the backbone of the international law and the United Nations is the stronghold of the world law and order. It is no coincidence, I believe, that it is in Russia that the idea of strengthening the international law and order is being received the most interested and consistent support. A creative approach to the international law is a part of our long-standing historical tradition. It is enough to remind of the role Russia played in the convening of the first Hague Peace Conference of 1899 that has laid a foundation of the modern humanitarian law. Our country directly participated in the establishment

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of the United Nations and the elaboration of its Charter. And today, we continue to consider the commitment to the international law as one of the basic principles of Russias foreign policy. By the way, this partly answers the question which is frequently posed to us lately: what is Russias vision of the future world order and of its place in it? Those who have had an opportunity to become familiar with the Concept of Foreign Policy of the Russian Federation recently approved by President Putin could make certain of the fact that all aspirations of our State in the world and European arenas are directly supported by international law. It is the world order based on the primacy of law and multilateral mechanisms regulating international relations that Russia sees the best environment for the realization of its interests. In other words, the whole system of international relations should be based on «the force of law» rather than «the law of force». I am convinced that the majority of States are interested in the world order built on such understanding of the national interests. As early as at the juncture of 19th and 20th centuries Mr. F.Martens, an eminent Russian expert in international law, developed a concept of international law by determining the management of international affairs as its major objective. The modem global development has fully confirmed the truth of his opinion. The process of globalization has drastically enhanced the interdependence of States: the effects of armed conflicts and financial crises far exceed the limits of any particular State or region and undermine stability of the world system as a whole. The increasing number of integration associations and governmental and non-governmental organizations is involved in the sphere of international relations. The manageability of these processes can be ensured only through international regulation. Finally, the international community uses widely the law sphere for responding to new threats and challenges to international security and stability. The way completely new branches of international law, such as human rights law, outer- space law, international criminal law and environmental law, appeared in the recent past the legal norms are being developed today to fight against terrorism, drugs trafficking and transnational crime. It is significant that the role of national law does not diminish in the process. The norms developed at the international level are increasingly incorporated in national laws of different states thereby contributing to their convergence. In one word, international law is increasingly assuming the role of a kind of «binding material» for the progressively emerging multipolar architecture of international relations. In essence, it is a process that has no alternative. Speaking at the UN Security Council meeting on 7 September V. Putin, President of the Russian Federation, underlined the everlasting significance of the primacy of international law principle. As it was stressed by the President of Russia, the lessons of recent history provide clear evidence that approaches and measures ignoring international law are inevitably undermining both regional and global stability.

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It is quite regrettable that a bad example in this respect is often set by those countries that are internally considered to exemplify the very idea of a democratic and rule of law state. NATOs military action against Yugoslavia undertaken without authorization by the UN Security Council and in violation of the fundamental principles of the UN Charter seriously damaged international law and order. The damage caused has only been aggravated by the attempts to justify retroactively this flagrant violation of international law by various quasi-legal arguments such as concepts of «humanitarian intervention» and «limited sovereignty». The position of Russia on the subject which coincides with the view of the great majority of countries in the world is well-known. We denounced this action which was, according to all canons of international law, no other than an act of aggression committed by NATO against a sovereign State. I think that the serious nature of this issue makes it imperative to examine in more detail its international legal aspects. Most radical advocates of use of force, including use of force in circumvention of the UN Security Council, argue that today the principle of respect for human rights should be given priority over the principles of non-interference in internal affairs, sovereign equality of States and non-use of force in international relations. According to the proponents of this view, NATOs action against Yugoslavia cleared the way for a precedent-based establishment of a new rule of international law legitimizing «humanitarian intervention» What can be said about it? First of all, such concepts patently rest on a basically false premise that the institute of the State itself is allegedly a major violator of human rights in the world. Over the last decade, however, many concrete cases have demonstrated the opposite: a weakened statehood - or its complete disintegration in some countries - has led to the escalation of political crises to armed conflicts with associated mass violations of human rights. No matter how large the number of the subjects of international relations might be, sovereign States have been and will remain their principle actors. Today, many appeals are launched to orient international cooperation towards a man, to focus attention on his security, well-being and dignity. Here again, only the States can assume the major responsibility. Of course, we cannot deny the fact that now a growing number of questions that previously fell exclusively within the internal competence of the States increasingly becomes a subject of international debate. In particular respect for human rights ceased to be viewed as an exclusively internal problem of a State and the principle of non-interference in the internal affairs is increasingly linked with the transparent human rights policy of States and their voluntary cooperation with international bodies. I say it again: a voluntary cooperation. However, all this testifies to a more improved and civilized implementation of the State sovereignty

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principle rather than to its erosion. This process can develop only on an equal basis, that is to say, thanks to, rather than despite it, strict compliance of international law. The principle of sovereign equality does provide the States with a possibility to demonstrate their good will and to cooperate with the international community. Meanwhile, the doctrines of «humanitarian intervention» and of «limited sovereignty» wittingly imply inequality and lawlessness in the relations among States. After all, it is obvious that they are not intended to be used against the richest and militarily most powerful countries. So, they create a situation where - to paraphrase George Orwell «All are equal but some are more equal». To question the principle of sovereignty and sovereign equality of States means to turn upside down the entire system of international law that constitutes precisely the system developed as a result of agreement between States rather than a sort of «restaurant menu» offering a choice of means that are most appropriate, in ones view, for achieving some political purposes or other. There is no hierarchy of the international law principles. All these principles are interconnected, supplement each other and in their totality are intended to protect the world community both from humanitarian disasters and acts of aggression. Finally, international law by definition should protect the weak against the tyranny of the powerful. The very suggestion that the flagrant violation of this principle could become a standard makes the idea of international legitimacy a mockery. We cannot also exclude that the application of different doctrines of «humanitarian interventions can destroy the international order to the extent that is dangerous even for those who would like to appropriate a «right» to conduct military operations. Indeed, if the idea of admissibility of the use of force without permission of the United Nations Security Council is laid down in international law, anybody can take possession of the humanitarian bludgeon». A legally absurd situation is also possible: when some use force referring to the right of humanitarian intervention and the others being victims of such aggression use force for self- defense on the same legal grounds. The position of those who try to reassure the world community that the doctrine of «humanitarian intervention» will be applied only in «exceptional» circumstances rather than universally wont hold water. Such presentation of the problem affects probably the question that is of key importance for the fate of the international law and order: is international law «optional» in the opinion of those who advocate advisability and fusibility of ignoring in «exceptional circumstances» the Charter and prerogatives of the Security Council? If the answer is «yes» and any other answer just impossible then does not it represent an attempt to receive a «right» to resort to the tyranny and does not it represent a direct way to the anarchy and chaos in international relations?

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In general, whatever could be the focus of our consideration of the doctrines of «limited sovereignty» and «humanitarian intervention», they inevitably bring us beyond international law and, consequently, beyond civilized relations among the States. Quite another matter is how to deal with a real problem of responding to humanitarian crises and how to strengthen operative capacities of the world community, and first of all those of the United Nations, in this regard? Indeed, there is a necessity to clarify collectively legal aspects of the use of force in international relations in the process of globalization and we have submitted an appropriate initiative to the United Nations. I would like to stress that our position is quite open and constructive. For, when it was really necessary, the UN Security Council took, with our support, decisions to conduct operations in order to secure human rights and democracy: from Haiti to East Timor. Moreover, we are far from considering absolutely perfect the peacemaking and crisis prevention mechanisms that the international community possesses at present in the face of new threats and challenges. I am firmly convinced that there are no obstacles that would prevent us from further developing international law and gradually filling the remaining gaps in this field based on fundamental principles of the UN Charter. The United Nations should remain the main generator of legal norms in this field, governing essentially all spheres of international relations. Fundamental international instruments such as the Convention on the Law of the Sea, Covenants on Human Rights, Convention on the Law of Treaties and the recently adopted Statute of the International Criminal Court have been worked out within the framework of this Organization. Russia advocates the preservation of an equally important function for the UN and other international organizations in the 21st century. Among the examples of this function one can mention the International Convention for the Suppression of the Financing of Terrorism recently adopted within the UN (presently we are making preparations for the ratification of this important instrument) as well as the Convention against Transnational Organized Crime that will be open for signature next December during the Palermo Conference. Other instruments to counteract new threats and challenges are also under preparation within the UN. Regional organizations also have a role to play. The Russian Federation resolutely supports the law-making function of the Organization for Security and Cooperation in Europe. We will continue to actively pursue this goal. Evolution of global and regional processes will undoubtedly require further development and adaptation of international law. For that reason, we favor the most active involvement of scientists and experts, representatives of non- governmental organizations and civil society as a whole in this creative process. It is within this context that we consider the present Conference.

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I would like to take this opportunity to express special gratitude to the UN Information Center in Moscow and the Russian Association of International Law for their catalytic role in organizing this forum. I would also like to wish all the participants interesting and fruitful discussion. I hope that its outcome will contribute to the development of international law and provision of broad public support thereof in our country and abroad. Thank you.

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THE FORECASTS OF DEVELOPMENT OF INTERNATIONAL LAW IN THE XXIst CENTURY

O.N. Khlestov* On the threshold of the two centuries and the more so of millenniums mankind is always faced with the question: what is awaiting it in the future? And now this question is being asked. It is predicted that in the XXIst century colossal changes will take place in the life of mankind, unprecedented successes will be achieved in various fields of science and technology in the genetic engineering after the deciphering of the genome of man, in informatics, in the development of the World Ocean and outer space. A question also arises: how will the growing contradictions influence the life of the world community in connection with the irregular development of various groups of states, the diversity of races, nationalities and cultures, the deepening gap between the rich and the poor countries, the aggravation of ecological and demographic problems? Will all these problems be a destructive factor or mankind will be able to overcome them? Similar questions also arise in regard to international law what will it be in the XXIst century? Will it create international law and order, on the basis and in accordance with which peaceful relations will be developing between all members of the world community? Or the states also in the XXIst century will use armed force for the achievement of their foreign political goals, for the settlement of international disputes, and the internal armed conflicts will be flaring in different points of our planet? The answer to these questions is of great importance for the life of the world community, for the determination of the foreign policy of a state. Cooperation and the struggle between states take place on the international arena, because their interests do not always coincide. In the course of development of international and legal norms each state strives to create such norms, which would answer its interests. But because this is practically impossible, the created norms are of a compromise nature. These norms create the international law and order, or, as it is sometimes called, the international lawfulness, which determines the rules of behaviour of states. The international law develops under the impact of objective factors, being the source of international law in the material sense (the correlation of forces on * Oleg N. Khlestov Vice-President of the Russian Association of International Law, Ambassador Extraordinary and Plenipotentiary, Professor.

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the international arena, the scientific-technical revolution, economic and other factors). Therefore the tendencies of development of the international law in the XXIst century can be defined only by taking into account these objective factors. At the same time the international law in the XXIst c. will be developing on the basis of the existing law something must be preserved, and certain things will undergo changes. Therefore it is important to evaluate what is the state of the present-day international law, what it is, the more so that nowadays mankind is summing up the results of the XXth c. The present-day international law began to shape in the course of the Second World War on the crest of a democratic upsurge of the struggle against Hitler Germany and its allies. The foundation of this law was laid in the UN Charter. During the past fifty years radical changes have taken place in international law and now it is cardinally different from the law, which existed at the time of the League of Nations. The creation of the present-day international law is the result of the activity of the United Nations, all the organizations of its system. Hundreds of acts have been adopted within the framework of the UN, contributing to the formation of international law, such the 1970 Declaration on its principles, the 1974 definition of aggression. The creation of the norms of international law was facilitated by the General Assembly, the Security Council, the UN Conference on Disarmament, on human rights, on the environment, different UN organs commissions on international law, on human rights, on commercial law. A certain role was played by the decisions and consultative conclusions of the UN International Court. A tangible contribution was made by the international universal organizations the specialized UN bodies for example, the ICAO in the development of air law, and also the IAEA in strengthening the regime of the non-proliferation of nuclear weapons. The regional organizations, for example, the OSCE, the LAS, have supplemented the universal norms with regional norms. Naturally, the chief role was played by the main subjects of international law the states, including also our country, which has largely contributed to this process. Two aspects should be taken into consideration in the evaluation of international law (and its criteria should also be referred to the internal law):

1.What new norms were created and what is the nature of law? 2.How are these norms observed in practice?

The State of The Present-Day International Law Over the past half century more was done for the development of international law than over the two previous centuries. New branches have appeared space law, atomic law, information law, environmental law. A whole layer of international

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and legal norms came into being aimed at the reduction of military confrontation of states on disarmament, on measures of confidence, on banning the production and use of chemical and bacteriological weapons and their destruction, on the non-proliferation of nuclear weapons. The new international and legal norms were formed: a ban on the use of force or threat of force, i.e. to resort to war as a means of implementation of foreign policy and settlement of international disputes; an obligation to settle international disputes only by peaceful means, which was not the case in the period of the League of Nations; cooperation of states in defending human rights: now this problem is international and not internal. Humanitarian law defence of the victims of war, must now be applied at the time of not only interstate but also of internal armed conflicts. The norms have been adjusted to the present-day reality in such branches as ambassadorial, consular and maritime law, law of international treaties. After WWI, especially in the past decades, the regulation of internal relations by the international and legal norms was growing rapidly. In a number of countries, for example in Russia, the international and legal norms have become an integral part of their system and the norms of their international treaties have priority over the norms of internal law in the event of their collision. If a high estimate can be given of the development of the norms of international law in the XXth c., then the situation in the field of their observance is somewhat different. What was done to ensure the observance of the international and legal norms? One of the directions the improvement of the methods of settlement of international disputes. A greater role is being played by the preventive diplomacy, intermediaries, including the UN Secretary General, the international investigation and conciliatory commissions, the international arbitration and judicial organs. The UN International Tribunal has been set up on maritime law with broad powers. The UN has begun involved in the prevention and regulation of not only interstate, but also of internal armed conflicts. Starting from 1948 UN peace making operations have been conducted, which contributed to the cessation of armed conflicts, destruction of a number of countries, salvation of peaceful population. As was pointed out by the UN Secretary General K. Annan in his annual report on the work of the Organization in the year 2000, the measures undertaken along the UN line, its Security Council have resulted in the settlement of a number of armed conflicts, among them in Tadzhikistan, in East Timor, and some other countries. The process was going on to create international judicial institutions for the punishment of physical persons for committing military and other serious international crimes the tribunals for Yugoslavia and Rwanda, the International Criminal Court. A more active role in the struggle for the observance of international law is being played by other organizations members of the UN family, and also regional organizations. Nevertheless, despite all this, the observance of international and legal norms still remains on an insufficiently high level, especially in the most acute sphere the insurance of peace and security.

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In the second half of the XXth c. there were nearly 90 armed conflicts, true 80% of them are internal, whereas the UN was created for the prevention of interstate conflicts. Conclusion: the present-day international law, despite its violations, is democratic, progressive, it creates favourable conditions for maintaining peace and development of normal relations between all states. It is in accord with the interests of the entire world community, especially small states, which do not possess a powerful military and economic potential and for the defence of their interests can and must rely on force, and not on law. The present-day international law is also in accord with the interests of Russia and creates favourable conditions for the implementation of its foreign policy and the carrying out of reforms in the country. Prospects of Development of International Law in the XXIst Century Due to the objective factors the role of international law in the XXIst century will grow. The further voluntary limitation of sovereign rights of states will be taking place, because without this the development of relations between them is impossible, and the world is becoming more interdependent and closely knit. The use of coercive measures will continue to improve to insure the observance of international and legal norms. Taking into account the progressive, democratic nature of the present-day international law, its development must go on along the line of improvement of separate branches and norms with the preservation of the main principles, such as a ban on the use of force, territorial integrity, human rights and freedoms. In the Declaration of Millennium adopted on 8 September 2000 at the jubilee session of the UN, its members stated their determination to strengthen respect for the principle of the supremacy of law, both in international and internal affairs 1 and ensure justice and the supremacy of law. The proclamation of the supremacy of law in international relations is a new important landmark in the life of the world community. There are three main directions, along which international law in the XXIst century must develop: 1. Introduction, consolidation of the principle of the supremacy of law in international relations and its observance in practice; 2. Improvement of legal norms and international mechanisms for the maintenance of peace. 3. Development of new norms in connection with the scientific-technical , including the information revolution, with globalisation, with the development of international economic, social and other relations.

1 The Declaration of the Millennium approved by Resolution 52/2 of the UN General Assembly on 8 September 2000 (The Russian Yearbook of International Law. 2000. St. P., p. 334).

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Let us consider these directions: I. Supremacy of Law in International Relations

The Declaration of the Millennium adopted by the UN has announced the supremacy of law in international relations. The task is to consolidate this principle in the life of the world community and ensure its application in practice. For this not years but decades will be needed. To speed up the solution of that task it is necessary to carry out a complex of measures along the line of the UN, other universal, and also regional organizations, along the line of bilateral interstate relations. The coordinating role in this could be played by the UN, having the experience of holding the Decade of International Law in 1989-1999. The consolidation of the principle of the supremacy of law must be the chief task of the world community for the coming years. If this concerns bilateral relations, then Russia has been actively working on the application of the principle of the supremacy of law in international life. A number of recent joint statements of the Resident of Russia with the leaders of other powers speak about the supremacy of law: with India on 5 October 2000, with the European Union on 30 October 2000, with Cuba on 14 December 2000, with Canada on 18 December 2000. The Russian-Armenian Declaration stresses the importance of creation of a just international law and order of the XXIst century, based on the supremacy of law. It is useful to improve this wording, also pointing out in such statements that the sides will be working toward strengthening the principle of the supremacy of law in international relations and its undeviating observance in practice. It would also be useful that Russia should come out at the UN as the initiator of developing a comprehensive plan of measures for implementation of the principle of the supremacy of law in international relations. An important role in this process can be played by the parliaments of the UN member states, the mass media, the public, the non-governmental organizations, the scientific circles. The Declaration adopted on 1 September 2000 by the conference of the leaders of national parliaments stated the need for the proliferation of the principle of the supremacy of law on international relations. The impact of parliaments of the government of their countries in this direction would be of positive importance. The same role could be played by the mass media, and also scientists of various profiles and in particular international lawyers for a theoretical development of a number of aspects connected with the proclamation of the supremacy of law (the content of that principle, its place and role in the system of international and legal principles etc.). In this connection it is appropriate to remind that the Russian Association of International Law has been constantly addressing the power structure of Russia, the public with a call to largely step up the attention of Russia to international law both in the field of its foreign policy and in its

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internal life. Russia can and must be the leader in the struggle for enhancing the role of international law in the interests of the entire world community 2 There is still one aspect in the XXIst century the international law will be continuously implemented in the internal life of the states for the regulation of relations within the limits of the countries which will be of positive significance, especially for the powers where the process of democratisation and creation of a law-governed state goes on, such as, for example, in Russia. Special attention should be devoted to this process, improving in every way the methods and means of application of the international and legal norms in the internal life of the states. If one speaks about Russia, then here one of the most complex tasks is to ensure the application of the international and legal norms, in particular, the norms of international treaties of Russia by its judicial bodies. Special attention should be purposefully devoted to this problem. II. The Improvement of Norms and Mechanisms to Maintain Peace The nature of international and legal norms and mechanisms for the maintenance of peace is closely linked and, in point of fact, will be determined by what will be the nature of armed conflicts in the XXIst c. Taking into account the tendencies, which were taking place in this field in the past century, that in the new century the armed conflicts will be of three types: 1.Interstate, international conflicts; 2.Armed conflicts of non-international nature, internal conflicts; 3.UN operations with the use of armed forces, which can be divided into two categories: a) coercive measures carried out by the UN, including via regional organizations, in conformity with Chapter VII of the UN Charter; b) UN operations to maintain peace. It is impossible to consider all aspects of that direction: they are multifaceted. Let us dwell only on some of them. 1.After WWII almost 90 armed conflicts occurred, out of which 80% were armed conflicts taking place within the limits of the states, as they are called, which were not of international nature. And if one looks at the statistics of the past decade and especially of the last years, then they were mainly internal armed conflicts. Such conflicts assume an ever greater destructive nature, because during them military activity goes up, the most diverse arms are used, including heavy weapons tanks, artillery and air force. All this leads to the destruction of economy of the country, death of peaceful population (its share constitutes 80-90% of the victims), and sometimes to the collapse of the state. Therefore, the prevention and cessation of international armed conflicts become the primary problem in the

2 Statement of the Russian Association of International Law adopted at the 41st general meeting of the Association on 6 November 1998 (The Diplomatic Herald of the MFA of the RF No. 12, December 1998, p. 58).

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XXIst c., whereas interstate armed conflicts, the possibility of whose occurrence remains, is moved to the background. And although the UN, its Security Council began to tackle the regulation of internal armed conflicts, the measures that are being taken are clearly insufficient. A higher effectiveness of the UN operations to maintain peace is one of the cardinal issues. Their nature, as this is suggested in the report of the Brahami Group of Experts, must change, envisaging a broader use of coercive measures to the fighting sides (coercion to peace). And this will call for the development of new norms and improvement of international mechanism, in the first place the Security Council of the United Nations, its committees for the imposition of sanctions. Here it must be a question not about the expansion of the membership of the UN Security Council, although this issue must also be in the field of vision, but rather about increasing the effectiveness of work of the Council. 2.International terrorism is the second aspect of interstate armed conflicts. It assumes an ever growing danger, using the achievements of science and technology and the changes taking place in the world the scientific-technical revolution, the information revolution. Totally innocent people suffer from terrorism and a nervous, unstable situation sets in the country. The international community ahs already begun to react to this danger. The UN has made a number of decisions, recognizing that the acts of international terrorism are crimes irrespective of the fact whether they were committed for sake of any goals and that international terrorism poses a threat to peace and security (resolutions of the UN GA 49/60, 51/210, 52/164, 52/ 165 and 53/108, and also the decision of the UN Security Council 1967 (1999). In the light of these decisions international terrorism must be viewed not as an ordinary crime, but as a threat to the world community as a whole. In the past pirates were declared to be enemies of mankind. Presently international terrorists must be regarded from similar positions. Therefore, it is necessary to further develop international and legal norms for stopping this evil. One of the ways is the use of the right to self-defence in connection with the acts of terrorism, and also of the right to intrusion of the armed forces into the limits of another state, when hostages captured by terrorists were driven there, when their life is exposed to real danger, and the authorities of the state, where they are kept, do not take the necessary measures for their rescue. Although it is not simple to implement the latter measure practically, however, the appearance of the norm, which recognizes the lawfulness of such actions, can play a preventive role. In this case it is necessary to speed up the development of norms determining international terrorism, and also the acts whose commitment gives the right to make use of the armed force on the basis of the right to self-defence. 3.Still one more aspect in this direction preservation of the main, corner stone principle of the present-day international law on banning wars. Over the entire period of history of mankind the war has been a lawful means of carrying out foreign policy and settling international disputes. With the help of the armed force states were being created and destroyed, divisions and re-divisions

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of the world took place. Mankind has traversed a long and bloody road toward banning wars. Up to the XXth c. only norms were developed, which limited the methods and means of waging wars, they envisaged protection of the wounded, the sick, the prisoners of war, the civil population. In the period between the two world wars the principle of non-aggression was formed reflected in particular in the Treaty of Paris of 1928, referred to as the Brian-Kellogg Pact, in the definition of aggression (the London Convention of 1933) and in other documents. The UN Charter which banned the resort to armed force, the subsequent multilateral and bilateral international acts which confirmed and developed that principle, imparted it the nature of an imperative norm of international law jus cogens. Thus, the ban of war has been the greatest achievement of mankind in the XXth c. The tendency of departure of the interstate armed conflicts to the background was violated by the NATO armed attack against Yugoslavia under the banner of defence of human rights, the struggle with the regime of Slobodan Milosevic. The military actions of the NATO countries against Yugoslavia are an act of aggression a gross violation of their obligations under the UN Charter, the 1949 North Atlantic Treaty on the creation of that bloc (the right and obligation to use military force only in the event of an armed attack against one of its participants), the 1975 Helsinki Documents, the 1990 Paris Charter and many other international acts (in connection with this it is proper to remind the definition of aggression adopted by the UN in 1974 with the participation of countries, having NATO membership). This is a crime directed not only against Yugoslavia, but also against the international law and order, against the entire world community.3 NATO references to the defence of human rights in Yugoslavia look rather ambiguously. The Albanian authorities, the paramilitary formations drive out the Serbs from Kosovo, an ethnic purge is going on; the number of refugees from that region, who are not Albanians, reaches some 300,000. In March of 2001 the Albanian armed formations, leaning on Kosovo, started military actions against Macedonia, using the most diverse weapons, including those which were to be to be withdrawn from them. The process of disintegration of Yugoslavia goes on, although the decisions of the UN Security Council always stress the need for the preservations of its territorial integrity. The NATO troops stationed in Kosovo do not prevent all these illegal actions (although now Yugoslavia has a democratic government). The position of NATO countries looks strange; stating that they are coming out for the observance and consolidation of

3 The new democratic government which came to power in Yugoslavia also assesses NATOs military actions against Yugoslavia as an aggression See the address of President V. Kostunica, and also his joint statement with RF President V. Putin of 27 October 2000 (The Diplomatic Herald of the MFA of the RF # 11, November 2000, p. 32). The 1998 Roman Convention on the institution of the International Criminal Court, which by the end of the year 2000 was signed by 139 states, also recognizes aggression as the most serious crime.

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democracy in various countries, they at the same time violate the democratic international law. No less dangerous for the world community is also the humanitarian intervention, which is advocated by the US and other NATO countries. Although it is offered in an attractive wrapper, the gist of it is that these states strive to usurp for themselves the right to use armed force against any power, in which, in their opinion, human rights are violated or where an undemocratic regime exists. And this means that the concept of humanitarian intervention contradicts the basic principle of the present-day international law recorded in the UN Charter, according to which states may use armed force only in case if an act of aggression was committed against them (the right to self-defence under Article 51 of the UN Charter, and not for settling the issues such as what kind of social system and legal relations must be there) or following a decision by the UN Security Council. The concept of humanitarian intervention is a striving of the United States, and it is the determining force in NATO, to provide a legal basis for its line toward creation of a one-polar world. A question arises why NATO countries, and their number is only 19, i.e. 10% of the total number of UN members, must have the right to use armed force against this or that state, whereas the world community has authorized the UN Security Council for this. The membership in that Council of the states from various regions of world, Russia and China permanent members of the Council, creates favourable conditions for searching weighted, just decisions. It is known and the United States does not conceal this that it uses its armed forces, proceeding, in the first place, from its interests, and not from the interests of the world community.4 Moreover, the strategic concept, the humanitarian intervention put forward by NATO countries also completely disagree with the provisions of the North Atlantic Treaty of 1949 on the creation of that organization, in particular with its article 5. However the amendments in that treaty, and it was ratified by the parliaments of NATO countries, are not being made, although they are also subject to ratification. Thus, the organs of executive power of NATO countries act contrary to the provisions of the 1949 treaty, and this means that they, coming out for strengthening democracy and law and order in other countries, violate at the same time their own legislation.

4 The directive signed by President Clinton in the spring of 1994 stresses that US armed forces must be used for peacemaking operations only in case when this answers the U.S. national interests. In February of 2001, the air forces of the United States and Great Britain bombarded the environs of Baghdad, referring to the fact that the Iraqi anti-aircraft defences create danger for their pilots, controlling the northern and southern zones of Iraq. These zones where a ban was put on the flights of the Iraqi air forces were established by the United States and Great Britain unilaterally in order to limit the military actions of the Baghdad government against the Kurds. The Turkish government conducts active military actions against the Kurds, including also the territory of Iraq; the Turkish armed forces, over 10,000-strong, are equipped with heavy military arms, repeatedly intruded for these purposes into the limits of Iraq over a distance of up to 100 km from the border. However, it is not known that the United States and Great Britain took any kind of actions in this connection against Turkey which speaks of their unequal approach to similar situations military actions against the Kurds of the Baghdad government and the government of Turkey.

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The task of the world community, of all progressive forces is to impede the attempts to reverse history and return to the times when relations between states were determined by the gun boat diplomacy and force reigned, and not law. And criticism of NATO countries, and the United States in the first place, is heard not because of anti-Americanism, as it is sometimes asserted, but for the purposes of defence of the international law and order irrespective of the fact who breaches it: the United States, Russia or other powers. III. Development of New Norms in Connection with the Scientific-Technical Revolution (STR), Including Information Revolution, Globalisation, Development of International Economic, Social and Other Relations The impact of the objective factors influencing the life of mankind in the XXIst c. will grow and speed up processes taking place in the world community. The STR, information technologies, economic and other ties between states will be rapidly developing, accelerating the development of new spheres such the World Ocean, outer space. The of growth of the Earths population will increase: from 1804 to 1927 for 123 years it grew by 2 billion people; from 1927 to 1974 for 47 years, - up to 4 billion people and from 1974 to 1999 for 25 years, up to 6 billion people. Under the impact of man the state of the environment will deteriorate. This will call for the creation of new international and legal norms, adaptation of the already existing conditions to new ones. The task of the world community is organize and plan the development of international law in the XXIst c. in such a way so that it would prevent the aggravation of relations between states, contribute toward their normal development and regulation of the arising contradictions by peaceful means. To resolve that task it would be purposeful to work out within the framework of the UN, with the participation of other organizations of the UN System, a long-term plan of measures for the development of international law, all its branches. It would be possible to commence this work from the preparation by the UN Secretariat of the list of directions and problems, on which it would be useful to create new international and legal norms, to send this list for comments of the UN members, and then supplement it taking account of their comments and proposals. In the course of elaboration of such a list it would also be fruitful to use the non-governmental organizations, such as the International Association of International Law and its national divisions, and also scientific institutions and higher educational establishments of different countries involved in international law. Mankind, having scored the greatest achievements in the field of science and technology, must learn to live in conformity with law.

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FREEDOM OF INFORMATION: TO WHOM DOES IT BELONG?

Yu.A. Reshetov* The right to free expression of ones opinion is one of the most important human rights, having fundamental significance for the realization of also other rights and freedoms. Part 2, art. 19 of the International Covenant On Civil and Political Rights stipulates: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice. The European Court Of Human Rights has repeatedly spoken on the importance of the freedom of speech. Thus, in its verdict on the case of Handiside, the Court stated that the freedom of speech represents by itself one of the supports of democratic society.1 Subjects of the Freedom of Expression The question of who is the subject, the bearer of this most important right is of principle importance for the realization of that right. Both the international legal documents and the constitutional and other legislative acts of the overwhelming majority of states leave no doubt in this respect. The subjects of the right to the freedom of speech are people, all population, and not some of its strata, organizations or representatives, and including professional journalists. The content of the freedom of speech is freedom to seek, to receive and pro- liferate any kind of information and ideas namely by all, by all population, whereas speaking about professional newsmen, their activity must be objective. A false or distorted information morally prejudiced and legally punishable, it undermines internal stability in states, sets certain population strata against others, serves as a ground for confrontation and contacts between nations and states. International law also discloses the very notion of objective information. Thus, the Convention on the International Right of Correction established back in 1952 that professional responsibility of correspondents and news agencies requires from them that they report facts without discrimination and in their proper connection Consequently, a discriminatory attitude to facts, their flinching, silencing

* Yury A. Reshetov Professor of the Department of International Law MGIMO (U) the MFA of the RF 1 The European Court of Human Rights. Selected decisions. M., 2000. V.1, p. 209.

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of some facts and inflating others are incompatible with the objectivity of information, they represent biased information. The problem of objectivity of information is inseparably linked with the issue of independence of the mass information media and journalists. It is impossible to be objective, if some organ of the mass media or its journalists depend ideologi- cally or materially be it from the power as such, be it from a political party or an individual oligarch. The requirements of objectivity and independence demanded from the mass media answer the needs of a democratic social development and observance of human rights and freedoms and put up natural limits to the motto on freedom of the mass media. The public discussions on the role of the mass media organized and directed by the mass media themselves, no attention is devoted practically and deliberately to the issue of their objectivity and independence, and the public is deprived of the possibility to voice its opinion about objectivity and independence of these mass media. This issue, just like in Soviet times, has been left for kitchen debates, and in the mass media themselves it has been fully substituted by the issue of that freedom proper. Unlimited by anything, not taking into account the interests of the public, the freedom of the mass media does not exist, just like, for instance, it is impossible to speak about the freedom of states, without speaking about obligations, imposed on them by international law, including voluntary observance of their international obligations. The senselessness of the motto freedom of the mass media is well seen if it is compared with such a notion as the freedom of conscience (worship). The freedom of conscience is the right of every human being to the freedom of thought, conscience and religion, including the freedom of having or accepting the religion and convictions at ones choice and the freedom of worshipping ones religion and convictions, and in no case the freedom of separate confessions or their representatives to say anything that they thin fit, in the field of religion. The Need for Public Control Over the Mass Media In the leading countries the tendency grows stronger toward stricter public control over radio and television. Let us take for example Germany and the United States. While the press in those countries is free from state interference, other mass media are the object of state interference and regulation.2 Thus, The Constitutional Court of the FRG demanded that lawmakers should pass laws guaranteeing objectivity of information, diversity of viewpoints, support of democratic values and a certain level of quality.3 The Court stressed that Art. 5 of the Constitution of the FRG requires that the 2 Uli Widmaier Gererman. Broadcast Regulation // Boston College International and Comparative Law Review. 1998, No. 1, p. 79. 3 Ibid, p. 81.

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present-day instruments of shaping the public opinion should not be in the hands of the state or any separate social group.4 The freedom of broadcasting is first of all a freedom is the service of the freedom of shaping opinions,5 and that freedom is represented in the first place not interests of broadcasters, but rather in the interests of the public opinion.6 In 1991 the Constitutional Court of Germany supported the law on the organization of broadcasting in the land of North Rhein Westphalen. Guided by the principle of the need of reflection in it of various viewpoints the court underlined that important political, ideological forces and groups must be present in all activities of the stations.7 This law envisages a composition of the commission for broadcasting, consisting of 41 members, representing the land parliament and various religious, national, cultural, sporting, female and other organizations and trade unions.8 The same approach to the mass media also begins to emerge in the United States, which marks by itself the departure from the dominating until now of the full monopoly of the first amendment to the Constitution of the United States,9 which can be described as an absolutely unlimited domination of the freedom of expression of viewpoints, including the most extremist ones. Limitation of the Freedom of Expression In connection with the special responsibility, being an aftermath of the use of the freedom of speech, the present-day international law envisages a number of its restrictions. Article 19 of the International Covenant On Civil and Political Rights stipulates: 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but they shall only be such as are provided by law and are necessary: for respect of the rights and reputations of others; for the protection of national security, or of public order, or of public health or morals.

A still broader range of restrictions is allowed by the European Convention On Human Rights: The implementation of these freedoms, imposing obligations and responsibility, can be entailed with the formalities, conditions, limitations or penalty sanctions envisaged by law and necessary in democratic society in the interests of national security, territorial integrity or public calm, for purposes of

4 Ibid, p. 92. 5 Ibid, p. 96. 6 Ibid, p. 98. 7 Ibid, p. 108. 8 Ibid, pp. 112-113. 9 Ibid, p. 122.

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prevention of riots and crimes, protection of health and morality, protection of reputation or rights of other persons, prevention of disclosure of information received confidentially, or to ensure authority and impartiality of justice (item 2 art. 10). These restrictions cannot be, as we can see from the texts of these documents, arbitrary. They must be established by law of democratic society. As regards the first of these requirements, it is generally recognized, for example, in the practice of the European Court of Human Rights that the formula (established by law also spreads, of course, on the decisions of the courts. The necessity of adoption of these or other restrictions of the freedom of speech is determined proceeding from concrete considerations. States resort rather broadly to the establishment of restrictions of the freedom of speech, that is why in many instances the need for their introduction is disputed at the European Court of Human Rights. In the interests of national security in a number of states authorities establish for long periods of time a ban on the publication of data concerning the activity of state structures, including of diplomatic agencies and special services. Thus, a recent story with the publication of the memoirs of Richard Tomplin- son, a British intelligence officer, attracted the attention of the public regarding the ban on similar publications established by the judicial authorities of Great Britain.10 This interesting case is directly inked with limitations of the freedom of speech in the interests of prevention of riots, and practically also national security and territorial integrity; it was examined by the European Court of Human Rights in 1992. The circumstances of the case are as follows. In 1979, the applicant Spanish Senator Castells elected from the political movement, coming for the independence of the Country of the Basques, published an article in the weekly Ponto-I- Ora de Euscalgerria, in which he drew the attention of the public opinion to the killings and attacks of the armed groupings against Basque citizens. He asserted that these groupings were operating with complete impunity, because the government and the ruling party stood behind them. We must openly name those responsible, it was written at the end of the article. The organs of the Prosecutors Office started criminal proceedings v. Castells. He was deprived of his parliamentary immunity and on July 7, 1981 he was accused of the affront of the government (art. 161 of the Criminal Code of Spain). On 31 October 1983 the chamber for criminal cases of the Supreme Court recognized the applicant guilty and sentenced him to one year in prison. The Court believed that the situation of the applicant as a Senator obliged him to confine himself to the rules of procedure of the Senate and with which he did not comply. Moreover, his article demonstrated the intention to discredit the government. The Court refused to admit the evi-

10 The Nezavisimaya Gazeta. 27 January 2001.

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dence, which the defence asked to attach to the case in order to show that the information contained in the article was generally known and corresponded to reality. On 10 April 1985 the Constitutional court overrules Castells complaint. In its decision on this case the European Court noted that although according the Constitutional Court of Spain the interference was not resolving the task of defending law and order and national security, but practically safeguarded the honour of the government-plaintiff, the Constitutional Court itself in its decision of 10 April 1985 emphasized that state security can be threatened due to the attempts of discrediting democratic institutes. In his article Mr. Castells was not simply describing the serious situation in the Country of the Basques; he accused the authorities, in particular the police, of passiveness and even connivance at the organizers of the criminal activity, thus implying that the government was also responsible. Thus, one can say that in the concrete circumstances of Spain of 1979 the judicial persecution of the applicant for purposes of prevention of riots in the sense of article 10, item 2, and not only for protection of reputation of others persons Mr. Castells transgressed the usual limits of political discussion; he af- fronted the democratic government, contributing to destabilization in the critical period for Spain, to wit: soon after the adoption of the Constitution, when the groups of various orientation equally resorted to violence.11 According to the European Court, the freedom of political discussion, no doubt, is not absolute by its nature. The participating states can expose it to certain restrictions and or sanctions.12 However, the European Court, assessing the need of interference on the part of Spanish authorities, imparted a decisive importance to the circumstance that the Supreme Court of Spain refused to check the genuineness of facts given by Castells in his article, and acknowledged this interference as violation of article 10.13 In the practice of state and judicial organs a considerable place is occupied by the issues connected with the protection of reputation or the rights of other persons. In this respect it is interesting to mention the case of Lingens v. Austria at the European Court of Justice For Human Rights. On 14 and 21 October 1975 Lingens published in the Vienna magazine Pro- file two articles with sharp criticism of B. Kreisky, who was Federal Chancellor at the time, for his lenient attitude to F. Peter, a political leader and Chairman of the Liberal Party of Austria, who during WW II served in a SS brigade, and for the attacks, with which B. Kreisky came down on S. Wiesenthal, who publicly exposed the past of the chairman of the Liberal Party. B. Kreisky accused the applicant of defamation. On 26 March 1976 a district

11 The European Court v. 1, pp. 747-748. 12 Ibid, v. 1, p. 749. 13 Ibid, v. 1, pp. 749-750.

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court in Vienna partially recognized the accusation and sentenced Lingens to a fine of 20,000 Schillings. In regard to the complaint submitted by both sides, the Court of Appeals of the city of Vienna overruled the decision and sent the case for a new examination of the District Court, which on 1 April 1981 confirmed its previous verdict. Lingens again lodged a complaint, and on 29 October 1981 the Court of Appeals reduced the fine to 15, 000 Schillings. In its decision the European court noted that the articles by Lingens contained both facts and evaluating opinions (thus, he accused Kreisky of the trashy oppor- tunism and immorality), between which, according to the court, one should thoroughly distinguish. The existence of the facts can be proved whereas the authenticity of evaluating opinions cannot always be proven. In this connection the court found that interference in the implementation of the freedom of speech of Lingens was not necessary in democratic society, so consequently, article 10 was violated.14 The case of Jersild v. Denmark should also be referred to the same group of cases on the protection of reputation or the rights of other persons from the viewpoint of the European Convention On Human Rights. During the events which served as a pretext for the emergence of that case, Jersild, a citizen of Denmark, a newsman in the service of the Danish Radio Broad- casting Corporation, was delegated at the disposal of its Sunday news program The Sunday News Magazine. On 31 May 1985 the newspaper Information published an article which described the racists moods of a group of young people, who called themselves green jackets, from Osterbro, in Copenhagen. In the light of that article an editor of the Sunday News Magazine decided to make a documentary on the green jackets. Later on, the applicant contacted representatives of this group, by invit- ing three of them to participate in a TV interview. During the interview, which was conducted by the applicant, three members of the above mentioned group were making insulting and scornful remarks addressed to the emigrants and other ethnic groups in Denmark. All this went on for five-six hours, out of which two or two and a half hours were video taped. Later the applicant edited and shortened the film made from that interview up several minutes. On 21 July 1985 it was broadcast by the Danish Radio Broadcasting Corporation. Some time later criminal proceedings were instituted: against three young men for their racist statements based on art. 266 (b) of the Criminal Code of Den- mark, and against the applicant and the manager of the news desk of the Danish Radio Broadcasting Corporation for complicity in aiding and abetting for their proliferation on the basis of art. 266 (b) and art. 23. The above persons were con- demned on 24 April 1987 by the city court of Copenhagen. Jersild was fined to 1000 DK. He and the manager of the news desk submitted an appeal against the decision of the city court, which, however, was supported by the court of East Denmark and the Supreme Court.

14 Ibid, v. 1, pp. 528-530.

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In their decision the majority of the European court members, having rejected the arguments of the Danish judicial instances, said that this TV broadcast was planned as part of the discussion in society and publications in the press regarding racism and did not objectively look like a material, whose aim consisted in the propaganda of racist ideas and outlooks.15 The court ruled by 12 votes against 7 that a violation of the article occurred.16 At the same time four judges in their special opinion stated that the the court majority attached greater importance to the freedom of speech of the journalist than to the protection of those was forced to suffer from racial hatred. Both from the written text of the interview, and from the video film, which we had seen, it was obvious, that the statements of the green jackets could not be tolerated in society based on the observance of human rights.17 Having pointed out that the newsman did not clearly voiced his unfavourable attitude to racism, they further underline the following: The International Con- vention On the Elimination of All Forms of Racial Discrimination does not possibly call for punishment of newsmen, responsible for the preparation of TV topics of such a kind. On the other hand, it supports the viewpoint that the news media also must take a clear-cut stand on the issue of racial discrimination and hatred.18 We are convinced that the Danish courts acted inside the margin of appreci- ation, which must be left to the contracting states in this sensitive area. According- ly, the findings of the Danish courts cannot be considered as giving rise to the violation of article 10 of the Convention.19 It is also interesting to note the special opinion of the three other judges. They declared directly that a ban to protect racial hatred is undoubtedly one of the limitations allowed by article 10, item 2, and that the International Convention On the Elimination of All Forms of Racial Discrimination cannot be ignored in the case of application of the European Convention and the European Court Of Human Rights must abide by it in its decisions. The freedom of speech, they emphasized, must not spread on the incitement to hatred and on the contempt to the nations other than the one to which we belong.20 The growing interest to the problem of limitation of the freedom of speech on basis of ensuring authority and impartiality of justice was demonstrated by the examination of the European court in 1979 of The Sunday Times case v. the United Kingdom. The circumstances of this case are as follows. In the period between 1959 and 1962 in Britain many children were born with defects, as was asserted, due to the fact that their mothers took thalidomide during pregnancy as tranquilisers and as a means against sleeplessness. The parents started the court proceedings versus the

15 Ibid, v. 2, p. 26. 16 Ibid, v. 2, p. 29. 17 Ibid, v. 2, p. 29. 18 Ibid, v. 2, pp. 29-30. 19 Ibid, v. 2, p. 30. 20 Ibid, v. 2, pp. 30-31.

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manufacturer and seller of thalidomide in the United Kingdom the Distillers Company (biochemicals). In September of 1972 the newspaper The Sunday Times published an article entitled Our Thalidomide Children the Cause of National Shame and announced its intention to continue publications, tracing the history of the tragedy, starting from manufacture to testing the medicine. The Distillers Company sent an official representation to the Prosecutor General, asserting that the above articles represented by themselves a contempt of court, because the proceedings on the case were not yet completed. The Prosecu- tor General decided to apply to court for an injunction on these publications. The injunction was issued in November of 1972.On its part, the newspaper asserted that the norms on the contempt of court, called on to safeguard independence and impartiality of the judicial power, cannot be understood as a ban on professional journalists to perform their duties. According to them, the issue calls for a legislative solution. The court of appeals cancelled the injunction, but after the appeal of the Pros- ecutor General to the House of Lords the latter on 18 July 1973 unanimously resorted the validity of this injunction. The House believed that the publications of the would be article will constitute a contempt of court, because it will, probably, cause prejudice among the public regarding the dispute, being a subject of an unfinished investigation, including the talks about an amicable agreement between the plaintiffs and the Distillers Company. The validity of the injunction was finally stopped in 1976, and in 1981 the Law was passed on the contempt of court, replacing the precedent norms. The European Court while considering that case devoted much attention to the issue of pressure on court. Here it referred to the working given by judge Buckley in 1966: The appearance of comments on the current judicial process in any form, capable of inflicting damage on a just examination of the case, will be on the part of the newspaper a contempt of this court. This can take place differently. It can happen so that the comment will exert pressure in one way or another on one of the parties in this case, to wit: to hamper it to conduct the judicial process, to prompt it to agree to an amicable agreement on such terms, which it would not agree to consider under different circumstances, or to influence in some other way the conduct of the case where it must be free to select the means of accusation and defence, using advises but not being pressured.21 The court further underlined that the initial obligation to ensure the rights and freedoms embodied in the Convention, are borne by the participating states themselves. Accordingly, article 10, item 2, leaves a certain sphere of discretion to the contracting states. This sphere is granted both to the law maker and the organs, judicial organs, which are called on to interpret and apply the existing legislation.22

21 Ibid, v. 1, p. 202.

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Further on, the court decisions say the following: The statements made at the House of Lords voiced concern that the proper legal procedure can be deprived of the respectful attitude to it, and the function of the courts will be usurped, if the opinion of the public on the issues, which are the subject of judicial investigation, will be formulated prior to its consideration by court or if the participants of the judicial process will have to go through the court of newspapers. Such concern by itself corresponds to the task of maintaining the authority of justice in the form as this expression is understood by the Court. If the issues, arising in the course of the examination of a dispute in court, are made public in such a manner that lead to an early formulation among the public of its own opinion on them, then it may lose its confidence and respect to courts. One should not exclude the fact that the habit of the public opinion to a regular show of a pseudo-court in the news media may have in the final count harmful consequences of perception of the courts as a proper place of the settlement of legal disputes. Nevertheless, the article, which was supposed to be published in the The Sunday Times, was written in moderate expression, it did not represent evidence unilaterally and did not insist that there existed only one possible outcome of examination of this case, to which the court had to come. Although it analysed in detail the evidence against the Distillers, it also summed up arguments in defence of the company and ended in the following words: It looks like there are no clear answers in this case.23 Taking into consideration the circumstances of this case, the Court has come to the conclusion that the protested interference does not correspond sufficiently to the immediate social need, which would outweigh the interest of the public in the implementation of the freedom of speech in the sense of the Convention. Con- sequently, the Court finds arguments in favour of the imposed limitation on the applicants in conformity with article 10, item 2, as insufficient. This limitation turned out to be disproportionate to the pursued lawful goal, it was not necessary in democratic society to maintain the authority of justice. Accordingly, a breach of article 10 existed.24 In the joint special opinion several judges underlined that the institutes and the procedure of the judicial system may essentially differ from one country to another. Thus, despite the fact what the majority of the Court believes, the notion of the authority of justice is in no way separated from the national peculiarities and cannot be defined as uniformity.25 The above deliberations preserve their importance in regard to the actions or situations capable of inflicting damage to the proper functioning of justice, whose evaluation can only be made in the interstate context for the given period. Thus, the national authorities are called on to carry out the initial estimate of the danger, 22 Ibid, v. 1, pp. 205-206. 23 Ibid, v. 1, p. 208. 24 Ibid, v. 1, p. 211. 25 Ibid, v. 1, pp. 217-218.

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threatening the authority of justice, and judge what limitations measures will be needed to fight this danger. The relevant limitations may vary depending on the peculiarities of the legal system and traditions of the country. Within the limits compatible with the requirements set to democratic society an interested state is free to determine by itself what methods will be the most suitable to maintain the authority of justice.26 According to these judges, basing on the materials available to the Court, the breach of article 10 cannot be considered established. In the practice of the European court there are also cases concerning the refusal to issue licenses for radio and TV broadcasting. The case of Informationsverein Lentaja and others v. Austria is of interest. The subject of the present case is refusal of the Austrian authorities in the person of regional organs of management of posts and telecommunications to issue licenses the local radio broadcasting TV communications enterprises. The first applicant, who received such refusal, is the Informationsverein Lentja, a company that intended to set up a closed cable network called on to pool numerous cable services in Linz. After the refusal of the regional directorate was confirmed by the National Directorate of the Posts and Telecommunications, the company appealed to the Constitutional Court. The latter referred to Article 10 of the European Convention, which stipulates that this article does not prevent states to carry out licensing, including such licensing which is described in the present case. Therefore, according to the Constitutional court, although article 10 is aimed at guaranteeing the freedom of opinions and information, this does not mean that such kind of license can be obtained by anyone who wants. The Federal Constitu- tional Law of Austria of 23 November 1979 referred the entire sphere of radio and TV broadcasting to the domain of the state, that Law has practically reserved the right to broadcasting to the National Radio Broadcasting Corporation, and there is no other legally applicable act, except the Law, regulating the activity of that organization. The Constitutional Court transferred the case to the Administrative court, which in its turn refused to satisfy the application for the issuance of the license on 10 September 1986. In point of fact its decision repeated the logic of the deliberations of the constitutional court. Between 1987 and 1989 the second applicant worked together with other persons on the project of the creation of a private radio station in Carinthia. Later on he abandoned his plans having learnt that according to the existing legislation as it is interpreted by the Constitutional Court, it is impossible to obtain the necessary license. The third applicant is the Austrian Association, a member of the European Federation of Free Radio Stations. In 1988 it tried to get a license for the creation in Southern Carinthia of a radio station to broadcast commercial programs in Ger- man and in Slovak. It received a refusal first from the directorate of posts and

26 Ibid, v. 1, p. 218.

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telecommunications of Klagenfurt, and later from the Chief National Directorate of Posts and Telecommunications in Vienna on 19 December 1989 and on 9 Au- gust 1990, respectively. On 30 September 1991 the decision was confirmed by the Constitutional Court. The fourth applicant, an Italian joint stock company, which broadcasts commercial programs inside Austria. It would like to be involved in the similar activity in the country proper. However, taking into account the existing legal practice, it decided not to apply to the relevant authorities. The fifth applicant is a private company registered as a joint stock company under the Austrian legislation. On 8 October 1988 it addressed the regional directorate of posts and telecommunications of Lintz with a request to allocate a fre- quency for a local radio station, which it proposed to set up in Salzburg. On 28 April its request was turned down. On 12 July 1989 the decision on the refusal was confirmed by the Chief Directorate of Posts and Telecommunications, and on 18 June 1990 the complaint was declined by the Constitutional Court. In the course of the hearings at the European Court the Austrian Government drew the attention first of all to the political aspect of the activity of the audiovis- ual information media. In Austria the constitutional law in article 1, item 2, on radio broadcasting points out to its goals: to guarantee objectivity and impartiality of information, balanced programs, independence of persons and organizations, responsible for broadcasting. From the viewpoint of the government only the existing system, based on the monopoly of the Austrian Broadcasting Corporation, gives the authorities the possibility to ensure the attainment of these goals. The existing legislation and the charter of the Austrian Broadcasting Corporation envisage independence of programs preparation, freedom of newsmen and a balanced representation of political parties and social groups in their managerial organs.27 However, the arguments of the government have not convinced the Court. According to it, they contradict the experience of several European states where there is state and private broadcasting and the creation of private monopolies is prevented. The Court ruled that there was a breach of article 10 of the Conven- tion.28 Analysing the application of article 10 of the Convention on Human Rights by the European Court of Human rights, it is possible to agree with the opinion of P. Sigurdsson, an Icelandic lawyer, that the Court has tendency of unlimited interpretation of its provision on the possibility of restrictions of the freedom of expression and the freedom of discretion of authorities in this respect to which it refers.29 In this way it makes questionable the ability of the authorities to assess correctly the concrete circumstances, prevailing in the participating states, and ac-

27 Ibid, v. 1, pp. 828-829. 28 Ibid, v. 1, pp. 830-831.

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cordingly, to react to them in those cases when the mass media abuse of the freedom of speech, dangerous for the public order in these states. Thus the position of the majority of the Court members causes objections among the considerable part of its membership, who voiced their dissenting opinions on a number of most important cases in the practice of the Court in this field.

29 Pall Sigurdsson. Fjoelmidlarettur Reykjavik 1997 s.69.

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ANALYSIS OF APPLICATIONS OF CITIZENS TO THE EUROPEAN COURT OF HUMAN RIGHTS VERSUS THE RUSSIAN FEDERATION

B.L. Zimnenko* In the UN Millennium Declaration approved by Resolution 55/2 of the General Assembly of 8 September 2000, it was pointed out that the heads of state and government are determined to strengthen the respect for or the principle of the rule of law, both in international and internal affairs. In this connection, the defence of the rights and freedoms of man is one of the most important directions in the realization of this principle. In implementing national lawmaking the states must take into account international rules in the field of human rights. As is known, in the light of the present-day international law the defence of human rights refers not only to the internal competence of a state. At present, there are international institutes and mechanisms, controlling the execution by a state of its international obligations in the field of human rights. One of such institutes is the European Court of Human Rights set up according to the European Convention for the protection of Human rights and Fundamental freedoms in 1950 and considering, in particular, complaints of citizens versus those participating states, which violate the rights and freedoms stipulated by the Convention. Starting from 5 May 1998 this instrument of control has become obligatory for the Russian Federation. This provision fully accords with the Constitution of the Russian Federation, pursuant to which in conformity with the international treaties of the Russian Federation every one shall have the right to turn to interstate organs concerned with the protection of human rights and freedoms, if all available internal state means of legal protection have been exhausted (part 3, Article 46). In case of addressing the Court, a citizen should pay attention to the clear observance of rules and comply with all the requirements set to the form of complaint. This is the most important condition at the initial stage of processing complaints, because from this it will depend whether an application will be accepted

* Bogdan L. Zimnenko LLD (Law), a member of the Moscow City Bar Association, a lecturer of the Diplomatic Academy of the Russian Foreign Ministry. The present article gives examples of certain decisions of the European Court of Human Rights from the official site of the Court: www.dhcour.coe, chapter Judgments and decisions. It is possible to find the necessary decision of the Court with the help of the search system the case-law collection(s) system, which is also on the official site of the European Court.

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for consideration or not. In the Russian literature there are already a number of publications explaining the order and the conditions of applying to the European Court.1 By the present time the Committee of the Court composed of three judges, acting on the basis of Article 27 of the Convention, has already recognized more than 1,500 complaints submitted versus Russia as inadmissible. In the Secretariat of the Court more than one thousand complaints have been submitted for registration. The Chamber of the Court composed of seven judges examined 11 complaints against Russia, seven out of which have been recognized unacceptable, three complaints partially unacceptable and one complaint was excluded from the list in connection with an amicable settlement of dispute (Article 39 of the Convention). The criteria of admissibility of individual applications have been formulated in Articles 34-35 of the Convention. These articles provide answers to the following main questions: who has the right to apply to the European Court of Human Rights? What is the exhaustion of all internal means of legal defence and the final decision on the case adopted by the national organ? During what period of time is a person entitled to apply to the Court? Does the Court have competence to consider a complaint in regard to facts and circumstances that took place prior to the coming into force of the Convention for a state? Is a person entitled to lodge a complaint against the actions of a state concerning the violation of rights and freedoms not envisaged by the Convention? To answer these questions in the present article the analysis will be made of the examination by the Court of the first complaints versus the Russian Federation which represents not only a theoretical but also practical interest. Who Has the Right to Apply to the European Court of Human Rights? In power of Article 34 of the Convention the Court may receive application from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. Article 34 of the Convention and judicial practice make it possible to draw a number of important conclusions in regard to the subjects possessing the right of application to the European Court. Firstly, not only Russian citizens but also foreigners may apply to the Court asserting that they were victims of the breach of the rights by the Russian Federation. For example, the European Court has dealt with the case versus the Russian Federation following an application of the Lithuanian citizen claiming that his detention, arrest in Russia and extradition to the authorities of Lithuania was against the law in the sense of Article 5 of the Convention (case No. 53254/99).

1 See, for example: V.A. Kartashkin, How to lodge a complaint to the European Court of Human Rights, M., Norma, 2000; A.M. Zrdelevsky, Applying to the European Court, M., Yurist, 1999 and others.

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Secondly, as it follows from the content of Article 34, both natural and legal persons have the right to apply to the European Court. For example, according to Article 1 of Protocol No. 1 of the Convention each physical or legal person is entitled to the peaceful enjoyment of his possessions. If a state violated this right, which belongs to a legal person, then the latter may also apply to the Court with an application against the actions of the state. In the case of Stran Greek refineries and Stratis Andreatis versus Greek the legal persons appealed to the Court, asserting that in violation of Article 1 of Protocol No. 1 the Government of Greece refused to comply with the decision of the Court of Arbitration on the exaction from it (the Government) of money in favour of the Stran Greek refineries.2 In the customary international law a rule is contained according to which a state bears responsibility not only for the actions of its organs and officials, but also for the activity of natural and legal persons who are under its jurisdiction.3 The judicial practice provides evidence of the fact that when it is a matter of violating by the state of the rights and freedoms of man stipulated in the Convention, then here the law means only the activity of the state (executive, judicial, legislative) and local (municipal) authorities. In the case of Belvedere Alberghiera v. Italy (No. 31524/96) the right of peaceful enjoyment of possessions has been violated by the municipal authorities which paved the road across the territory which belonged to the applicant. With regard to Russia, it is necessary to underline that if human rights and freedoms were violated by the municipal authorities, the authorities of the subject of the Russian Federation or by the authorities at the federal level, then in all these cases due to Article 34 of the Convention namely the Russian Federation, as a participating state, shall be held responsible in the Court. In this connection, one should pay attention to the circumstance that if the subjects of relations that arose due to the violation of law are not private person state, and exclusively private persons, then such relations cannot be the object of consideration by the European Court. A person has no right to lodge a complaint to the Court against the decision of a national court, which resolved a dispute between private persons. However, if when such a decision was made by the state and the right of the person was violated for a just and public investigation of the case within reasonable time limit by an independent and impartial court set up on the basis of law (Article 6 of the Convention), then this person is entitled to complain against the relevant actions of the state. In this case the subject of consideration by the European Court will be the fact of violation by the state of the right of the person and not the decision of the national organ. These conclusions are fully confirmed by the European Court case law. For example, in its decision of 22 June 1999 on the case of L. F. Tumilovich versus Russia (No. 47033/99) the Court, declaring the application as inadmissible, recalled:

2 The European Court of Human Rights. Selected decisions, M., Norma, 2000. Vol. 2, pp. 54-68. 3 I.I. Lukashuk, International law. General part, M., Bek, 1997, p. 180.

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according to Article 34 of the Convention it may deal only with complaints concerning actions of the State itself or matters for which the State may be held responsible under the Convention. An individual cannot complain of the actions of a private person or body as such. What is the Exhaustion of All Internal Means of Legal Defence as Applicable to the Judicial System of Russia? As it follows from paragraph 1 of Article 35 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted according to the generally recognized rules of international law. This rule, calling for the exhaustion of all domestic remedies prior to the submission of complaint to the international organ, is a general principle of international law, stemming from the conviction that the states should be given the possibility to correct mistakes connected with their violation of international commitments, in the first place through the national legal institutes. As is known, in the Russian Federation the majority of the cases, in which the state acts as a party, are considered in the courts of general jurisdiction and the courts of arbitration.4 Articles 282, 315 of the existing Civil Procedural Code of the RSFSR (in the edition of 7 August 2000) provide that the decisions and definitions of all courts of general jurisdiction can be complained in the order of cassation. Articles 145, 160, 161, 179 of the Arbitration Procedural Code of the Russian Federation also point to the fact that persons, participating in the case, have the right to lodge appeals and cassation complaints to the decision and definition of the court of arbitration. Consequently, in the Russian Federation the exhaustion of all domestic remedies will be the submission to the cassation instance both in the general jurisdiction courts or the arbitration courts and receipt of the relevant judicial act respectively. The address of the citizens with an application for a supervisory review, the appeal to the Constitutional Court of the Russian Federation, the constitutional (charter) courts of the subjects of the Russian Federation are not obligatory in order to lodge a complaint to the European Court. This conclusion finds its confirmation in the Court case law. In the earlier mentioned case of L. F. Tumilovich versus Russia the Court drew the attention to the fact that applications for a supervisory review constitute extraordinary remedies, the use of which depends on the discretionary powers of the President of the Civil Chamber of the Supreme Court of the Russian Federation and the Deputy Prosecutor General, and do not, therefore, constitute effective remedies within the meaning of paragraph 1 of Article 35 of the Convention. Considering this criterion it is also necessary to pay attention to the following situation. If, for example, a person missed the deadline for complaining against the decision to the cassation instance and the higher court refused him (the person) in satisfying his request on the restoration of the deadlines, is it possible in this

4 It does not say about the arbitration but of the state arbitration courts of the Russian Federation.

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case to assert that the person has exhausted all internal means of legal defence? The practice of the European Court gives a negative answer to that question. In the decision on the case of Ben Salah Adraqui and others v. Spain (No. 45023/98) of 27 April 2000 the Court, declaring the complaint inadmissible, stressed that according to Article 35 of the Convention, the Court considers the case only after all domestic remedies have been exhausted. In accordance with the Court case law this requirement is viewed as not observed, if the person could not make use of any remedy due to the violation by him of the formalities envisaged by law. In this case, the claim to the Constitutional Court was declined in connection with the violation of the deadline missed by the applicant, because he tried to use other domestic remedies, which are not obligatory. Due to the above statement, the applicant has not exhausted all domestic remedies and therefore his application is declared inadmissible. What is the Final Decision on the Case Adopted by the National Organ? As it follows from paragraph 1 of Article 35 of the Convention a person has the right to apply to the Court given the availability of the final decision on the case taken by the national organ. The criterion of the final decision on the case is directly linked with the criterion of exhaustion of all domestic remedies. It is possible to speak about the final decision only when the person within the framework of the national legal system exhausted all domestic remedies. The requirement of the Convention on the availability of the final decision on the case means that at the moment of application to the European Court this decision adopted as a result of the exhaustion of all domestic remedies must not be the subject of examination in the future by national organs. If the Court found out that in regard to the final decision a protest was made or, for example, the case was handed over by the higher court for the new examination to the lower standing instance of the court, whose decision (decree, definition) was cancelled, then the complaint of the applicant will be declared as inadmissible. This circumstance does not mean in any way that the person loses his right afterwards to appeal to the European Court. After receipt of the new final decision on the case a person is entitled again to lodge a complaint to the Court. In the decision of 10 October 2000 on the case of I.V. Panchenko versus Russia (No. 45100/98), according to which the applicant, in particular, complained the illegality of his arrest, detention, the Court emphasized that by the definition of the Oktyabrsky district court of St. Petersburg of 13 April 1998 the civil case concerning the return of the confiscated property was adjourned up to the end of the judicial investigation on the criminal case. The legality and foundation of this judicial act was confirmed by the definition of the St. Petersburg City Court of 27 May 1998. Taking into consideration that the case was adjourned, therefore the court proceedings are pending, the Court in that part declared the complaint inadmissible.

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During What Period of Time is a Person Entitled to Apply to the Court? In conformity with paragraph 1 of Article 35 of the Convention the Court may deal with the matter within six months from the date of taking the final decision on the case by the national organs. The six-month deadline is calculated from the moment when the person learned or had to learn about the violation of his right by the state.5 However, if this or that action of the state, for example, does not envisage the possibility of complaint, then the six-month deadline is calculated from the date when such action was made. In the decision of 17 October 2000 on the case of V. Karalevikus versus Lithuania and Russia (No. 53254/99), connected with the complaint of the applicant regarding the illegality of his arrest, detention and extradition in favour of the Lithuanian authorities, the European Court noted the following: according to paragraph 1 of Article 35 of the Convention the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the «final» domestic decision. In the absence of an adequate remedy against a particular act which is alleged to be in breach of the Convention provisions, the date when that act takes place is the «final» for the purposes of the six-month rule (see also the case of Valasinas v. Lithuania, No. 44558/98, the decision of 14 March 2000). The Convention does not contain the possibility of restoration of the six- month deadline missed even for a valid reason. Therefore, if the person intends to complain the cassation decision (definition) in the order of supervision, he should do it simultaneously with the submission of the complaint to the European Court. Otherwise, in the absence of judicial acts adopted in the order of supervision, the applicant loses the possibility of application to the European Court due to the missing of the six-month rule.6 Does the Court Have the Competence to Examine the Complaint in Regard to the Facts and Circumstances Which Took Place Prior to the Coming into Force of the Convention for the State According to the generally recognized rule of international law, the European Convention on the defence of human rights and fundamental freedoms is not applied

5 See D. Gomien, D. Harris, L. Zwaak, Law and practice of the European Convention on Human Rights and the European Social Charter, M., the Publishing House of the Moscow Independent Institute of International Law, 1998, pp. 77-78. It is necessary to note that this book was written into account the work of the control mechanism of the European Court, effective up to 1 November 1998. In connection with the adoption of Protocol No. 11 of the Convention presently the new control mechanism of the Court is in operation. In particular, now there is no European Commission on Human Rights. 6 For more details see: Law and practice of the European Convention on Human Rights and the European Social Charter, p. 77.

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to those facts and circumstances, which took place prior to its coming into force for the participating state. This provision found reflection in the Federal Law On ratification of the Convention for the protection of human rights and fundamental freedoms and Protocols to it of 30 March 1998. As it follows from Article 1 of the Law, the Russian Federation recognizes the jurisdiction of the European Court as obligatory on the issues of interpretation and application of the Convention and Protocols thereto in the cases of the alleged violation by the Russian Federation of the provisions of these treaties, when the alleged violation took place following their coming into force for Russia. However the above rule is not always taken into account by the persons appealing to the European Court that leads to the declaring of their complaints as inadmissible. On the case of I. V. Panchenko the Court pointed out that the applicant refers to the events that occurred between April of 1996 when the investigation was completed, and 17 July 1998, when the trial court found the applicant guilty. The Court reiterates that it can only examine events that took place after 5 May 1998 which is the date of entry of the Convention in respect of Russia. Taking into account everything said above, part of the complaint concerning the events that took place prior to 5 May 1998 is outside the competence of the Court (ratione temporis) and thus, is incompatible in the sense of paragraph 3 of Article 35 of the Convention. On the case of V. M. Syrkin versus Russia (No. 44125/98), when the applicant asserted the absence of effective legal defence of his rights (Article 13), in the decision of 25 November 1999 the Court recalls that the complaint of the applicant relates to events which started in 1991, that is, prior to 5 May 1998. In accordance with the generally recognized principles of international law the Convention is binding obliges on the Contracting States only in respect of the facts occurring after its entry into force. Consequently, if the person in his complaint refers to the circumstances which took place prior to the coming into force of the Convention for the relevant state, then such complaint is declared inadmissible by the Court within the meaning of paragraph 3 of Article 35 of the Convention. A question arose in the Court case-law: if the circumstances to which the applicant refers in his complaint took place prior to the coming into force of the Convention for the Contracting State and the final decision on the case was made following the indicated date, then is such complaint admissible? According to the European Court case law in this case the complain can be declared admissible. In the decision of 20 June 2000 on the case of O. V. R. versus Russia (No. 44319/98), concerning the violation of rights stipulated in Articles 11 and 14, the Court noted that although most of the facts and proceedings complained of relate to a period prior to the entry into force of the Convention with regard to Russia on 5 May 1998, the final judicial decision was taken after that day. Therefore it considers that case as such falls within its ratione temporis.

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Is a Person Entitled to Lodge a Complaint Against the Actions of the State Concerning the Violation of Rights and Freedoms not Envisaged by the Convention? A negative answer should immediately be given to this question. The European Court examines exclusively the issues connected with the violation by the participating state of the rights and freedoms guaranteed by the Convention and Protocols thereto. If the applicant in the text of the complaint refers to the rights and freedoms not stipulated in the Convention (Protocols), then such complaint is declared inadmissible. Unfortunately, this condition, as a rule, is not abided by the citizens of Russia when they appeal to the European Court. On the case of V. Cherepkov versus Russia (No. 51501/99) the Court declaring the application as inadmissible, in its decision of 25 January 2000, including, pointed out that the requirements of the applicant on the availability of the violation of his right contained in Article 3 of Protocol No. 1 are unfounded, because the applicant participated in the municipal elections of the mayor, but Article 3 of Protocol No. 1 guarantees participation in the elections of the legislative authority which, according to the Constitution of the Russian Federation, belongs to the State Duma and the Federation Council. On the above case of V. Karalevikus the applicant, in particular, drew the attention of the Court to the violation of his rights stipulated in Article 3 of the Convention banning to subject anyone to torture or to inhuman or degrading treatment or punishment. The applicant appealing to Article 3 also referred to numerous violations made by the state while transferring him from one prison to another. The Court, declaring the application as partially inadmissible, underlined that Article 3 of the Convention does not guarantee, as such, the right to be detained in a prison of ones own choosing. On the case of D. Lukash versus Russia (No. 48041/99) the applicant who did not submit in time a certificate of his invalidity to the examination commission, could not enter on general terms the law faculty of St. Petersburg University. The judicial instances recognize the invalidity of his demands. The applicant presumed that the state violated his right to education envisaged by Article 2 of Protocol No. 1 of the Convention. The Court, declaring the application inadmissible, in its decision of 16 November 1999 pointed out that in any case Article 2 of Protocol No. 1 permits limiting access to universities to those who duly applied for entrance and passed the examinations. Moreover, the applicant who did not pass the examinations to St. Petersburg University, was not prevented from enrolling in any university or other educational establishment. A large number of complaints which are kept at the Registry of the Court concern the untimely payment by the state of pension allowances. The European Court considers such actions of the state as violation of Article 1 of Protocol No. 1 of the Convention. Therefore, if the untimely payment of pension took place following the coming into force of the Convention for the Russian Federation and

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in the event of observance of other criteria of admissibility, then applicants have good chances to satisfy their demands. This is what occurred in the case of Yu. Taikov versus Russia. The applicant who applied on 6 January 1999 to the Court asserted that the state starting from 1995 was untimely paying him the pension in old age, all his claims to the state organs of social security remained without satisfaction. The European Court on 28 March 2000, guided by item 1 of Article 37 of the Convention decided to strike the application out of its list of cases in connection with the conclusion by the applicant of an agreement with the state, according to which the latter committed itself to pay out to the applicant 93,898 rubles for the period going from August of 1995 to August of 1999. Examining the case, the European Court analyses the national legislation, the judicial practice for the definition how they correspond to the Convention provisions. However, in the resolution part of the decision the Court only holds the fact whether there was a violation by the state of the provisions of the Convention or not. The Court cannot declare a law or a court decision as contradicting the Convention, because this is outside of its competence. Due to this the Court may not oblige the state to make changes in the national legislation or cancel the relevant decision of the national court. Otherwise, such actions of the Court could be assessed as interference in the internal affairs of the state. This provision must also be taken into account by the persons who apply to the Court. In the motivated part of the decision on the case Carbonara and Ventura v. Italy of 30 May 2000 (No. 24638/94) the European Court emphasized that the application by the Cassation Court of Italy of the norm on the five-year period during which the former owners could not demand from the state the reimbursement of losses was an interference into the right of unobstructed use of the property incompatible with Article 1 of Protocol No. 1 of the Convention. However, in the resolution part the Court pointed exclusively to the fact of violation by the state of the relevant norm of the Convention. Taking into account the first experience of consideration of cases versus the Russian Federation, it is necessary to take measures aimed at enhancing the legal culture of Russian citizens in the sphere of the present-day international law. The lawyers, before they write a application to the European Court on Human Rights must familiarize themselves not only with the text of the Convention but also with the practice of application by the Court of the relevant Convention relevant, their interpretation. The importance of the decisions of the European Court is conditioned, in particular; also by the circumstance that during the examination of cases the Court for argumentation of its position often refers to the earlier decisions made by it and in this connection it is possible to speak about the precedence law of the European Court. For example, in the decision of 30 May 2000 on the case of AO v. Italy (No. 22534/93) the Court referred to the decisions of 28 September 1985 on the case of Spadea and Scalabrino v. Italy and of 28 July 1999 on the case of Immobiliare Saffi v. Italy (No. 22774/93).

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ON RECOGNITION OF THE JURISDICTION OF THE CIS ECONOMIC COURT BY CIS MEMBER STATES

G.V. Simonyan* The states-members of the Commonwealth of Independent States (hereinafter CIS) assume that integration within the CIS should be above all economic in character. Accordingly, creating an effective free trade area is thought to be the priority that should precede transition to the implementation of other tasks set down in the Treaty on the creation of the economic union of September 24, 1993.1 Many scholars and political leaders have noted the substantial role the European Communitys Court is playing in the creation and the activities of the European communities. Under the Treaty on the creation of the economic union, the main legal agency to handle disputes is the Economic Court of the CIS Countries (Article 31 of the Treaty). The previous article considered the problems facing the CIS Economic Court and the main areas in which its activities can be improved.2 The meeting of the Plenum which is the highest collegiate body of the CIS Economic Court on December 3, 1999 discussed and approved the guidelines for reforming the CIS Economic Court. The question of the participation of CIS states in the activities of the Economic Court attracted keen interest and was the subject of a stormy discussion not only among the members of the Plenum, but also the invited heads of diplomatic missions of CIS member states accredited in the Republic of Belarus and the permanent envoys at CIS institutions. The discussion revolved around the fact that the Republic of Azerbaijan had acceded to the Agreement on the Status of the CIS Economic Court of July 6, 1992 with reservations. The Republic of Azerbaijan, following its internal procedures, adopted the law On Accession to the Agreement on the Status of the Economic Court of the Commonwealth of Independent States with some reservations on October 8, 1996. It was duly sent to the depositary, the Executive Secretariat of the CIS. The depositary for its part notified the states parties to the Agreement on the status of the CIS Economic Court and invited them to express

* Grachia V. Simonyan Judge, Secretary of the CIS Economic Court Plenum, Yerevan, Armenia. 1 See Sodruzhestvo Newsletter, No. 4 (12), 1993, pp. 20-31. 2 See G.V. Simonyan Problems of the Competence of the CIS Economic Court in the Context of CIS Reform Vestnik Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii, No. 6, 1999, pp. 103-112.

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their attitude to the reservations made. The reservations had to do with the Statute on the Economic Court of the CIS. They were as follows: 1. The provision whereby disputes are considered by the CIS Economic Court upon application of the states concerned was rejected. That provision was to be dropped and the following provision was to be added: The Economic Court may not consider disputes if one of the parties refuses. Thus, the CIS Economic Court would only consider disputes with the consent of the parties. This reservation was similar to the one made by the Republic of Moldova when signing the Agreement on the Status of the CIS Economic Court; 2. The right of the CIS Economic Court to acknowledge interpretations was rejected; 3. The right of the collegiate body of the CIS Economic Court, the Plenum, to make the final decisions on complaints was rejected. Instead the following language was proposed: the states parties to the Agreement which disagree with the decision of the Economic Court Plenum, or if disputes are considered by the Economic Court, may appeal to the International Court. The latter reservation naturally raises some questions. If two states have agreed to submit a specific dispute to the CIS Economic Court what is the point of challenging its decision with an international court? Secondly, it is unclear what international court is meant. If it is the UN International Court, it will not take on the case and will not consider the dispute between the parties on the same subject. Thirdly, if one of the parties to the dispute is unhappy about the decision of the CIS Economic Court it may challenge it with an international court. Of the eight states signatories to the Agreement on the Status of the Economic Court the Republic of Tajikistan alone did not object to the accession of the Republic of Azerbaijan with such reservations. The Republic of Armenia deemed that such an accession of the Republic of Azerbaijan was impracticable and simultaneously declared that if these reservations were accepted by the CIS Economic Court Plenum, it would not object to accession. The Republic of Belarus, the Russian Federation and the Republic of Kazakhstan objected to the accession of the Republic of Azerbaijan to the Agreement on the Status of the CIS Economic Court with the above reservations. The Economic Court of the CIS in preparing the issue for consideration by the Plenum sent copies of the materials pertaining to the accession of the Republic of Azerbaijan to the Agreement on the Status of the CIS Economic Court to the Russian Federation Institute of the State and Law, to the Republic of Kazakhstan Institute of the State and Law and to the International Law Department of the Belarussian State University seeking their opinion. The following questions were put: 1. Under what conditions can accession be used as a form of expressing consent to consider the Agreement binding and do such conditions exist in this specific case?

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2. How do the objections of some states affect the possibility for the Republic of Azerbaijan to participate in the agreement with the states that have not objected to the reservation? 3. What legal regime should be established and between what participants in the agreement in view of the reservation made by the Republic of Azerbaijan? 4. What legal consequences arise from the violation of the deadlines by which the states should express their attitude to the reservations of the Republic of Azerbaijan according to the provisions of the Vienna Convention on the Law of Treaties of 1969 and the Procedural Rules of the Council of the Heads of State and the Council of the Heads of Government of the CIS? 5. Is the Republic of Azerbaijan a party to the Agreement on the Status? The opinions received were conflicting. At best, there were two similar answers to one and the same question although all of them proceeded from the provisions of the Vienna Convention on the Law of Treaties of 1969. The Plenum confined itself to discussing the issue. But it became clear to everyone that participation of states in various treaties (with or without reservations) is a problem within the CIS. It is a problem that is only partially met even by the Vienna Convention on the Law of Treaties of 1969. This prompted the search for an answer to the question: What CIS states have recognized the jurisdiction of the CIS Economic Court and how can they solve economic disputes at the Economic Court? To answer that question it is necessary above all to determine the legal framework for the creation of the CIS Economic Court, the forms and methods of recognition of its jurisdiction by the states with the main attention focused on the provisions of the Charter and other CIS acts pertaining to the Economic Court as well as the Vienna Convention on the Law of Treaties of 1969.3 The main legal documents regulating the creation and activities of the CIS Economic Court are the Agreement on Measures to Improve Settlements Between Economic Organizations of the CIS Countries of May 15, 1992, the Agreement on the Status of the CIS Economic Court of July 6, 1992 and the Charter of the CIS of January 22, 1993.4 Under Article 5 of the Agreement of May 15, 1992 the heads of state agreed to establish an Economic Court of the Commonwealth. The agreement was signed by the heads of the Republic of Azerbaijan, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Moldova, the Republic of Uzbekistan, the Russian Federation and Ukraine. The Republic of Azerbaijan, Ukraine and the Republic of Moldova signed the Agreement with a reservation that would exclude Article 5 of the Agreement pertaining to the creation of the Court.

3 See International Public Law. Collection of Documents, Vol. 1, BEK Publishing House, Moscow, 1996, pp. 67-87 (in Russian). 4 See Sodruzhestvo Newsletter, No. 5, 1992, pp. 11-12; No. 6, 1992, pp. 33-37; No. 1(9), 1993, pp. 17-29.

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Under the July 6, 1992 Agreement on the Status of the CIS Economic Court, the heads of the Republic of Uzbekistan, the Russian Federation, the Republic of Belarus, the Republic of Armenia, the Kyrgyz Republic, the Republic of Kazakhstan, the Republic of Tajikistan and the Republic of Moldova determined the status of the Economic Court (formed under Article 5 of the Agreement of May 15, 1992). The Agreement of July 6, 1992 approved the Statute on the CIS Economic Court, fixed the quotas of the number of judges from participating states and determined the contributions of participating states to financing the Court. The Republic of Moldova made a reservation regarding Section 3 of the Statute arguing that a dispute can be put before the Economic Court not on the basis of unilateral applications of the states to the court, but by mutual consent of the disputing states. The main legal document at the basis of the activities of the CIS is its Charter adopted on January 22, 1993 by the heads of state of the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan and the Republic of Uzbekistan. The Republic of Azerbaijan and Georgia acceded to the Charter in 1993 and the Republic of Moldova in 1994. Under Article 7 of the Charter the members of the CIS are recognized to be those states which have assumed the obligations under the Charter. According to the depositary, the Executive Committee of the CIS, the Charter has come into force for the above-mentioned ten states. Turkmenistan and Ukraine have not signed the Charter and therefore it has no legal force and effect for them. The Charter sets the goals and tasks of the CIS, which include peaceful resolution of disputes and conflicts between states (Article 3 of the Charter) and the list of CIS bodies (Article 6 of the Charter). The CIS Charter allows every CIS member state to declare that it is not interested in this or that issue (Article 32 of the Charter). Under Article 43 of the CIS Charter the states founders of the CIS reserve the right to make reservations and state dissenting opinions on Section 3 Collective Security and Military-Political Cooperation; Section 4 Preventing Conflicts and Dispute Resolution; Section 7 International Cooperation; on articles 28, 30-33 pertaining to the Coordinating Consultative Committee, the Council of Defence Ministers and the Main Command of the Joint Armed Forces, the Council of Commanders of Border Troops, the Economic Court and the Human Rights Commission. Article 32 of Section 6 of the CIS Charter deals with the role of the Economic Court of the CIS, the goals of its activities (ensuring compliance with the economic obligations within the framework of the CIS), the jurisdiction (resolution of economic disputes, the right to interpret agreements and other CIS acts on economic issues)5 and determines the location (the city of Minsk). On the 5 But under Section 5 of the Statute On the Economic Court of the CIS approved under the Agreement on the Status of the Economic Court of the CIS of July 6, 1992, the Court interprets theapplication of the provisions of the agreements and enactments of the CIS on all, and not only economic issues.

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other issues of the functioning of the Economic Court, the heads of state agreed thatthe Economic Court pursues its activities in accordance with the Agreement on the Status of the Economic Court and the Statute thereof approved by the Council of the Heads of State (Part 4, Article 32 of the Charter). At the signing of the CIS Charter and its ratification the states did not avail themselves of the possibilities offered by articles 23 and 43 of the Charter. Only the Republic of Moldova under Article 43 of the Charter made reservations with regard to Paragraph 4 of Article 4, Articles 11-15, 30, and 31 of the Charter pertaining to cooperation in defence policy and protection of external borders, collective security and military-political cooperation, the Council of Defence Ministers and the Main Command of the Joint Armed Forces and the Council of Commanders of Border Forces. In accordance with the provisions of the Vienna Convention on the Law of Treaties, the aforesaid warrants the conclusion to the effect that the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, the Republic of Uzbekistan, the Republic of Azerbaijan, Georgia and the Republic of Moldova are parties to an international treaty, the Charter of the CIS (subsection g, Section 1, Article 2 of the Convention) and have recognized the provisions of the CIS Charter as binding (Article 11 of the Convention). Proceeding from the principle pacta sunt servanda whereby every effective treaty must be observed by the parties to it (Article 26 of the Convention), the states parties to the CIS Charter have also agreed to and recognized the provisions of Article 32 of the Charter pertaining to the Economic Court of the CIS on four issues. 1. The states parties to the Charter of the CIS (ten states) have agreed and recognized that the Economic Court seeks to ensure compliance with the economic obligations within the CIS (Part 1, Article 32 of the Charter). 2. The states parties to the CIS Charter (ten states) have agreed and recognized the jurisdiction of the Economic Court (parts 2 and 3 of Article 32 of the Charter). The jurisdiction of the Economic Court of the CIS includes not only the resolution of the economic disputes that arise, but of other disputes under the jurisdiction of the Court under other agreements among the CIS member states. Simultaneously, the right was recognized of the Economic Court to interpret the provisions of the agreements and other CIS acts on economic issues. 3. The states parties to the Charter of the CIS (ten states) have agreed and recognized that the location of the Economic Court shall be in the city of Minsk (Part 5, Article 32 of the Charter). 4. The states parties to the Charter of the CIS (ten states) have agreed and recognized that the Economic Court pursues its activities in accordance with the Agreement on the Status of the Economic Court and the Statute thereof (Part 4, Article 32 of the Charter). This may imply not only the first three agreed positions of the states but all the other aspects of the Courts activities. These other aspects

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of the Courts activities may include the procedure of its formation and structure, the immunity of judges, financing, logistical and other organizational issues as well as some aspects of legal procedure to be regulated in accordance with the Agreement on the Status of the Economic Court and the Statute thereof approved by the Council of the Heads of State.6 An equally important issue is the basic principles of relations of the states parties to the Agreement of July 6, 1992 with each other; the states parties to the CIS Charter with each other; the states parties to the Charter and the Agreement of July 6, 1992 and the states which have not signed the agreement of July 6, 1992. The states parties to the CIS Charter successively concluded two founding documents on the issue of the Economic Court, namely, the Agreement on the Status of the Economic Court of the Community of July 6, 1992 and the Charter of the Community of January 22, 1992. The circle of participating states in the second document is broader (ten states) than in the first document (eight states). The Republic of Azerbaijan and Georgia, not having signed the initial document, the Agreement on the Status of the Economic Court of the CIS, later signed the CIS Charter without taking exception to Article 32 of the Charter. Consequently, the circle of states which previously recognized the Economic Court under the Agreement of July 6, 1992 was broadened in the relations with other CIS member states and only within the framework of Article 32 of the CIS Charter. Section 4 of Article 30 of the Vienna Convention on the Law of Treaties of 1969 which regulates the application of the successively signed treaties pertaining to the same issue provides that if not all the parties to a succeeding treaty are parties to the preceding treaty, the relations between states are regulated in the following way: 1) in the relations between the states parties to both treaties the preceding treaty only applies inasmuch as its provisions are compatible with the provisions of the succeeding treaty; 2) in the relations between a state which has signed only one treaty and a state which is a party to both treaties, the treaty signed by both states regulates their mutual rights and obligations. This provision of the Vienna Convention warrants the conclusion that in the relations between the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, the Republic of Uzbekistan and the Republic of Moldova, the provisions of the Agreement of July 6, 1992 are applied to the extent that they are compatible with the provisions of Article 32 of the CIS Charter of January 22, 1993. And in the relations between the Republic of Azerbaijan and Georgia, on the one hand, and the above-mentioned states, on the other, only the provisions of Article 32 of the CIS Charter regulate their mutual obligations and rights.

6 It has to be noted that the Agreement on the Status of the CIS Economic Court of July 6, 1992 is currently in force.

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The form and methods of the use of the Economic Court as the judiciary body of the CIS in resolving disputes and providing interpretation on the part of the states parties to the CIS Charter which have not signed and have acceded to the Agreement on the Status of the Economic Court of the CIS of July 6, 1992, call for some clarification. The reference in this case is to the Republic of Azerbaijan and Georgia which do not have their quota of judges in the Economic Court, do not finance it, and have not recognized unilateral petitions to the Court, the legal procedure and execution of the Courts rulings. In the first place one has to take into account the sovereign and voluntary position of the states non-parties to the Agreement on the Status of the Economic Court of the CIS. If a state is not a party to the Agreement on the Status of the Economic Court of the CIS, a dispute arising with a state party to the CIS Charter and the Agreement of July 6, 1992 is to be considered by the Economic Court in accordance with an agreed bilateral procedure. It may be a procedure agreed between the parties or an agreed recognition of the Procedure of the Economic Court. The Procedure of the Economic Court wisely contains a separate chapter (Chapter 5) titled Amicable Settlement of Disputes (sections 108-115 of the Procedure).7 That chapter of the Procedure while not regulating the entire settlement procedure in detail lays the legal guidelines for amicable resolution of disputes. The states parties to the CIS Charter can approve such a settlement procedure of the Economic Court at the level of governments or, with the consent of the governments, authorize the Plenum of the Economic Court to approve such a procedure. For example, the General Assembly of the United Nations has adopted a model conciliatory procedure of the UN for the resolution of disputes between states (Resolution 50/50 of December 11, 1995). This Procedure is applied to settle disputes among states if these states have expressly agreed to its full or partial application.8 Another possibility in this case is the settlement of the dispute at the Economic Court by an ad hoc group formed by the states parties to the dispute. Consequently, under Part 2 of Article 32 of the CIS Charter, the procedure of considering economic disputes at the Economic Court involving the Republic of Azerbaijan or Georgia should be agreed with the other party to the dispute, namely, the state which is a signatory to the CIS Charter. If it is necessary to have an interpretation of the provisions of the agreement on economic issues pertaining to Part 3 of Article 32 of the CIS Charter, the Republic of Azerbaijan and Georgia may unilaterally send queries to the Economic Court of the CIS which should provide the required interpretation in accordance with its procedure.

7 The latest edition of the Procedure of the Economic Court of the CIS was approved by the Plenum of the Economic Court of the CIS on July 10, 1997. 8 See Annual Report of the UN Secretary General on the work of the UN in 1996, New York, UN, 1996, pp. 54-55.

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In conclusion it should be stressed that the thoughts expressed in this article are personal opinions of the author and are submitted for discussion by scholars and international affairs specialists. At the end of the day in all regional international organizations, most notably in the European Communities, permanent and effective functioning is ensured by active and consistent participation of states in the activities of the organization.

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HOW THE STANDARDS OF INTERNATIONAL HUMANITARIAN LAW ARE APPLIED IN THE CIS

A.H. Abashidze* International humanitarian law (IHL) that is applied in cases of armed conflicts is currently embodied in four Geneva Conventions (August 12, 1949) that are aimed at protecting victims of war (hereinafter - Conventions) as well as two Additional Protocols that were adopted July 8, 1977 (hereinafter Protocols).

Being original members of the United Nations, Byelorussia and Ukraine in 1955 became Parties to the 1949 Conventions relative to the protection of victims of war. In 1992 Georgia, Kazakhstan, Kyrgyzstan and Turkmenistan ratified the 1949 Geneva Conventions, while Moldova, Tajikistan and Ukraine ratified the Conventions in 1993. As for the 1977 Protocols, then Byelorussia ratified them in 1990, Kazakhstan, Kyrgyzstan, Turkmenistan ratified them in 1992, Georgia, Moldova, Tajikistan, Uzbekistan ratified them in 1993. Russia did not have to ratify the Geneva Conventions and the Protocols since it was the legal successor of the USSR in respect to these international instruments. The Supreme Soviet of the USSR ratified the 1949 Geneva Conventions relative to the protection of victims of war on April 17, 1954 and deposited the ratification documents with the government of Switzerland on May 10, 1954.The USSR ratified the 1977 Protocols only on August 4, 1989. As can be seen from the above-mentioned, two CIS members Armenia and Azerbaijan, between whom there still are tensions because of Nagorny-Karabakh still have not ratified either the Geneva Conventions or the Protocols to them. In respect to the above-mentioned, there are two aspects that must be singled out. The first is related to a formally legal nature. It proceeds from the premise that on the basis of the August 23, 1978 Vienna Convention on the succession of states in respect to international treaties, all CIS members, including Armenia and Azerbaijan, are successors to all international agreements on IHL that have been ratified by the USSR, if, of course, any of these states have not directly declared otherwise. As far as we know, neither Armenia nor Azerbaijan has declared that they object to being Parties to the Geneva Conventions and the Protocols to them. Therefore, we consider that both Azerbaijan and Armenia continue to remain Parties to the aforesaid Geneva Conventions and the Protocols. More than that, these states are obliged to fulfil the norms of IHL, since the overwhelming majority of

* Aslan H. Abashidze PhD. (Law), Professor.

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them are conventional norms. Although this does not change the essence of the matter, it would be reasonable if the depository of these instruments, i.e., the Swiss government, asked these states about their intentions to continue remaining Parties to the Geneva Conventions and their Protocols. The second aspect concerns Russia directly as the successor of the USSR. If there are no questions concerning Russia being Party to the Geneva Conventions and their Protocols, there is a question, at least theoretically, related to those reservations and statements made by the USSR during the signing and ratification of the Geneva Conventions and their Protocols. While signing the Convention relative to ameliorating the plight of the wounded and the sick in regular armies, the government of the USSR made the following reservation in respect to Article 10: The USSR shall not regard as lawful a request from a state that holds the wounded, the sick and medical personnel to a neutral state or humanitarian organization to take upon itself the functions performed by the patron-state, the citizens of which are civilians under its protection. A similar reservation was made in respect to Article 11 of the Convention relative to the protection of civilian persons in times of war and in respect to Article 10 of the Convention relative to the treatment of prisoners of war. In respect to Articles 12 and 85 of the latter Convention, the following reservations were made: In respect to Article 12: The USSR shall not consider lawful to relieve from responsibility a state that transfers its captured prisoners of war to another state from observing the Convention relative to these prisoners of war while they are in the care of the state that has agreed to accept them. In respect to Article 85: The USSR shall not consider it mandatory for itself the extension of the patronage stemming from Article 85 of the Convention to prisoners of war that have been sentenced according to the laws of that country in which they are in captivity for having committed war crimes and crimes against mankind in accordance with the principles of the Nuremberg Trials since those sentenced for such crimes must abide by the regime established in the given country for those persons serving sentence. During the ratification of the 1977 Protocols, the Supreme Soviet of the USSR made the following statement: In accordance with Item 2 in Article 90 of Protocol I. the USSR recognizes ipso facto and without a special agreement in respect to any other High Contracting Party taking a similar commitment upon itself, the competence of the fact finding commission. In its reservation relative to Item 2 in Article 90 of Protocol I, did not recognize the unconditional jurisdiction of the international fact finding commission in general, but recognized it only in that instance, and in respect to those countries that recognize the absolute competence of that commission. Russia has not made any statements in respect to these reservations. Theoretically, this gives rise to a natural question: do these reservations made by the USSR remain in force for Russia? The doctrine and practice of international

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law do not give a definite answer to this question. In connection with this, it would be worthwhile for the government of Switzerland, as the depository, to address a special request to the government of Russia as to its attitude towards these reservations. The contracting norms of IHL in the above-mentioned Conventions are part of the national system of law and have the force of primacy over the national legislation in many CIS members, and in the event of their contradiction, the advantage is given to the norms of IHL. A special statute on this can be found in the constitutions of many CIS members (for example, see Item 4 in Article 15 of the Constitution of the Russian Federation). On the whole, proceeding from the existing norms of IHL, the CIS members are obliged to take the necessary steps to fulfil all the demands of IHL. In connection with this, it would be worthwhile remembering that the 1949 Geneva Conventions and their 1977 Protocols, in particular, envisage specific means for fulfilling the norms of IHL, their being the development of the international-legal principle, according to which the Parties to a treaty (convention) are obliged to conscientiously fulfil the existing agreements. More than that, the majority of IHL documents directly contain the principle regarding the obligatory fulfilment of international commitments in this sphere and ensuring their respect under any circumstances. Nonetheless, it should be noted that the currently existing norms of international humanitarian law that clearly define obligations concerning fulfilment of IHL do not contain efficient control mechanisms for evaluating the degree of fulfilment of the IHL obligations by the states. This being the case, we consider it very important that the International Committee of the Red Cross (ICRC) has been insisting and continues to insist upon an exchange of information via the depositary both in respect to the 1949 Geneva Conventions and to the two 1997 Protocols related to them. Such an approach on the part of the ICRC is conventionally founded. In particular, the states that are party to the Geneva Conventions and Protocols to them have pledged to provide each other via the depositary, and in time of hostilities, via a Protecting Power, the texts of official translations of the Conventions and Protocols, as well as the laws and decisions that could be adopted for ensuring application of these documents. Although it is considered that the majority of IHL norms are self-executed norms, i.e., those that are directly applied in the states that are party to the Conventions, nonetheless, it is becoming increasingly evident that these states must adopt additional measures of a legislative and practical nature that would guarantee their application. In particular, such an approach was reflected in the Resolution of the International Conference of the Red Cross (Geneva, 1986) that reaffirms that the application of the August 12, 1949 Geneva Conventions and their July 8, 1977 Protocols depends to a greater extent on the adoption of each of the sides of corresponding national legislature.

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If the CIS members that are party to the Geneva Conventions and their Protocols, with the exception of the two states mentioned above, have no misunderstanding as to precisely what IHL norms are applicable in the territories of these states, then on the question concerning what measures these states are obliged to take in order to fulfil the IHL norms, not everything is clear on this matter. Such a situation is explained by both objective and subjective reasons. To the former, one may, in particular, regard the circumstance that in order to determine the measures that each state must take in order to fulfil IHL, one must by all means take into account its legal system and other peculiarities. The given circumstance is less important in respect to the CIS members because their recent common past predetermined their affiliation to a single legal system, although some of them are gradually introducing attributes of another legal system. For example, this concerns those CIS members in which Islam is the foremost religion. On the whole, thanks to the efforts of the ICRC, there has appeared the following system for controlling fulfilment of IHL norms by the states: The State party to the Geneva Conventions and their Protocols have pledged not only to inform one another but also the ICRC about the measures they have taken to apply IHL; The ICRC collects and evaluates the measures undertaken by the Parties to fulfil IHL obligations. In view of the importance of IHL norms for any state and each person, in our opinion, the time has come to endow the ICRC with the right not only to evaluate the measures undertaken by the Parties to fulfil IHL obligations, but also the right to propose to these states to fulfil, without delay, their IHL obligations if, in the opinion of the ICRC, this or that state is not sufficiently fulfilling these obligations. The next aspect that should be taken into consideration concerns the interpretation by the CIS members of the notions international armed conflict and non-international armed conflict. The matter is that if, for example, the 1977 Additional Protocols clearly delineate questions related to the protection of victims of war in conditions of an international armed conflict and in conditions of a non-international armed conflict, and moreover, Article 3 in all four 1949 Geneva Conventions ensures a minimum of rules on the amelioration of the condition of victims of war in conditions of non-international armed conflicts, then in spite of that, the question concerning the nature of an armed conflict in the territories of the CIS members quite often acquires a political nature. Touching upon the recent history of that question, it is noteworthy that the government of the USSR recognized only an international armed conflict. This is confirmed by the Instructions on the application of the norms of International Humanitarian Law by the Armed Forces of the USSR that was adopted in execution of he USSR Defence Ministrys Order (No. 75) issued February 16, 1990. The given Instructions are fully meant for a situation in an international armed conflict. Such a state of affairs has its own explanation since the USSR did not even theoretically allow for

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the possibility of the emergence of any kind of non-international armed conflicts on its territory. In spite of the fact that the Soviet government recognized international armed conflicts, it was only in the final years of its existence that it acknowledged that the USSR was a Party to the international armed conflict in Afghanistan. In the new conditions of the independence of the CIS members, there is a tendency that these countries recognize both international armed conflicts as well as non-international armed conflicts. But even here, not all questions of this nature lend themselves to a logical explanation. For example, Georgias leaders view the armed conflict in South Ossetia as a non-international armed conflict. But at the same time, Georgias leaders, at the initial stage of the armed conflict in Abkhazia, on the contrary, tried in every way it could to depict it as an international armed conflict, accusing Russia of complicity. On its part, Russia views the armed conflicts in South Ossetia, Abkhazia, Trans-Dniestria and Tajikistan as non-international armed conflicts. All the other CIS members view the armed conflicts in South Ossetia, Trans-Dniestria and Tajikistan as non-international armed conflicts. The situation in Nagorny Karabakh is somewhat different. For Azerbaijan, it is an international armed conflict, while Armenia, at its initial stage, underscored the non-international nature of that armed conflict. However, as of late, Armenia does not conceal its interest in the Nagorny Karabakh armed conflict, and this gives grounds to maintain that for Armenia as well that armed conflict is international in nature. Therefore, all the CIS members acknowledge two types of armed conflicts: international armed conflict and non-international armed conflict. The contradiction here lies only in the classification of these armed conflicts, in the definition of which the decisive influence is exerted not by legal norms, but first and foremost, the political considerations of the leadership of those countries. Moreover, we are unaware of a single fact that any CIS member denied the need to observe the norms of IHL in the respective armed conflicts, knowing that non-acknowledgement of the state of war releases the Parties to the armed conflict from fulfillment of the norms of IHL. Neither are we aware of any facts proving that any CIS member gave preference to applying IHL norms in conditions of international armed conflicts or non-international armed conflicts. It is possible to make out a certain evolution in the views of the Russian leadership in respect to the nature of the Chechen armed conflict. At the beginning, the Federal authorities of the Russian Federation (RF) regarded the conflict in Chechnya as a revolt by terrorists. Then, under pressure of the world public, the Federal authorities recognized the armed conflict as a non- international armed conflict. After several agreements were signed with Chechnya on settling the conflict, certain politicians and scholars maintain that the RF is building its relations with Chechnya on the basis of the principles of international law, and consequently, their mutual relations acquire a special nature.

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Touching upon more specific aspects and concepts of IHL in the practice of the CIS members, the following theses are noteworthy: The CIS members have still not yet adopted a special law on fulfilment of IHL obligations. If one takes into account that in the present-day army in those states, the commanders are, in the main, former officers of the Soviet Army, then on the whole, the armies in these states apply the norms of IHL according to the old instructions Instructions on the application of IHL norms by the Armed Forces of the USSR adopted in 1990. What concerns the given Instructions, they are totally applicable to international armed conflicts and do not contain any instructions as regards non-international armed conflicts. While in the present-day conditions, vice versa, non-international armed conflicts are relevant for Russia, Georgia, Azerbaijan, Moldova and Tajikistan. Neither official inquiries nor repeatedly asked questions at various conferences organized by official state structures within the CIS have been able to clarify our question as to whether the armies in the CIS members have instructions relative to the application of IHL norms. It is our firm conviction that such documents simply do not exist. This being the case, this implies that the main document in this sphere in the armies of the CIS members remains the Instructions elaborated by the USSR Defence Ministry back in 1990 a document that is fully applicable only in conditions of international armed conflicts. With the exception of Belarus, all other CIS members that are Parties to the Geneva Conventions and their Additional Protocols do not have a special government body or agency that is responsible for controlling fulfilment of IHL norms by the given states. Not a single CIS has a normative definition for the concept civilians. However, given the definition of combatants in accordance with the Geneva Conventions, it is possible to deduce the definition for civilians, i.e., those who do not come under the definition of combatants. What concerns prisoners of war, the practice of the CIS members has introduced strange new elements. For example, although hostilities in Chechnya have ceased long ago, the sides are unable to resolve the problem of exchanging prisoners of war to the end. In the given case, the prisoners of war have been turned into a means of obtaining money (ransom). More than that, civilians that were kidnapped outside Chechnya and are being kept in its territory are also classified in the category of war prisoners, which is not really the case. The situation in Abkhazia in this respect is no better. The meeting of representatives from Tbilisi and Sukhumi in Istanbul on June 10, 1999 resulted in the signing of a treaty on the exchange of prisoners of war, although that war ended even five years ago. Not a single CIS member has exchanged with each other information on the measures that they have taken to fulfil IHL. Even if work in that direction is started,

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it will be difficult to do in practice because the CIS members, just like any other states will hardly be able to determine how many of their IHL obligations, and precisely which ones, have been fulfilled. Generally acknowledged criteria for determining the degree to which states have fulfilled their IHL obligations have still not been defined. The CIS members do have statutes (especially in their Criminal Codes) on criminal punishment for international crimes, including war crimes. However, these countries have not worked out in detail questions related to criminal responsibility and criminal measures of punishment in cases of grave breaches of the Conventions and Protocol I. Not a single CIS member has thus far adopted laws for the protection of the distinctive emblems of the Red Cross and Red Crescent, as well as the names Red Cross and Red Crescent. It is our opinion that the ICRC should offer the CIS members the worked out instructions that are applicable to medical personnel, medical formations and medical transport. The ICRC has collected very valuable experience in this respect. Not a single CIS member has fulfilled the ICRC recommendations concerning the need to establish National Information Bureaus in these states even in peacetime. In Russia, this function, in part, is performed by the public organization Soldiers Mothers. Although at the beginning of the 1950s it was possible to observe some activity concerning the publication of the texts of the Geneva Conventions and the Additional Protocols in the CIS members, the given work has slowed down, while access to these documents is still limited. All this reduces the efficacy of the work in disseminating knowledge about IHL. The Parties to conflicts in the territories of the CIS members are grossly violating Article 33 in Protocol I. The matter is that they have classified as secret information concerning missing persons. It is virtually impossible to obtain at least some approximate statistics in this respect. The problem of defining criminal responsibility and punishment of persons for violating IHL norms remains a timely one in the CIS members. In the majority of cases, this problem acquires a political lining. The scenario usually develops in the following manner: at the beginning, the other Party is accused of terrorism, and then it is recognized as a Party to the conflict, and official negotiations are conducted with it. Such extreme approaches lead to the point where many who are really guilty of having committed crimes against the civilian population remain unpunished. A recently new manifestation that deserves special attention is the fact that the top leadership of Russia has openly announced the possibility of initiating the use of nuclear weapons in the event of a real threat to Russia. Such an approach will radically change Russias military doctrine.

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THE LEGAL FRAMEWORK OF PEACE OPERATIONS IN THE COMMONWEALTH OF INDEPENDENT STATES

B.R. Tuzmukhamedov* The Commonwealth of Independent States plays a specific role in the preparation and holding of regional operations to maintain peace within the limits of the former USSR. Having declared its intention to carry out such operations, the CIS in the majority of cases simply provides its flag to the Russian military contingents, which make up that which is formally referred to as collective forces. In certain cases the CIS organs turn out to be totally not involved in the operations, which are carried out on the basis of the agreement of Russia with the interested parties. However, the availability of the CIS mandate and participation in the operations, be it even symbolic, the servicemen from other states participants of the Commonwealth, imparts them at least the semblance of international and not unilateral Russian actions. During the time of its existence the Commonwealth worked out a number of documents, unequal in their legal force and technology of execution, which determine the general and special rules of preparation and implementation of operations to maintain peace. The proposed article is also devoted to their critical analysis. Due to the fact that the source of powers for holding such operations by the Commonwealth is Chapter VIII of the UN Charter, the author deemed it necessary to precede the study of the normative foundations of the operations by explaining the place of the CIS as a regional organ. The analysis of the documents alone was made without at least a cursory look at the current operations and their legal foundations. Therefore, this material should be desirably considered in combination with the article by Lieutenant General of Justice G. A. Zolotukhin published in the same issue of the magazine under the title The Legal Sources of Participation of the Armed Forces of the Russian Federation in the Operations to Maintain Peace in the Commonwealth of Independent States.

* Bakhtiyar R. Tuzmukhamedov LLD, Associate Professor of International Law of the Diplomatic Academy of the Foreign Ministry of the Russian Federation.

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The author wanted to express gratitude to the Justice Counsellor of Third Class O. A. Kudryashova for her assistance in the preparation of the manuscript for the press. 1. The Commonwealth of Independent States an International Organization The Commonwealth of Independent States (CIS), uniting presently twelve out of fifteen republics, which made up the USSR previously, in the constituent documents is not referred to as an international organization. The founders of the Commonwealth were striving to underline the fact that it is not a state and does not possess supranational powers,1 however, abstained from defining what it is after all.2 Meanwhile, the CIS possesses the necessary formal signs of an international intergovernmental organization, including the constituent documents, which stipulate the goals and principles, the system of organs, the regulated membership. The Commonwealth has been established by international treaties. The initial document was the Agreement on the creation of the CIS of 8 December 1991,3 which stated the cessation of the existence of the USSR and proposing a certain, rather vague alternative at the time to the centralized state. Soon the Agreement was supplemented by a Protocol of 21 December 19914 and on the same day the Alma-Ata Declaration was adopted, which for the first time had the formula, in

1 The Charter of the Commonwealth of Independent States, Article 1 The Informational Herald of the Council of the Heads of State and the Council of the Heads of Government of the CIS Sodruzhestvo (herein Sodruzhestvo), 1993, No. 1, p. 18. 2 The authors of the Moscow Journal of International Law proposed various approaches to the definition of legal nature of the CIS. L.V. Grechko and G.I. Shinkaretskaya presented their views in greater detail, they came to somewhat paradoxical conclusion that the Commonwealth of Independent States already at the moment of its formation possessed all the signs of an international organization and at the same time the Commonwealth from its very outset was namely a confederation. L. V. Grechko, G.I. Shinkaretskaya. The notion of confederation and the CIS. the Moscow Journal of International Law 1994 No. 2, p. 72. This author can agree with this conclusion only in the event, if the quoted fragment is a statement of evolution (or degradation?) of the USSR from the federation through a semblance of confederation to an international organization, besides the latter at the moment of the termination of work on the quoted publication was in the stage of formation. Closer to the truth is, in our view, I. V. Fisenko, in whose opinion the CIS represents today a loose association with an indefinite range of participating states, which changes depending on the sphere of activity, the degree of integration of its members again is rather diverse..., but on the whole within the framework of the Commonwealth as such is not high. Fisenko I. V. The mechanisms of settlement of disputes between participating states of the CIS. the Moscow Journal of International Law 1997 No. 2, p. 128. The same author believes the CIS to be an integrated association, which is recognized by certain researchers as having the nature of a confederation. Ibidem, p. 125. V. N. Shumsky, using the term integrated association, defines the CIS also as a young regional association, by the way, just as I.V. Fisenko, without giving the term an enlarged definition. Shumsky V. N. The Institutes of the Commonwealth of Independent States: Creation, Activity and Directions of Further Improvement. The Moscow Journal of International Law 1998 No. 4, p. 61. 3 Sodruzhestvo, 1992, No. 1, pp. 6-8. 4 Ibid, p. 11.

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accordance with which the Commonwealth is not a state or a supra-state formation.5 And, finally, on 22 January 1993 the Charter of the Commonwealth was adopted, which developed, specified and corrected the earlier documents.6 The Commonwealth declared its principal objectives, principles, directions of activity and the areas of cooperation. Their analysis goes beyond the framework of this publication, however it should be said that they are extremely broad. From the functional viewpoint the Commonwealth claims to play the role of a universal organization, stating its readiness to deal with political, economic, military, ecological, humanitarian, cultural and other problems. The Commonwealth, whose initial documents mention only certain general coordinating institutes,7 with the passage time formed a developed and complicated system of organs. The highest among them is the Council of the Heads of State. Other organs include the Council of Heads of Government, the Council of Foreign Ministers, the Economic Court, the Commission on Human Rights, the Inter-Parliamentary Assembly and a number of other organs. For the purposes of this publication it is necessary to mention the Council of Defence Ministers and the Council of Commanders-in-Chief of Border Troops, which, unlike other enumerated institutes of the Commonwealth, are the organs of the Council of the Heads of State. Besides, a separate structure of organs was established by the Treaty on Collective Security signed in 1992.8 The Commonwealth has the institute of membership. It has its own peculiarity. In lieu of a simple and clear notion of member-states or participating states the Charter introduces one more term the founding states.9 If one strictly adheres

5 The Alma-Ata Declaration, ibid, p. 15. 6 It is written in the decision of the Economic Court of the CIS No. 02/94 od 31 March 1994 that the Agreement of 8 December 1991 and the Protocol to it of 21 December 1991 are initial in regard to the Charter of the Commonwealth of Independent States, because they are constituent documents of the Commonwealth, on the basis of which, the Charter was approved. (Sodruzhestvo 194, No. 1, p. 162) The author is not ready to share this position. First of all, the list given in the decision of the Economic Court should be supplemented by the Alma-Ata Declaration announcing the main goals and principles of the CIS and possessing the signs of legally mandatory document. Furthermore, a full-fledged constituent document of an international association usually not only declares the main goals, principles of organization and activity, but also establishes the internal structure, powers of its organs, procedure, terms of membership. The Agreement and Protocol to it do not resolve these tasks. If the term primacy is understood as a certain priority of the norms contained in the Agreement and Protocol, and also the Declaration, then due to different understanding between these documents, on the one hand, and the CIS Charter on the other, the use of these sources will be impeded. The reference proposed by us to the group of the constituent documents of all four acts makes it possible to interpret and use them in their totality and taking account of their evolution and represents as legally correct, practical purposeful. In accordance with our approach, the first three acts in their totality make up the constituent treaty, the fourth is the charter of an international association. 7 The Agreement on the Creation of the CIS, Article 7. Sodruzhestvo, 1992, No. 1, p. 7. 8 Sodruzhestvo, 1992, No. 5, pp. 9-11. 9 The instrumental notions applicable to membership (or participation?) in the CIS are rather vast. In the Agreement on the Creation of the CIS the terms were used the High Contracting Parties, the Parties, the member-states of the Commonwealth, the participants in the Agreement, in

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to the letter of the Charter, then the possession of the status of a founding state does not mean an automatic acquisition of membership at the CIS, because the provision of the status a member-state calls from the founding state the fulfilment of a number of conditions. For example, the founding states take part in the work of the Commonwealth and its organs Turkmenistan and Ukraine, are not parties of the Charter. Let us consider this to be a legal curiosity but the term of participating states was established in the practice of the Commonwealth.10 Finally, the Commonwealth has a budget, to be more precise, budgets of its organs, headquarters, the permanently acting executive organ the Coordinating and Consultative Committee and the International Secretariat. 2. The Commonwealth of Independent States Regional Arrangement in the Meaning of Chapter VIII of the UN Charter Chapter VIII of the UN Charter entitled Regional Arrangements, determines the most general principles of interaction between the United Nations and the regional arrangements or agencies in maintaining international peace and security. Here the Charter itself does not contain a list of characteristic features of the region. Mr. Butros Butros-Ghali, the former United Nations Secretary General, has said that cooperation between the United Nations and regional organizations must constantly adapt to an ever-changing world situation. The Charter itself anticipated this need for flexibility by not giving a precise definition of regional arrangements and organizations, thus enabling diverse organizations and structures to contribute,

the Protocol to the Agreement only the High Contracting Parties in the Alma-Ata Declaration the participants in the Commonwealth and the participating states of the Commonwealth, and finally, in the Charter of the CIS the founding states of the Commonwealth, the member-states of the Commonwealth, and also the associated members. The analysis of these unusual terminological searches does not enter the tasks of this article, see an authoritative comment on this score in: Fisenko V.N., Fisenko I.V. The Charter of Cooperation in the Framework of the Commonwealth of Independent States. The Moscow Journal of International Law, 1993, No. 3, pp. 47-51. 10 In both its decisions made on 31 March 1994 the Economic Court of the CIS proposed the criteria which must correspond to the member-states and the participating states of the Commonwealth (see Decision No. 01/94 On interpretation on the issue of application of the provisions of agreements and other acts of the Commonwealth and Decision No. 02/94 On interpretation on the issue of application of the provisions of agreements and other acts of the Commonwealth Sodruzhestvo, 1994, No. 1, pp. 159-164). Taking into account Moldova which duly completed the procedures already after making these decisions, the participating states are all twelve states, and the member- states ten states, minus Turkmenistan and Ukraine. By the way, it should be agreed with I. V. Fisenko, who writes that in principle, the category of membership has no practical importance. Fisenko I. V. The Practice of the Economic Court of the Commonwealth of Independent States. The Moscow Journal of International Law, 1997, No. 3, p. 31. At the same time, I should share the bewilderment of I. V. Fisenko regarding the fact that the Economic Court of the CIS deals not only with economic issues: The difference between economic and political relations exists. Even the financial expression of this or that political dispute... is not the reason of its qualification to be economic ibid, pp. 31-32.

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together with the United Nations, to the maintenance of peace and security.11 Other applicable UN documents do not define concrete characteristics of a regional body. See, for instance, «The Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security»,12 adopted by the 49th Session of the General Assembly. The constituent documents of the CIS the Commonwealth is not referred to as a regional agency, and these documents themselves are not called regional arrangements. However, the relative compactness of location of the Commonwealth within the limits of the northern part of the Eurasian continent, the historical community of the participating states, the continuing economic ties between them and a number of other circumstances make it possible to consider the CIS as a regional agency in the meaning of Chapter VIII of the UN Charter. As time went by the Commonwealth realized itself as a regional organization, and first of all as an institute to ensure international peace and security in the region. At first, in the statement by the Council of the Heads of State of the Commonwealth on carrying out the operation to maintain peace in the zone of the Georgian and Abkhaz conflict adopted on 15 April 199413 the forthcoming operation was described as an operation suitable to Chapter VIII of the UN Charter. Later on, on 19 January 1996 the Council of the Heads of State adopted a document entitled The Concept for the Prevention and Settlement of Conflicts on the Territory of the Participating States of the Commonwealth of Independent States.14 The excerpts from this document do not need any verbose comments. In particular, the Concept says the following: The Commonwealth of Independent States as a regional organization takes the necessary steps in view of settling conflicts on the territory of the participating states of the Commonwealth of Independent States in conformity with Chapter VIII of the UN Charter. And it follows further: In its activity to settle conflicts carried out in conformity with Chapter VIII of the UN Charter, the Commonwealth of Independent States closely interacts with other international organizations, first of all with the United Nations and the Organization on Security and Cooperation in Europe15 (italicised by the author B. T.). In the report of the UN Secretary General published in the year of the 50th anniversary of the jubilee of the Organization, the CIS is mentioned namely among the regional institutes, along with such as the Organization for Security and Cooperation in Europe, the Organization of American States and others.16 The Resolution of the UN General Assembly No. 48/237 the Commonwealth

11 Boutros Boutros-Ghali. Confronting New Challenges. Annual Report on the Work of the Organization. United Nations, 1995, p. 337. 12 UN Doc. A/Res/49/57, 17 February 1995. 13 Sodruzhestvo, 1994 No. 1, pp. 152-153. 14 Sodruzhestvo, 1996, No. 1. pp. 28-34. 15 Ibid, pp. 30, 32. 16 Boutros Boutros-Ghali, op. cit., p. 338.

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of Independent States was granted the status of observer at the General Assembly.17 For the purposes of this article it is of special importance to mention the fact that the role of the CIS organs in the settlement of conflicts on the territory of the former Soviet Union was repeatedly noted in its resolutions by the UN Security Council.18 They also emphasized the importance of interaction between the CIS organs and UN missions, in particular, in Abkhazia and in Tajikistan. 3. Operations to Maintain Peace in the Commonwealth of Independent States Legal Sources The constituent documents of the Commonwealth preceding the CIS Charter, did not regulate the operations to maintain peace. However, during the period which elapsed between the signing of the Agreement on the creation of the CIS and the accompanying Protocol and Declaration, and the adoption of the Charter of the Commonwealth, the need became obvious in special documents regulating various aspects of preparation and implementation of operations. The Charter itself already operated with such notions as collective forces to maintain peace and military observers, having defined their role as one of the instruments of maintaining security in the Commonwealth.19 The sources, which are applicable in one way or another to the regulation of operations to maintain peace in the CIS, I would suggest to divide them in four groups. It would be possible to refer to the first group the provisions of the CIS Charter and with certain reservations the Treaty on collective security. Beside these hard sources the same group can also include a document not possessing legal force of an international treaty. This is the Concept for the prevention and settlement of conflicts on the territory of the participating states of the Commonwealth of Independent States adopted by the Council of the Heads of State on 19 January 1996. The second group is made up of the CIS acts regulating the issues of formation and activity of forces participating in operations. The third group includes special documents determining the mandates of separate operations carried out on the territory of the Commonwealth. Finally, the fourth group consists of national acts, such as those which regulate the participation in operations in general and those which constitute the national mandate for a concrete operation and determining other conditions of participation in it of the national contingent. In this article attention will be devoted to the first and second groups, and the third and fourth groups will be examined in detail in the article by G. A. Zolotukhin published below.

17 UN Doc. A/Res/48/237, 24 March 1994. 18 See, for example, UN Doc.: S/Res/1225 (1999), 28 January 1999, S/Res/1240 (1999), 15 May 1999. 19 See the CIS Charter, Article 11. Sodruzhestvo, 1993 No. 1, p. 21.

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As one of the objectives of the Commonwealth the Charter proclaims peaceful settlement of disputes and conflicts between the participating states (Article 2). In a special chapter entitled Prevention of Conflicts and Settlement of Disputes special attention is devoted to conflicts on an inter-ethnic and inter-confessional basis (Article 16). Between these provisions of the Charter it is possible to see the contradiction: Article 2 certainly speaks of the inter-state conflicts, while Article 16 is fully applicable to conflicts taking place inside the state. Besides, the above Article 11 speaks of maintaining security inside the Commonwealth, and if desired the connecting word inside can be broadly interpreted as admitting the implementation of relevant measures within the limits of individual states. It should be reminded that that Charter calls military observers and collective forces as an instrument of maintaining security in the Commonwealth. It was already pointed out that Turkmenistan and Ukraine are not parties in the Charter of the Commonwealth. This, by the way, does not impede them to participate in the work of Charter organs, and also in a number of treaties and other understandings concluded in compliance with the Charter and other agreements connected with it. The Concept of prevention and settlement of conflicts on the territory of the participating states of the Commonwealth of Independent States does not possess legal power, although many provisions of this document are distinguished by a directive style. The operations to maintain peace are referred by the Concept to the means of settlement of armed conflicts. However, it follows clearly from the text that the operations are considered as an applicable means in a broader range of situations. Thus, the chapter entitled Prevention of Conflicts envisages a preventive (preemptive) deployment of police (militia), civil and military personnel in the participating states of the Commonwealth in the region of possible confrontation in view of prevention of escalation of tensions, outgrowth of differences and crises into an armed conflict.20 The next chapter The Settlement of Armed Conflicts, calls operations to maintain peace the main means of such settlement. The chapter contains the definition of operations to maintain peace, the main principles of their preparation and implementation. Finally, at this stage of post-conflict structure of peace it is also envisaged to use military observers and separate units of collective forces to maintain peace. Certain provisions of the Concept can cause questions, others even surprise. The latter ones should include an impersonal sentence in the introductory part of the document: While carrying out operations aimed at the prevention and settlement of conflict on the territory of the participating states of the Commonwealth of Independent States, as a rule, one should proceed from the availability of the mandate of the UN Security Council for this.21 Beside the

20 Sodruzhestvo, 1996, No. 1, p. 30. 21 Ibid, pp. 28-29.

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strange style of this phrase attention should be paid to the following. Under the mandate of the UN Security Council it is obvious that we should understand that in Part 1 of Article 53 of the UN Charter they are called as powers from the Security Council. Without such powers, as it follows from the UN Charter, the regional organs have no right to undertake coercive actions. However, the Concept does not concern such actions, by confining them with an absolutely correct reference: Coercive actions in settling conflicts (coercion to peace) are allowed only given the availability of the relevant powers from the UN Security Council in accordance with the UN Charter.22 So, the phrase about a certain mandate of the UN Security Council is thought to be improper. While carrying out measures envisaged by the Concept, the Commonwealth can confine itself to informing the UN Security Council which is envisaged by Article 54 of the UN Charter. The same group of sources, true with a certain degree of condition, possibly includes the provisions of the Treaty on Collective Security signed on 15 May 1992 in Tashkent. The system of collective security created by the Treaty is directed in the first place to the prevention of external threats to the security of the states which signed it. Here it should be noted that the Treaty was adopted in the course of the meeting of the heads of state of the Commonwealth, it has been placed beyond the framework of the CIS. It has created its own organizational structure, although certain organs are used together with the Commonwealth and the system of collective security. Unlike the UN Charter, the adherence to which of new states is conditioned by the agreement of all participants, the Treaty on Collective Security is open for adherence of all interested states sharing its goals and principles. If the CIS proper can be considered regional organization in the sense of Chapter VIII of the UN Charter, then the system created by the Treaty on Collective Security, like NATO, announces itself a means of implementing Article 51 of the UN Charter.23 It is necessary to pay attention to a certain likeness of Article 4 of the Treaty on Collective Security and Article 5 of the North Atlantic Treaty.24

22 Ibid, p. 31. 23 Certain authors refer to the shortcomings of the Agreement that fact that it does not reflect the provision to the effect that it is a variety of a regional agreement to maintain international peace and security in accordance with articles 52-54 of the UN Charter. Ivashov L.G., Bulygin A.N. Aspects of Military Cooperation Within the Framework of the Commonwealth of Independent States. The Moscow Journal of International Law 1998 No. 3, p. 19. 24 Article 5 of the North Atlantic Treaty reads: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence, recognized by Article 51 of the Charter of the United Nations, shall assist the Party or Parties, so attacked by taking forthwith, individually and in concert such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. Quoted from: The existing international law in three volumes. Volume 2. M., 1997, pp. 294-295. The text of Article 4 of the Treaty on Collective Security is as follows: If one of the participating

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However, despite the primarily external nature of the collective security system, the Treaty obliges the participants to settle by peaceful means the differences arising between them. The supreme organ of the participating states of the Treaty is the Council for Collective Security. By the agreement signed in compliance with the Treaty, the Council has been authorized, among other things, to establish and take measures, which it deems necessary to maintain or restore peace and security. The messages about such measures should be immediately sent to the UN Security Council.25 As it seems, such a power can be carried out both within the framework of Article 51 and within the framework of Part 3 of Article 54 of the UN Charter. In other words, in the system of collective security created by the Tashkent Treaty of 1992, it is possible to find the normative explanation for carrying out operations aimed at maintaining peace. The additional arguments in favour of the fact that operations to maintain peace are one of the directions of activity within the framework of the Treaty on Collective Security are contained in the subsequent documents. This follows clearly from the concept of collective security of the participating states of the Treaty on Collective Security approved by the Council for Collective Security on 10 February 1995. In the Concept the carrying out of operations to maintain peace is referred to one of the priority directions in the joint activity to prevent the military threat.26 The carrying out of such operations is one of the goals to create the so-called forces and means of the system of collective security. The decisions of the UN Security Council, the Organization on Security and Cooperation in Europe and international commitments are called the legal foundations for their implementation. The international commitments is a notion with an insufficiently concrete content. It can be interpreted as including the applicable acts of the Commonwealth. By the way, the effectiveness of the Treaty on Collective Security and the structures created by it is considerably diminished by the fact that from the moment of coming into force of the Treaty it consisted of only three out of twelve participating states of the CIS this is Moldova, Turkmenistan and Ukraine. When in April of 1999 the first five-year period of validity of the Treaty expired, Azerbaijan, Georgia and Uzbekistan abstained from signing the protocol on its prolongation. Thus, at present it is possible to speak about the real participation in

states is subject to an act of aggression on the part of any state or a group of states, then this will be considered as an aggression against all the participating states of the present Agreement. In the event of committing an act of aggression against any of the participating states all the remaining participating states will provide it with a necessary assistance, including military assistance, and also render support with the means available to them in the order of exercising the right to collective defence in conformity with Article 51 of the UN Charter. The Security Council of the United Nations Organization will be immediately notified about the measures taken on the basis of the present article by the participating states. While implementing these measures the participating states shall abide by the relevant provisions of the UN Charter. Sodruzhestvo, 1992, No. 5, pp. 9-10. 25 Agreement on the Approval of the Provision on the Council of Collective Security of 6 July 1992. Sodruzhestvo, 1992 No. 6, p. 63. 26 Sodruzhestvo, 1995 No. 1, p. 48.

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the Treaty on Collective Security of only Armenia, Belarus, Kazakhstan, Kyrghyzstan, Russia and Tajikistan. Finishing the review of this group of sources I would like to draw your attention to two interesting circumstances. Firstly, within the limits of the territory of the CIS in parallel there are two regional organs or agreements. This is a structure created by the charter documents of the Commonwealth and a system of collective security uniting six out of twelve CIS participants. Both of them, in principle, answer the requirements of Chapter VIII of the UN Charter, and the Commonwealth received a formal recognition as a regional organization to maintain international peace and security. Secondly, speaking about the new formation on the territory of the CIS is the structure which is designated by the abbreviation GUUAM by the first letters of the names of the states which go to form it. This is Georgia, Ukraine, Uzbekistan, Azerbaijan and Moldova. It is not difficult to note that three out of five states decided not to continue their participation in the Treaty on Collective Security, and two of the states never participated in it. This association demonstrates the signs of a military and political alliance, in the political sense it is oriented away from Russia. It is noteworthy to note that the GUUAM was announced in Strasbourg in 1997, important declarations about its purposes were made in April of 1999 in Washington, where the heads of five states were present at the jubilee session of the North Atlantic Council. And here not a single of these states so far stated its intention to withdraw from the CIS. Now let us turn to the second group of sources, which is constituted by the acts of the CIS, regulating the issues of formation and activity of the forces participating in the operations to maintain peace. The appearance of the provisions quoted earlier of the CIS Charter on the groups of military observers and collective forces to maintain peace was preceded by the elaboration of a number of special documents. On 20 March 1992 in Kiev at the meeting of the heads of the participating states of the CIS the Agreement was signed on the Groups of military observers and collective forces to maintain peace in the CIS. Article 7 of the Agreement envisaged the holding of talks, whose results were to be recorded in the additional protocols on all specific issues connected with staffing the Groups to maintain peace, logistics, legal status of the personnel and financing their activity.27 Two protocols regulating these issues were adopted on 15 May 1992 in Tashkent. This is the Protocol on the status of the groups of military observers and the collective forces to maintain peace in the Commonwealth of Independent States and the Protocol on staffing, structure, logistics and financial provisions of the group of the military observers and the Collective forces to maintain peace in the Commonwealth of Independent States.28 It is namely at this time that also the third document the Protocol on the temporary order of formation and functioning of the group of military observers

27 Sodruzhestvo, 1992 No. 4, p. 10. 28 Sodruzhestvo, 1992 No. 5, pp. 25-33.

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and collective forces to maintain peace in the zones of conflicts between the states and in the participating states of the Commonwealth of Independent States. This Protocol, perhaps, clearly expressed the intention of the Commonwealth to carry out operations to maintain peace during the settlement of not only interstate, but also of internal state conflicts. The preamble of the Protocol stated the need for early practical measures aimed at the formation and functioning of the groups of military observers and collective forces to maintain peace among the participating states of the Commonwealth... for timely and effective reaction to the possible armed conflicts between states and in the states of the Commonwealth29 (italicised by the author B. T.). The norms contained in the enumerated documents were summed up into the Provision on collective forces to maintain peace in the Commonwealth of Independent States approved by the Council of the Heads of State on 19 January 1996.30 And, finally, on the same day a special Agreement was signed on the preparation and training of military and civil personnel of the CIS participating states for participation in the operations to maintain peace.31 Later, on 18 October 1996 in compliance with this Agreement the list was approved of training centers and the order of training of the personnel in them earmarked for the collective forces to maintain peace.32 Mention should be made of several documents of the Commonwealth adopted in connection with the concrete situation, but the names and the content of which can create an impression that they allegedly create general norms. Here it is a matter of the Agreement signed on 24 September 1993 on the collective peacemaking forces and joint measures for their logistics.33 Added to it was the Provision on the united command of collective peacemaking forces and the document on the amount of shared contributions to finance the United command. Later on, on 10 February 1995 the Agreement was supplemented by a protocol.34 It is only taking into account the indirect signs that an uninitiated observer can determine that the documents adopted by the heads of state on 24 September 1993 contain legal foundation for operations in Tajikistan. The protocol which made the additions and changes to the Agreement already contains direct indications of the fact that it is a matter of namely about Tajikistan. As the above documents regulate the concrete operation, they should be referred to the third group of sources in accordance with the structure proposed by the author himself. Let me remind you that a proposition was made to include into it

29 Ibid, p. 34. 30 Sodruzhestvo, 1996 No. 1, p. 36-46. 31 Ibid, pp. 48-51. 32 The decision on the order of preparation and training of civil personnel of the participating states of the Commonwealth of Independent States delegated to be part of the Collective Forces to maintain peace. Sodruzhestvo, 1996 No. 4, pp. 76-82. 33 Sodruzhestvo, 1993 No. 4, pp. 54-64. 34 Sodruzhestvo, 1995 No. 1, pp. 32-33.

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special documents determining the mandates of separate operations carried out in the CIS. However, certain provisions of the Agreement, attachments to it and the Protocol deserve attention from the viewpoint of their conformity to the documents of the CIS which establish the general rules of conduct of operations to maintain peace in the Commonwealth. First of all, it should be pointed out that the United command is entrusted with the analysis of the military and political situation on the southern borders of the Central Asian region and submittal of reports with the conclusions on it to the supreme organs of the participating states, and also the management of the collective peacemaking forces during the training and conduct of operations (hostilities).35 The mandate of collective forces specified later entrusts them to assist the normalization of the situation on the Tajik-Afghan border in view of stabilization of the overall situation in the Republic of Tajikistan.36 The functions of the commander-in-chief of the Forces comprise independent adoption of decisions in the extraordinary situation on carrying out operations (hostilities) with the subsequent report to the heads of state and defence ministers of the participating states.37 The Protocol also introduces an amendment to the last phrase, by replacing the words extraordinary situation by the words concrete shaping situation,38 which, it seems, substantially expands the limits of discretion of the commander-in-chief. Firstly, it follows from these provisions that the Forces may carry out hostilities. This contradicts the general Agreement on the groups of military observers and collective forces to maintain peace in the CIS of 20 March 1992, whose Article 3, stipulates directly that such forces cannot be used for the participation in hostilities.39 The provision on the collective forces of 19 January 1996 brings the non-participation in the hostilities to the level of one of the main principles of these forces. Finally, the hostilities in such context not only do not correspond to the established practice of operations to maintain peace, but also contradict Article 42 of the UN Charter, and applicable to regional measures Part 1 of Article 53. Secondly, the forces of the Commonwealth in Tajikistan are supposed to be used for the control over the situation on the territory adjacent to the Commonwealth. The constituent acts of the Commonwealth and other documents envisage the carrying out of regional operations not only within the limits of the 35 Sodruzhestvo, 1993 No. 4, p. 59. It is noteworthy that the text of the document adopted by the heads of states on 24 September 1993 differs from the official publication. In the initial version after the words in training and carrying out operations (hostilities) it followed: on the Tajik-Afghan border (the author has a copy of this document B.T.). 36 The decision on the period of stay, composition and the tasks of the Collective Peacemaking Forces in the Republic of Tajikistan of 15 April 1994. The Diplomatic Herald of the Ministry of Foreign Affairs of the Russian Federation, 1994 No. 9-10, p. 47. 37 Ibid, p. 60. 38 Sodruzhestvo, 1995 No. 1, p. 32. 39 Sodruzhestvo, 1993 No. 4, p. 9.

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CIS. The function of a certain analysis of the military and political situation on the southern borders of the not quite defined Central Asian region with the subsequent specification to the effect that we speak here about Tajikistan- Afghanistan border, does not fully correspond to the tasks resolved during the implementation of operations to maintain peace as they are determined by the documents of the Commonwealth. The activity of such a kind on the border between the participant of the Commonwealth and another state is rather suitable if there is a need to prevent an armed attack from the adjacent side or resist it. Thirdly, the real conditions to carry out operations in Tajikistan are such that the presence of the collective forces answers, in fact, the interests of one of the parties in the internal conflict. Such provision contradicts the principle of impartiality and neutrality, which in conformity with the documents of the CIS must conform with the operations to maintain peace. Summing up the result it can be said that in the operation carried out by the forces of the CIS in Tajikistan, we are dealing with a mixture of elements of the measures aimed at maintaining peace and actions which are rather acceptable within the framework of the system of collective security. Such forced improvisation does not find proper legal foundation in the documents of the Commonwealth, or in the UN Charter, or in the practice of UN operations. However, there is an impression that the UN is inclined to consider it acceptable which is evidenced by a number of resolutions of the UN Security Council on the situation in Tajikistan. 4. In Lieu of Conclusion The fifty-year practice of operations to maintain peace makes it possible for the researcher to propose various approaches to their gradation from the viewpoint of generations. For example, the earlier operations were carried out only by the forces of groups of unarmed military observers. The lightly armed contingents were sent to the regions of conflicts starting from 1956. In the 1990s the UN forces were already equipped with heavy arms including artillery and armour, and in case of necessity they were capable of summoning air force. Here the operation did not go to the level of coercion to peace, although at times it could include separate elements of coercion. From this standpoint it is possible to speak about the three generations of operations. It is admissible as a criterion to use components making up the contingent participating in the operation. At the early phase these were military observers, later on the operations were carried out by the forces of the military contingent with the participation, although autonomous, of military observers. In the future the operations were joined by the forces of civil police, the organs which were involved in the delivery or coordination of delivery of humanitarian assistance, the experts who supervised the observance of human rights. Along with the United Nations on the theatre where operations were carried out other international organizations could also be active in parallel. Certain operations, especially when

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the structures created by the UN, in fact, substituted the disintegrating national power institutes they began to use the groups of specialists who were restoring the economy of the county, ensuring the preparation and the holding of elections in the revived state organs. In various operations the above components were used in different combinations. From this viewpoint it is admissible to speak about single- component, simple multi-component and complex multi-component operations. Finally, if initially the operations to maintain peace were carried out in the conditions of confrontation between various states, then starting from the end of 1980 they become more often a means of settling internal conflicts. By the way, such attempts of periodic implementation of operations are not only conditional, but they hardly have considerable practical value for the preparation of operations and they represent mainly an academic interest. However, for the purposes of this article it is important to say that in the operations carried out in the region of the CIS, practically immediately many of the above-mentioned elements mixed up. These operations are distinguished by a lot of peculiarities as compared with the UN operations. Unlike the UN practice, the documents of the CIS regulating the preparation and holding of operations to maintain peace, they allow the actions of the groups of military observers within the collective forces. Not a single of the operations in the Commonwealth was carried out with the use of only military observers. In separate operations from the very outset heavy arms and materiel were used. The operations carried out on the territory of the CIS initially were multi- component. True, the military components prevail in them. Parallel with the organs of the Commonwealth in the regions of a number of operations the missions of international organizations are also active. For example, in Tajikistan this is the UN Mission of Observers and the mission of the Organization for Security and Cooperation in Europe. The documents of the Commonwealth oblige the command of the forces to maintain working contacts with the representatives of other international organizations and submit them information on the activity of the collective forces to maintain peace. The resolutions of the UN Security Council provided positive assessment of the close contacts and interaction between the collective forces of the CIS and the UN missions and other organizations. Finally, unlike the UN practices, the Commonwealth so far not a single time carried out operations to maintain peace in the conditions of interstate conflict. True, back on 20 March 1992 the Council of the Heads of State decided to allow the sending of collective forces to maintain peace to the zone of the Karabakh conflict. However, the realization of this decision was conditioned, firstly, by the requests on the part of Azerbaijan and Armenia and, secondly, by the achievement of an agreement between them on the cessation of fire and other hostile actions.40 Nevertheless, in the near future it is hardly possible to expect the carrying out of the CIS operations in that region.

40 Ibid, p. 11.

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Everything said above does not exhaust the peculiar manner of operations to maintain peace in the Commonwealth. For example, the involvement of the conflicting parties in the participation of carrying out operations is an unusual phenomenon. This is directly envisaged by the agreements on peaceful settlement of armed conflicts in Trans-Dniestr, South Ossetia and in Abkhazia.41 Although these agreements were concluded by the CIS organs, it would be justified to expect that they and operations established by them will correspond to the general norms fixed by the Commonwealth, the more so that the operation in Abkhazia soon came under the aegis of the CIS.42 Meanwhile, Article 4 of the Agreement on the groups of military observers and collective forces to maintain peace in the CIS contains an unambiguous ban on the involvement of the contingent of the conflicting parties to be part of the forces to maintain peace.43 And here is another example. The attention of the reader was already drawn to the noteworthy peculiarities of the documents on carrying out operations in Tajikistan to the effect that that concerns the use of armed force. These documents can be interpreted both as transgressing the prerogatives of the UN Security Council in the part of using coercive actions by regional organs. However, the list of enforcement measures envisaged by Article 41 of the UN Charter, includes measures connected with the use of armed forces. The practice of the United Nations forcefully went along the way of applying measures planned by the founders of the world organization for the solution of international conflicts,

41 The Control Commission was set up consisting of representatives of three parties participating in the settlement, that is, Russia, Moldova and Trans-Dniestr under the Agreement on the principle of peaceful settlement of the armed conflict in Trans-Dniestr region of the Republic of Moldova of 21 July 1992. In conformity with part 3, Article 2, the Commission was also given the military contingent set up on a voluntary basis representing the parties participating in the fulfilment of that agreement. The Diplomatic Herald of the Ministry of Foreign Affairs of the Russian Federation, 1992 Nos. 15-16, p. 35. A similar Control Commission was formed in accordance with the Agreement on the principles of settlement of the Georgian and Ossetian conflict of 24 June 1992. In accordance with part 3, Article 3, of the Agreement, the Commission had at its disposal the created mixed forces in agreement with the Parties to establish peace and maintain law and order. The bulletin of international agreements, 1993 No. 8, p. 26. In accordance with the final document of the Moscow meeting of 3 September 1992 devoted to the settlement in Abkhazia (Georgia) a trilateral Commission was set up for the control and inspection. Part 4 of Article 1 of the Final document is, in fact, an international agreement. The Commission was given relevant units carrying out disarmament, disbandment and removal from Abkhazia and also prevention of coming to Abkhazia of illegal armed formations and groups in order to ensure strict control along the entire perimeter of the zone of conflict. The diplomatic herald of the Ministry of Foreign Affairs of the Russian Federation, 1992 Nos. 17-18, p. 14. 42 Foreign experts recognize the CIS operations only operations in Abkhazia (Georgia) and Tajikistan. SIPRI Yearbook 1998 Armaments, Disarmament and International Security. Oxford University Press, 1998, p. 58. 43 The composition of the Group to maintain peace is formed on a voluntary basis for the participating states of the present Agreement, save the conflicting parties (selected by the author B. T.), by way of granting military contingents, military and civil observers, or other civil personnel, and also assistance, the relevant means of servicing, including the right of passage) Sodruzhestvo, 1992 No. 4, pp. 9-10.

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for the situations arising inside states. A conclusion inevitably arises that full or partial interruption of economic relations, transport communications envisaged by the UN Charter as measures of influencing the state law-infringer are applicable both in the interstate conflict in regard to the party infringing the law. But if one follows the logic, then in that case it is necessary to obtain a sanction of the UN Security Council, because Paragraph 1 of Article 53 will be applicable to such conflict regulated by the norm of the Charter. In this connection a question arises: was it necessary for the Commonwealth to obtain the authorization of the UN Security Council before applying measures of economic coercion to one of the parties of the conflict in Abkhazia (Georgia)? In accordance with the decision of the Council of the Heads of States of the CIS of 19 January 1996, the participants of the Commonwealth committed themselves to take a number of measures in regard to the Abkhaz side, in particular, to refuse from commercial and economic, financial, transport and other operations with its authorities.44 If we recognize that such measures can be described as enforcement, it is admissible to raise the issue of securing authority from the UN Security Council first. Several paragraphs above the operation in Tajikistan was described as forced improvisation. Obviously, it is possible to describe other such operations to maintain peace and many other things in the activity of the Commonwealth of Independent States. The Commonwealth itself, which emerged instead of the disintegrated Soviet Union, did not get until now a certain and stable subjectivity, although it has inherent features of regional intergovernmental organization. Possibly this partially explains the peculiarity of certain actions of the Commonwealth, the departure from the existing international and legal norms and the generally recognized practice.45 The author may be reproached of the legal idealism for the assertion that during the implementation of operations by the Commonwealth to maintain peace, in which it is allowed to make use of the armed forces, there is a need for the most scrupulous adherence to these norms and practices. However here it isnt at all a matter which what should be demanded: Fiat justitia, pareat mundus Let the law triumph, although the world has perished (Latin). Teaching international law at the Diplomatic Academy of the Foreign Ministry of the Russian Federation the

44 See Sodruzhestvo, 1996 No. 1, p. 55. 45 On the contrary, certain authors are convinced that these operations correspond to the generally recognized international purposes and principles, although they admit that use is made in them of somewhat different from the earlier existing practices and methods. B. A. Bekmurzayev . The Peacemaking Activity of Russia in the Settlement of Armed Conflicts in the CIS. The Moscow Journal of International Law 1994, No. 4, p. 19. Other authors, noting similar inessential deviations from the existing practice, make hints as a justification of the possibility of polysemantic interpretation of the existing rules. And in the future, according to them, it is necessary to achieve the maximum consideration of taking into account the specifics of operations and the developed norms, carried out in the region which is the CIS, taking into consideration peculiarities available there. A. V. Demurenko and others. The Peacemaking Operations in the CIS. The International and Legal, Political, Organizational Aspects. M., 1998, pp. 27-28.

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author had an encounter with a student, a combat officer paratrooper decorated with one of the top state awards. At a seminar where the legal norms were examined applied in the operations to maintain peace, he patiently and for a long period of time answered the questions of the teacher, and then he said the following: If only I will have to take into account all the legal norms, I am going to lose the soldiers and I will not fulfil my tasks. The main peculiarity of these operations consists in that that the main role in them is played by Russia, it bears a lions share of expenses and losses, including manpower. The departure from legal norms provides additional arguments to those who accuses Russia of the attempts to recreate the empire on the territory of the former USSR or, at least, to exert effective political pressure on the states of the region.46 By the way, I realize that in the light of NATO military operations on the Balkans in March-June of 1999, carried out with full neglect to the requirements of both VIIth and VIIIth chapters of the UN Charter, the calls to carry out operations to maintain peace in the CIS, scrupulously adhering to the relatively stable norms and practices, may sound unconvincingly.

46 It is feared that such operations, by a country which is clearly not disinterested, cold lead to political domination. The hard fact, however, is that until now no other state or international organization has appeared willing to replace or capable of replacing Russia as a peacekeeping force in the former Soviet territories» Challenges for New Peacekeepers. SIPRI Research Report No. 12 Ed. Trevor Findlay. Oxford University Press, 1996, pp. 82-83. And here is another interesting statement: Russias role in the ongoing conflicts on the territory of the CIS is recognized as essential, in terms both of peacekeeping and of efforts for political settlement. In some cases attempts to work out political compromises and reluctance to give peacekeepers enforcement missions are interpreted as freezing the status quo and perpetuating conflicts SIPRI Yearbook 1998, p. 138.

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THE CONVENTION TO COMBAT TERRORISM, SEPARATISM AND EXTREMISM

A.V. Zmeyevskiy* The day of June 15, 2001 will go down in the history as the birthday of a new regional association of states the Shanghai Cooperation Organization (SCO) whose members are the Russian Federation, Kazakhstan, Kirghizia, China, Uzbekistan and Tadzhikistan. The SCO is a logical result of the spiraling interaction (earlier within the format of the Shanghai Five) of the interested states first of all in the Central Asian direction. Although the process of the organizational and legal formation of the SCO is still in the initial phase, its appearance in the world on June 15, 2001 at the summit in Shanghai was immediately marked by the signing at the top level of the first treaty act of that organization the Shanghai Convention on Combating Terrorism, Separatism and Extremism. Thus, it clearly indicated one of the priority vectors of cooperation within the framework of the new structure the joint counteraction to challenges and threats to security in the Central Asian region. The Convention, called on to become the first step on the road of formation of the treaty and legal basis of the anti-criminal interaction within the framework of the SCO, has been developed in conformity with item 5 of the Dushanbe Declaration of Heads of State of Russia, Kazakhstan, Kirghizia, China and Tadhikistan of 5 July 2000, in which the parties, having reiterated their determination to fight jointly international terrorism, religious extremism and national separatism, posing the chief threat to regional security, stability and development, have agreed to conclude the necessary multilateral treaties and agreements on cooperation in that sphere. The Convention is called on to contribute to the development of practical interaction of the law enforcement agencies and special services of the participating states in the struggle against terrorism, and violent manifestations of separatism and extremism, in Central Asia in the first place. The anti-terrorist cooperation envisaged in it will be carried out taking account of the mechanisms, tested in international treaties concluded under the aegis of the United Nations Organization and the CIS. Thus, the definition of terrorism (art. 1) is based on the qualification of this phenomenon in the International Convention for the Suppression of the Terrorism of 1999, which takes into consideration the specifics of the international and legal aspect of the present-day * Alexander V. Zmeyevskiy Director of Department on New Challenges and Threats of the Ministry of Foreign Affairs of The Russian Federation.

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global anti-terrorist interaction. Owing to the absence of the generally recognized definition of terrorism the struggle with is conducted on the basis of more than a score of universal conventions aimed against concrete terrorist manifestations (in air, at sea, against certain categories of individuals etc.). Therefore, the first part of the definition of terrorism in art. 1 of the Shanghai Convention bears a reference character, qualifying terrorism as some deed recognized as crime in one of treaties listed in the Attachment to this Convention, and as it is defined in this treaty (the Attachment consists of 10 global anti- terrorist conventions, envisaging the inevitability of responsibility of criminals on the basis of the principle extradite, or prosecute/Latin: aut dedere, aut judicara). The Convention (art.21) envisages the procedure of replenishment of the list of treaties recorded in the Attachment. Besides the party not participating in one of the treaties enumerated in the Attachment, can declare that in case the Convention is applied to this party, it is believed that this treaty has not been included in the Attachment. Such statement becomes invalid after notification of the depository on the coming of this treaty into force for this party. In the second part of the definition of terrorism an attempt is made to encompass those of its manifestations, which may not fall under the action of the international conventions indicated in the Attachment. The matter concerns any other deed aimed at causing death of some civilian or any other person, not actively participating in hostilities in the situation of an armed conflict, or inflict a serious bodily injury to him, and also inflict considerable damage to some material object, as well as organization, planning of such a deed, complicity in its commitment, incitement to commit it when the aim of such deed due to its character or context consists in intimidation of the population, violate public security or force the organs of power or an international organization to commit such action or abstain from its commitment. Such corpus delicti as organization and planning of a criminal deed, complicity and incitement have been added to the basis of the second part of the definition of terrorism which incorporated the formulations of the International Convention to fight the financing of terrorism. Such a pragmatic approach of the authors of the Shanghai Convention has been prompted by the desire to abide by the general directions of anti-terrorist interaction coordinated at the global level. Besides, the legal qualification of the illegitimate deed was of a subordinate nature in the context of the chief objective of the Shanghai Convention the upholding of effective interaction of the law enforcement agencies and special services on the relevant directions. The gist of the Convention is the spread of its action to the struggle with separatism and extremism. The main juridical difficulty consisted here in the elaboration of definition of separatism and extremism. Of principal importance was the understanding by the authors of the Convention of the idea of the struggle exclusively with violent manifestation of separatism and extremism, punishable by criminal prosecution in compliance with

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the national legislation of the participating states1 . The definitions of separatism and terrorism have been worked out on this basis an they took into account the relevant provisions of the national legislation of the participating states. In the Convention separatism is defined as a deed aimed at breach of the territorial integrity of the state, including the separation of a part of its territory or disintegration of the state committed by force, as well as its planning and preparation of such deed, complicity in its commitment, incitement to it, and criminally prosecuted in conformity with the national legislation of Parties. Extremism is defined by the Convention as a deed aimed at forcible seizure of power or holding of power by force, as well as violent change of the constitutional order of the state, and equally violent encroachment on public security, including organization for the above purposes of illegal armed formations or participation in them, and criminally prosecuted in accordance with the national legislation of the Parties. Of course, these definitions do not bear an all-encompassing nature. They are (just like the definition of terrorism) of purely applied importance exclusively for purposes of this Convention, about which a relevant entry was made in item 1 of art. 1. It was important to single out those manifestations of terrorism, separatism and extremism, which in their intermingling create an explosive mixture, representing the main (at least, in the Central Asian region) danger for the participating states and calling for the unification of their efforts for a adequate answer to these challenges. On the whole the notions of terrorism, separatism and extremism have their own components, going beyond the framework of the definitions given in the Convention, but also of the criminal and legal norms in general. Taking this into account, a proviso is made in item 2 of art. 1: the present article inflicts no damage to any international treaty or any national legislation of the Parties, which contain or may contain provisions on a broader application of the terms used in this article. The Convention strictly pursues the line to the effect that the deeds envisaged in it are not subject to acquittal under any circumstances for reasons of exclusively political, philosophic, ideological, racial, ethnic, religious or any other similar character. For these purposes it is also envisaged to take measures in order to foresee for these deeds a punishment in accordance with the degree of their seriousness. The Convention is clearly oriented toward operational interaction of the competent organs of its participants in the issues of prevention, detection and restriction of the deeds falling under the definition of terrorism, separatism and extremism envisaged in its art. 1. Examining such deeds as crimes, entailing extradition, the Convention leaves the decision of the issues connected with the extradition or legal assistance on criminal cases, referring to the sphere of its application, with other international treaties, regulating these procedure in detail. 1 The provision on criminal prosecution (in conformity with the national legislation of the participating states also fully refers to the deed, falling in the Convention under the definition of terrorism.

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The main scheme of cooperation envisaged by the Convention is as follows: the participating states determine the central competent organs responsible for the compliance with the Convention (their list is notified through the depository), which interact between them directly (art. 4). This does not, however, rule out cooperation between the participating states themselves, for example, by way of holding consultations, exchange of opinions, coordination of positions on the issues of struggle with illegal deeds, including in international organizations and at international forums (art. 5). Among the principal forms and directions of cooperation of the central competent organs the Convention has determine exchange of information, implementation of the issues on carrying out operational search actions, adoption of measures aimed at the prevention of arms supplies and ammunition to terrorist groupings, and also the activity of the centers for training combatants, their financing. The possibility was also envisaged to achieve understandings on other forms of cooperation, including rendering by the parties of practical assistance to each other concerning the prevention of criminal deeds and liquidation of their consequences. Such understandings are formalized by relevant protocols, which constitute an integral part of the Convention. Thus, a legal basis is created so in perspective it would be possible to make use of the more advanced forms of interaction (for example, by expediting special anti-terrorist formation to assist the side concerned at its own request). Article 10 of the Convention opens up a new page of the anti-terrorist interaction within the SCO framework. In act, by concluding a separate agreement and adoption of other documents it is proposed to institutionalize it for the purpose of creation and maintenance of the functioning of a regional anti-terrorist structure. The work in this direction has already been going on at the level of experts. It is suggested to limit the exchange of information (art. 7) by the data of mutual interest, in particular, on: criminal deeds which are being prepared or committed, and also on prevented attempts of their commitment; preparations to commit criminal deeds in the sense of the Convention in regard to heads of state and other statesmen, members of diplomatic missions, consulates and international organizations; other persons, enjoying international protection, and also participants of state visits, international political, sporting and other events; organizations, groups and persons, preparing and/or committing these criminal deeds in the sense of the Convention, and also otherwise participating in these deeds, including their goals, tasks, connections and other information; illegal manufacture, acquisition, storage, transfer, movement, sale and use of potent toxic, poisonous, explosives, radioactive materials, arms, explosive devices, fire arms, ammunition, nuclear, chemical, biological and other types of

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mass destruction weapons, materials and equipment, which can be used in the process of its creation to commit criminal deeds in the sense of the Convention; exposed or implicit sources of funding such deeds; forms, methods and means of their commitment. The Convention provides for detailed regulation of the procedure of fulfillment of requests on carrying out operational search actions. In this connection the following is worth of attention. During the execution of the request the legislation of the requested party shall be applied. Upon request of the inquiring central competent organ the legislation of the requested side may be applied, if this does not contradict the main principles of the legislation or international commitments of the requested side. Reasons for refusal have also been envisaged in the execution of inquiry (fully or partially), if its execution (according to the inquired central competent organ) may inflict damage to sovereignty, security, public order and other major interests of its state or contradicts the legislation or international commitments of the inquired side (for the same reasons the execution of the inquiry can be delayed). Besides, the execution of the inquiry may be refused, if the deed, in connection with it came in, is not considered to be a crime under the laws of the inquired side. If the execution of the inquiry is out of competence, the inquired central organ has no competence to execute the inquiry, it is handed over to another central competent organ of its state authorized to execute it, and immediately notifies about this the inquiring central organ. Such cross insurance contributes to the effective execution of inquiries and in general the realization of the Convention in the conditions of quite possible incongruity of powers of the law enforcement structures of the participating states. Each state-participant ensures the confidentiality of the received information and documents, if they are of closed nature or if the inquiring side believes their disclosure to undesirable. The extent of secrecy of the information and documents is determined by the submitting side. The information or the results of the execution of the inquiry received on the basis of the Convention, without consent of the side that submitted them cannot be used for other purposes than those with which they were requested or submitted. It is also prescribed that information and documents received on the basis of the Convention without preliminary written consent of the Party that submitted them are not subject to transfer. The materials, special means, equipment and machinery received on the basis of the Convention are similarly not subject to transfer without preliminary written consent of the side that submitted them. The costs connected with the fulfillment of the Convention are borne by the participating stated independently, if not a different order is agreed upon. The Russian and Chinese languages are the working languages in the implementation of cooperation within the framework of the Convention.

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Participation in the Convention is not closed. The Russian Federation, Kazakhstan, Kirghizia, the CPR, Tadzhikistan and Uzbekistan are its initial participants. After the Convention comes into force upon consent of all parties other states may also joint it. In a similar way upon consent of all parties the possibility will also be envisaged of making changes and additions to the Convention, which are formalized by Protocols, which are an integral part of the Convention.

* * * * *

The appearance of the Shanghai Convention goes in the course of the overall world tendency of strengthening the anti-terrorist interaction of states on a regional level. The beginning to this process was laid in 1971 by the adoption under the aegis of the Organization of American States of the Convention to Prevent and Punish the Acts of Terrorism Taking the Forms of Crimes Against Persons and Related Extortion that are of International Significance. In the same row they are followed by the European Convention on the Suppression of Terrorism concluded within the framework of the Council of Europe in 1977, the 1987 Regional Convention on Suppression of Terrorism of the South Asia Association of Regional Cooperation (SAARC). Among the treaties of the last years are the Arab Convention on the Suppression of Terrorism concluded in 1998 under the aegis of the LAS, the 1999 Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism, the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism, the OAU Convention on the Prevention and Combating Terrorism. The Shanghai Convention is aimed at a comprehensive counteraction to terrorism, violent manifestations of separatism extremism. Of no small importance is also the fact that its provisions can serve as the international legal basis for the development of bilateral cooperation between the participating states on relevant directions. Another distinguishing feature of this treaty instrument is the institutionalization of interaction by way of setting up the Regional Anti-Terrorist Structure (RATS), called on to become a multilateral mechanism of implementation of the Shanghai Convention into practice. It is of no small importance that the newly created structure correlates this work with the common world system of struggle with terrorism and coordinates its efforts with other interested regional structures, acting in this field. A further development of events will show whether the Shanghai Convention is viable and effective. A decisive role in this, obviously, will be played by the political will of the states its participants. It is necessary as soon as possible to commission the mechanism of the Shanghai Convention, having carried out with this purpose the relevant interstate procedures. This must be done by the SCO participants without exception.

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LEGAL STATUS OF RUSSIAN MILITARY BASES ABROAD

V.V. Svinarev* The Concept of National Security of the Russian Federation assumes that it is in the interests of the Russian state to have a military presence in some strategic regions of the world and to have limited military contingents (military bases) stationed there.1 And considering the particular interest in promoting relations with the near abroad states the Decree of the President of the RF envisages the creation of Russian military bases in the near abroad.2 The CIS countries currently host about 30 military bases, military facilities, test ranges, arsenals, airfields, dumps and detached units, etc.3 The total strength of RF military groups in the near abroad countries is about 125,000 (25,000 are with the foreign groups of the Federal Border Service of Russia and about 100,000 are stationed at military bases or are included in the peacekeeping contingents of the Commonwealth countries). The Russian military presence in the CIS countries is based on the Collective Security Treaty of 1992, the Declaration on Sovereignty and Territorial Integrity and Inviolability of the Borders of the CIS States of 1994, the Memorandum on the Maintenance of Peace and Stability in the Commonwealth, and on bilateral agreements between member states. In the literature, military bases normally means specially equipped areas used by the state to deploy its armed forces with an eye to proposed or existing theatres of hostilities.4 In the most general way the legal status of military bases on foreign territory is a complex of international and internal legal norms that determine the procedure and conditions of the creation of such bases and the use thereof as well as regulate the relations in the area between the agents engaged in the activities connected with the existence and functioning of this or that military base. These norms are really the rights and obligations vested with the commanders (chiefs) of military facilities and bases on the territory of a foreign state as legal subjects acting on behalf of their state, on the one hand. On the other hand, the states on whose territories * V.V. Svinarev LLD. 1 See Decree of the President of the RF of December 17, 1997, No. 1300, On Approving the Concept of National Security of the Russian Federation, SZ, No. 52, December 29, 1997, Article 5909. 2 See The Strategic Course of Russia with Regard to the States Members of the Commonwealth of Independent States. Decree of the President of the RF No. 940 of September 14, 1995, SZ, No. 38, September 18, 1995, Article 3667. 3 There are no fundamental differences of legal status between military facilities and military bases of the Russian Federation and they are used interchangeably in this work. 4 See Dictionary of International Law, Moscow, 1986, p. 19 (in Russian).

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the bases are located through their competent bodies also possess certain rights and obligations with regard to the military bases. It is important to note that having rights and bearing responsibilities are brought together in a single system of legal relations by sealing the legal responsibility for the violation of the rules of behaviour of the participants. Thus, the legal status determines the de facto position of a military base on foreign territory. The concepts of legal status and legal position are for the most part treated as equivalent terms. In any case legislation, legal practice and doctrine do not draw any distinction between them and use them interchangeably.5 The legal status of a military base on foreign territory is a complex legal category reflecting the entire range of its links with the host state and its own country. The structure of that concept includes the following elements: a) legal principles; b) the main rights and obligations; c) aspects of jurisdiction regarding personnel; d) granting of privileges; e) legal liability. A condition and prerequisite of possessing rights and obligations is the civil- law affiliation of the military base and the political-legal status of its personnel. These legal factors determine the legal possessor of the property (infrastructure) and affiliation of natural persons with this or that state which in its legal form is expressed in the institutions of the right of ownership and citizenship whose norms determine the conditions and procedure of their acquisition, forfeiture, etc. Determining the range of rights and obligations of the state that is establishing the military base and the personnel of the base is above all a matter of internal jurisdiction of the receiving country. This flows from the application of the principles of sovereignty of each state and non-interference in its internal affairs. But this should not be construed to mean that the rights of the receiving state in this area are unlimited. The receiving state in its actions with regard to the military base in its country must proceed from the principles of international law as well as international treaties under which such bases are created. Among the main principles the key ones in this case are: the principle of mutual respect of state sovereignty and independence, equality and non-interference in internal affairs, non-use or threat of force; peaceful settlement of disputes; respect of human rights and basic freedoms, good faith compliance with obligations, etc. In regulating the legal regime of military bases one should also bear in mind the existence of special principles applicable in this area.6 They include: 1. The principle of restricted (special) jurisdiction of the receiving state over military bases and their personnel. This principle is enshrined in international treaties and regulations of the state. It has to be noted that military bases on the

5 See op. cit., p. 293. 6 The special principles of regulating the status of foreign legal entities (and in this case Russian military bases abroad are legal entities) and foreign citizens is the subject of many works by Russian authors. Fore more detail see, for example, A.A. Rubanov Theoretical Foundations of International Interaction of National Legal Systems, Moscow, 1985, p. 67 (in Russian); L.N. Galenskaya Legal Status of Foreigners in the USSR, Mezhdunarodniye Otnosheniya, Moscow, 1982, p. 14.

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territory of a foreign state are protected from direct interference in their activities on the part of the receiving countrys authorities, albeit not in the same form as diplomatic immunity. For instance, under the 1995 agreement between Russia and Georgia on military bases, the plans and events involved in operational and combat training, movement of military vehicles to test ranges, training fields and firing ranges, the flights of aircraft in the interests of military bases, etc., have to be cleared with the competent bodies of the receiving country.7 2. The state which owns the military base and of which the personnel of these bases are citizens has the right to protect its property and the people servicing these bases. The main problem in applying this principle is when and how the above right may be exercised. One has to go along with the view expressed by L. Oppenheim on the protection of a states citizens abroad. He wrote among other things that each state can exercise its right of protection if any of its citizens has suffered damage abroad with regard to his personality or property irrespective of whether the damage has been caused by the receiving state or by officials or citizens of the state if the state does not intervene to compensate the damage caused.8 This approach appears to be justified with regard to state property abroad, the property of foreign state agencies, including military bases. Some similarity between the status of military bases and diplomatic missions has already been noted above and accordingly, the issues of compensating for the damage caused to the property of military bases may be approached in the same way as that envisaged under diplomatic law.9 3. The principle of inviolability of military bases and the safety of their personnel. This provision rests on a fairly extensive body of treaties and legislation and it creates conditions for coordination between the competent bodies of the parties the prosecutors offices, interior and national security ministries, defence ministries and other administrative structures.10 The legal status of the armed forces on foreign territories is determined by bilateral and multilateral agreements. But in addition to confirming the corresponding rights and obligations, the agreements regulate the procedure or location (territory) of the military bases, their tasks and functions, the competence of organizational structures they comprise, the procedure of movement of units, the terms of the use of various structures, transport and communication means, the use of weapons, etc.

7 See Treaty Between the Russian Federation and the Republic of Georgia on Russian Military Bases on the Territory of the Republic of Georgia, 1995. 8 See: L. Oppenheim International War, Vol. 1, 1949, p. 248 (in Russian). 9 See: Yu.G. Dyomin Status of Diplomatic Missions and Their Personnel. Mezhdunarodniye Otnosheniya, Moscow, 1995, p. 47. 10 See, for example, Agreement Between the Russian Federation and the Kyrgyz Republic on Issues of Jurisdiction and Mutual Legal Assistance Over Cases Connected with the Presence of Military Formations of the Russian Federation on the Territory of the Kyrgyz Republic, 1996.

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The legal status of the locations of military bases is determined by their function. By locations of military bases the agreements concluded mean the airfields, buildings, stationary structures and service lines, military camps, railway approaches, training fields, test ranges, firing ranges, residential houses as well as the area of land on which a military unit of the Russian Federation is stationed. Agreements require a clear designation and approval of the boundaries of such territories and contain an exhaustive list of the objects pertaining to the military bases.11 This enables the receiving state to reasonably limit Russian military presence on its territory which must be confined to the need to ensure security and may be increased or reduced as threats to security increase or diminish. Thus, after the Istanbul summit of 1999, the Georgian President demanded that the number of Russian military bases on his countrys territory should be reduced to two.12 Armenia is poised for a similar decision. Naturally, in such cases we can only talk about agreed actions of the parties under international law and on the basis of bilateral treaties which take into account, among others, the interests of the Russian side. The practice of the functioning of the Russian military bases shows that in principle they do not need additional confirmation of their right of ownership. For example, under the agreement with Kirghizia, the locations of military units and military facilities are leased to the Russian Federation. The lease agreement is concluded by the Defence Ministry on the Russian side and by the State Committee for Defence on the side of the Kyrgyz Republic. Rent is payable by supplies of arms and military equipment, maintenance services, training of officers and junior- level specialists, provision of information and other methods of mutual offset of payments.13 Under the same agreement all the immovable property of military facilities over the period of their use is transferred as is for the use by the Russian side without rent pay. Besides, the Russian Defence Ministry has the right, by agreement with the Kyrgyz side, to modernize the military facilities by replacing outdated equipment, refurbishing and erecting new buildings and structures. In the event

11 Thus the supplement to the Treaty with Georgia contains the full list of units, military enterprises, institutions and organizations located at the Russian military bases in Batumi, Vaziani, Akhalkalaki and Gudauta. The supplement to the Agreement with Kirghizia lists the following as the objects of the armed forces of Russia stationed on the territory of the Kyrgyz Republic: the anti-submarine weapons test base of the Russian Navy in Karakola, the Russian Navy communications centre in the village of Spartak, the automatic seismic station of the Russian Defence Ministry Seismic Service in the village of Ichke-Suu and the automatic station in the village of Mailuu-Suu. Under an agreement between the Russian Federation and Ukraine on the Black Sea Fleet (1995) the Russian Black Sea Fleet uses the Black Sea Fleet facilities in the city of Sevastopol and other bases and locations for vessels, aircraft, coastal troops, operational, combat, technical and logistical facilities in the Crimea. 12 The formal grounds for the decision was the requirement that the maximum levels of conventional weapons and military hardware should be agreed in accordance with Article 8 of the Treaty on Conventional Forces in Europe. See Vestnik MID SSSR, No. 24 (82), 1990, pp. 19-32. 13 Similar agreements on lease of facilities have been concluded with Kazakhstan, Tajikistan and other states on whose territories Russian military facilities are located.

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these objects cease functioning, all the immovable property, including refurbished and newly created, is transferred free of charge under the jurisdiction of the Kyrgyz Republic. There may be other approaches to subsequent jurisdiction with regard to immovable property. Thus, under the treaty with Georgia, the immovable property built on Russian military bases during the period of their use is owned by the side that has financed the construction thereof. Obviously, if military bases cease to be used, the issue regarding such objects will require special approvals and legal regulation. Under a rule that is common to all agreements, all the immovable property of the military bases14 is the property of the Russian Federation and, in the event these objects cease functioning, is to be moved to the territory of the Russian Federation or sold locally. The questions of joint use of objects of military infrastructure in the interests of both sides need further study. Under the agreement with Moldova, the military airfield of Tiraspol is jointly used by the aviation and military units of Russia and by civil aviation of the Transdniestria region of the Republic of Moldova.15 Facilities jointly used by the forces of the Russian Federation and the Republic of Belarus are troops control centres, the places of deployment of the troops, the engineering structures on the terrain, the positions and objects of the forces and assets of air defence, military equipment repair facilities.16 Some aspects of this problem are partially regulated by agreements. For example, the parties share the cost of financing military infrastructure facilities, building and restoration work, provide each other with reports on the use of the above facilities, etc.17 At the same time the problems of jurisdiction over the personnel of such facilities and the safety of the units deployed, including the powers of the bodies involved in ensuring security, merit a closer look in each particular case.

14 The immovable property of military bases includes regulation property of Russian military bases, including all types of weapons, ammunition and other equipment as well as any other technical means required for the life support and functioning of Russian military bases. See, for example, the Treaty Between the Russian Federation and the Republic of Georgia on Russian Military Bases on the Territory of Georgia of 1995, Article 1.6. 15 See Agreement Between the Russian Federation and the Republic of Moldova on the Legal Status, Procedure and Time of Withdrawal of Military Formations of the Russian Federation Temporarily Located on the Territory of the Republic of Moldova, 1994, Article 7. 16 See Agreement Between the Russian Federation and the Republic of Belarus on Joint Use of Military Infrastructure Facilities by the Russian Federation and the Republic of Belarus to Ensure the Security of the States, 1998, Article 2. 17 For example, under the agreement with Georgia, the command of the armed forces of Georgia reports only on the technical condition of the structures and equipment used in the course of planned activities, and the command of the military units of the Russian Federation state the goals, time, name (number) of the military unit and the technical condition of the structures and facilities used in the course of the event in question. See Agreement Between the Government of the Russian Federation and the Government of the Republic of Georgia on the Procedure and Terms of Joint Use of Training Centres, Test Ranges, Firing Ranges, Facilities, Airfields and Ports by the Military Formations of the Russian Federation and the Armed Forces of the Republic of Georgia, 1993, Article 2.

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Being part of the territory of the receiving state, military facilities (bases) have a special status whose essence consists in limited (special) jurisdiction of the authorities of the receiving country. For example, the agreement on jurisdiction with regard to Russian bases in Armenia stipulates that the laws of the Republic of Armenia do not apply to cases involving crimes or offences committed on the location of the Russian military base.18 It also stipulates that if the need arises to carry out within the boundaries of the Russian base procedural, detective, investigation and other actions on cases under the jurisdiction of the Republic of Armenia, such actions are to be carried out by the competent bodies of Armenia jointly with the authorized agencies of the Russian Federation or Russian bodies upon written request of the Armenian side if the conduct thereof does not contradict the laws of the Russian state. These circumstances warrant the definition of the legal status of the military base as a facility that enjoys immunity. In addition, the concept of immunity in diplomatic law implies, on the one hand, the duty of the receiving state to ensure that its officials refrain from certain concrete actions with regard to the diplomatic mission, and on the other hand, the duty of the receiving state to protect the mission from encroachments on the part of private persons. Obviously, the consent (or refusal) of the command of the Russian base regarding the conduct of procedural, detective and other actions on the location of the base may be seen as one aspect of immunity. As for the second aspect, Article 13 of the Treaty with Georgia makes it incumbent upon the Georgian side: a) to prevent actions that impede the functioning of the Russian military bases and b) to take the necessary measures to ensure the security of Russian military bases, and their property, including measures to prevent and stop any illegal acts with regard to them. The practice of ensuring immunity of military bases has no instances of serious violations. But it does highlight some legal problems. For example, if the institutions of immunity were expressly included in the agreements, this would make it possible to delineate more clearly the jurisdiction of the receiving country over the military bases, determine the circle of people vested with powers to allow access to officials of the receiving country to the location of military bases. Considering the acuteness of the problem, it would help if there were a special provision on immunity of military bases to such coercive actions as search, arrest, requisitioning or executive actions, immunity of documents and correspondence. Theoretical grounds for this approach may also be provided by argumentum a simili (argument from analogy), by invoking the theory of the functional need for diplomatic missions to be vested with immunity. The term functioning of the military base is many-sided and includes such elements as activities to ensure the combat readiness, maintain communication with its own state, maintain contacts and communications with the competent 18 See Agreement Between the Russian Federation and the Republic of Armenia on the Jurisdiction and Mutual Legal Assistance on Matters Connected with the Presence of the Russian Military Base on the Territory of the Republic of Armenia, 1997, Articles 5, 8.

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bodies of the receiving state; and economic activities. The effectiveness of the bases depends on the legal regulation of the main areas of their activities.19 The activities to ensure the combat readiness of Russian military bases take the form of planned operational and combat training activities as well as manoeuvres, exercises, firings, etc. The conduct of activities outside the base is agreed by the command of the base with the authorized state agency. The procedure, the areas and time of exercises, the number of participants, the timing of the stages of firings and the safety zone, environmental and other issues pertaining to the exercises are to be agreed. Furthermore, the routes of the movement of the caterpillar vehicles to test ranges, training fields and firing ranges and their movements in the course of the exercises are determined. Such activities are agreed in advance, typically, a month ahead. In the period of exercises and other activities, the Russian side should take all the necessary measures to prevent damage to the receiving country. Special attention is paid to safety measures, in particular, involving the handling of weapons and ammunition. Safety zones are organized when firings and exercises with live ammunition are organized. Representatives of authorized bodies of the receiving country also take part in organizing and securing such zones. In the conduct of operational and combat training activities an important issue is ensuring its own security, protection of military installations on the territory of Russian military bases and units on the move. At present this is the function of the units constituting the military bases in accordance with the procedure adopted in the Armed Forces of the Russian Federation. Outside the Russian military bases such measures are taken by agreement between the command of the Russian military bases and the authorized state body in accordance with the laws of the receiving country. Practice shows that in performing their functions the heads of Russian military bases face some unresolved legal problems. In particular, a clearer regulation is needed of the status of the transport means of the Russian military bases. It would be justified if some categories of transportation means of military bases were under limited jurisdiction of the authorities of the receiving country. For example, the transportation means of the administrative staff of the military base as well as those performing courier services, combat vehicles with special technical means etc., could be protected from coercive actions on the part of the authorities of the receiving country. This is not to say that such transportation means should be granted immunity. But protection of the transport means of a diplomatic mission, for example, against search, requisitioning, arrest or executive actions already

19 The objectives to Russian military bases are directly set by the President of the Russian Federation, the Government and the Command of the Russian Armed Forces. In the course of fulfilment of the tasks of Russian military bases, the command acts by agreement and in cooperation with the Defence Ministry of the receiving country. For example, the re-deployment of military formations within the military base, and their replacement with other units of the Russian Armed Forces and other issues are to be agreed with the Defence Ministry of the receiving country.

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provides legal grounds for dealing with various cases of conflict situations jointly with the command of the Russian military bases. The security of the military bases themselves is not properly regulated, which is cause for alarm because it may hinder the bases in performing their functions. For example, it is unclear how the security provisions for a facility established in the armed forces of the Russian Federation may apply to citizens of the receiving country and other persons intending to commit illegal acts with respect to the military base. The national legislation should provide a legal framework whereby the local population should be given possible and proper guidelines of behaviour with regard to the military base that should comply with the rules of the Russian armed forces applied to ensure the security of the object. In connection with the performance of the said functions the use of weapons outside the territory of the military base is subject to special legal regulation. The agreements with the Republic of Armenia20 establish that the servicemen of the Russian military base while in the course of performing their military service outside its location may in extreme cases be issued weapons with the right to possess, carry and use them (Article 2). For the purposes of this provision an extreme case must mean the right to use weapons. Otherwise, it would be impossible to carry arms in the course of discharging ones military duties, let alone store them because the authorities of the receiving country can always claim that the situation does not qualify to be called an extreme case. On the basis of the above agreement weapons are issued to the personnel by decision of the controlling body of the Russian military base and may legitimately be used for the purposes of: repelling an attack on protected Russian military facilities as well as on the grounds of Russian military units, buildings and structures of Russian military units, Russian military trains, convoys of vehicles and individual vehicles and patrols if it is impossible to protect them by other methods and means; to stop an attempt to violently take possession of the weapons, military equipment and property belonging to the Russian military base; to protect the personnel of the Russian military base or members of their families against attack that threatens their lives and health; to give a signal of alarm or a call of distress. Carrying regulation weapons outside the Russian military bases was only allowed in the performance of military duties connected with ensuring the regime of secrecy as well as to protect and ensure the safety of military units, their property, weapons, ammunition and military equipment, cash and material assets.21 The agreements devote particular attention to determining the procedure of the use of arms outside the territory of the Russian military base. The general rule is that the use of arms by servicemen of a Russian military base who are on guard

20 See Agreement Between the Russian Federation and the Republic of Armenia on the Procedure of the Use of Weapons by the Servicemen of the Russian Military Base Outside the Territory of the Russian Military Base in the Republic of Armenia, 1997. 21 See, for example, the Treaty Between the Russian Federation and the Republic of Georgia on Russian Military Bases on the Territory of the Republic of Georgia, 1995, Article 23.

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performing their combat duties outside the military base is regulated by the Garrison and Guard Service Regulations of the Armed Forces of the Russian Federation. But some special rules may be established under bilateral agreements. Thus, Article 5 of the agreement with Armenia stipulates that arms may be used outside the base in the event of a sudden or armed attack, an attack with the use of combat equipment, vehicles or aircraft. One should stress the discrepancy between the provision of Article 2 of the agreement and the rule set forth in Article 5: the need to use a weapon to counter an attack may arise suddenly, so it can and must be issued each time in the event of performance of military duties, and not in extreme cases. A necessary condition for effective control of Russian military bases and their effective operation is the right to communicate with its own state. A universal rule of international law is that it is the duty of the receiving state to ensure for the foreign institution (a military base is a foreign institution) all the necessary conditions for free communication with its sending state. For instance, the agreement with Georgia stipulated the duty of the host to ensure uninterrupted functioning of its channels of communication used in the interests of the Russian military bases (Article 3). Besides, the Georgian side will meet the requests of the command for rent or replacement of equipment that is out repair (Article 4) and remove any hindrance to the operation of communication means in the interests of Russian military bases (Article 10).22 At the same time, it has to be noted that freedom to use radioelectronic communication means is not unlimited or unconditional. The command of the Russian military bases is obliged to inform the competent bodies of the receiving country about the affiliation and location of its radioelectronic facilities and annually agree with them the list of radioelectronic facilities subject to be registered. To avoid radio jamming and statics and to resolve other issues of communication interaction is organized between duty communications officers of the Russian military bases and the defence ministries of the receiving countries. Radio frequencies may be jointly used by the Russian military bases and the corresponding services of the receiving country and they may exchange corresponding information. An important aspect of the freedom of communication is definition and sealing of the status of mail dispatches. As a rule, mail is exchanged between the command of the Russian military bases and the Russian Defence Ministry and periodicals are delivered by various means through the hubs and stations of courier communications deployed on Russian military bases or facilities. Thus, by agreement with the Georgian side periodical press and mail can be delivered by air, road, rail and water transport of the Russian Federation as well as, if necessary, by transportation means of Georgia with the consent of the corresponding bodies. It should be noted that to exchange mail delivered by the transport means of the

22 See Agreement Between the Government of the Russian Federation and the Government of Georgia on the Procedure of Providing Communication Services to Russian Military Bases on the Territory of Georgia, 1996, Articles 3, 4, 10.

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receiving country (Georgia is the case in hand) exchange centres are organized in a number agreed between the executive bodies of both states. Forms of covering documents, authorizations to effect exchange and samples of seals (stamps) are determined. The mail dispatched from military bases is covered by immunity. Article 8 of the agreement with Georgia on the provision of communications for military facilities stresses that the secret mail of Russian military bases is not subject to be opened when crossing the state border of Georgia or when being moved over the territory of Georgia. We know from diplomatic law that diplomatic mail is not subject to be opened or detained either in the receiving state (section 3, Article 27) or on the territory of third countries (section 3, Article 40).23 The concept not subject to inspection is broader than not subject to be opened because inspection can be carried out without opening a letter, for example by X-ray. It can thus be said that the status of the secret mail of the Russian military bases is practically equal to that of diplomatic mail. It should be noted that in this case the restrictions regarding inviolability of mail when improperly used has also to be recognized as legitimate.24 But in some cases it can be maintained that the status of special (secret) mail of military bases is even somewhat broader than the status of diplomatic mail. Under diplomatic law, a vehicle (a van) cannot be declared to be diplomatic mail. At the same time, under the agreement with Georgia means of transport carrying special mail, periodicals, other mailed objects which have passes of a proper form are not subject to inspection (Article 8). The form of passes in such cases is determined by the Russian side and the authorized Georgian agency. This case allows of loose interpretation of the rule, something that cannot be denied from the objective point of view. Other mail dispatches are inspected in accordance with applicable legislation of the receiving country. The most reliable means of delivering materials and correspondence is sending them by courier. Interstate relations in this area envisage that military mail is carried across the state border by special couriers in closed and sealed envelopes or bags with a register carrying official seals. Servicemen carrying mail, in addition to the documents authorizing them to cross the state border, must have documents authorizing them to carry mail. If the servicemen have weapons they must be entered in their ID or their official travel warrant.25

23 See Vienna Convention on Diplomatic Relations of 1961, Current International Law, Moscow Independent International Law Institute, Moscow, 1996, pp. 510-528. 24 See Yu.G. Dyomin, op. cit., p. 72 25 See Agreement Between the Government of the Russian Federation and the Government of the Republic of Georgia on the Procedure of Passage of Military Trains of the Military Units of the Russian Federation, Persons Who are on Their Tables of Organization, the Military Equipment, Individual Units and Commands, on the Procedure of Transportation and Transit of Other Military Cargoes Across the State Border of the Republic of Georgia and on the Procedure and Terms of Granting Customs and Tax Exemptions, 1993, Article 3.

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Obviously, the inviolability of mail and correspondence depends to a large extent on the status of the courier. But neither the above-mentioned agreements nor any other documents succeed in completely clarifying the functions, rights and duties of the persons accompanying military mail or whether they enjoy any immunities or privileges. Another sphere of legal regulation is the internal activities of the military base. Their logistical support and the provision of vending and welfare services is the joint responsibility of the government of the receiving country and the Russian side who share the financing in amounts and of a range agreed by the parties. In this connection, the command of military bases works together with the corresponding state bodies, enters into agreements with legal and natural persons of the receiving country on trade and welfare services for military installations, the supply of convenience goods and foodstuffs. In considering the status of military facilities (bases) of the Russian Federation on the territory of foreign states one must bear in mind the specific legal status of the persons on the base. Under existing agreements the persons forming part of the Russian military bases include: a) servicemen of the Russian Federation who man the Russian military bases; b) the civilian personnel, citizens of the Russian Federation working at Russian military bases; c) persons seconded by the Russian side to the Russian military bases; d) members of the families, spouses, children and close relatives living together with the persons who are members of Russian military bases or dependents thereof. Practice shows, however, that this classification is hardly ever taken into account in establishing the jurisdiction of the receiving state with respect to each of the groups identified. The general rule is that cases on crimes and other offences committed on the territory of the receiving state by persons who are members of a Russian military base and members of their families, are covered by the legislation and handled by the competent bodies of the receiving state.26 At the same time, practically all agreements limit the jurisdiction of the receiving state depending on the place where unlawful actions have been committed and the target of the crime. For example, under an agreement with Armenia the jurisdiction of the receiving party does not cover offences and crimes committed by persons who are members of the Russian military base contingent or members of their families on the territory of the Russian military base; or offences and crimes committed against the Russian Federation or persons who are on the staff of the Russian military base and members of their families; as well as on cases of military crimes.27

26 The competent bodies of the Russian Federation authorized to handle cases of crimes committed by persons who are with military units include: courts, prosecutors offices as well as the bodies of the Federal Security Service created to cater for the military units as well as the military commandants and commanders of military units (as inquiry bodies). 27 See Agreement Between the Russian Federation and the Republic of Armenia on the Issues of Jurisdiction and Mutual Legal Assistance in Cases Connected with the Presence of the Russian Military Base on the Territory of the Republic of Armenia, 1997, Article 4.

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To bring full clarity to the issue of the jurisdiction of the receiving country over servicemen of the Russian military base one should note one more provision of the above agreement with Armenia: If a group of persons is accused of committing one or several crimes, if the case with respect to at least one of the accused is within the jurisdiction of the Republic of Armenia, the cases with respect to the persons serving with the Russian military base and members of their families are treated separately and transferred to the Russian side by agreement with the competent bodies of the parties (Article 6). It will readily be seen that the position of the persons who are with the Russian military bases, in fact, implies their full (absolute) immunity to the jurisdiction of the receiving state. At the same time, the final part of the article quoted above (transferred to the Russian side) must be construed to mean that the people who serve on the Russian military base and who have committed offences against the receiving country are not immune to prosecution under the laws of the Russian Federation. And in this case, one should bear in mind not only the possibility of one state transferring jurisdiction to the other with respect to this or that offence, but the possibility of change of jurisdiction in cases when one and the same offence comes under different jurisdictions in these countries. One should note, however, that not all the countries where Russian military bases are located provide such a range of immunities for their staffs. For example, under the agreement with Georgia the persons serving with the Russian military bases enjoy relative immunity. They may be arrested on the location of the military unit by the authorized bodies of the Russian Federation on the basis of a ruling by competent bodies of the Georgian side. Besides, cases involving accusations of such a person of several crimes are within the jurisdiction of the Republic of Georgia if at least one of them comes under the jurisdiction of the Georgian side. The same is true of charges against a group of persons if at least one of the accused is covered by the jurisdiction of the Republic of Georgia.28 Under the agreement with Georgia (Article 10) persons who are members of the personnel of military bases enjoy immunity from the jurisdiction of the receiving country in two cases: a) with regard to actions on the location of the military base or in the course of performing their duties; b) with respect to actions committed against the Russian Federation or against persons who are on the staff of the military formations of the Russian Federation as well as on war crimes. The legislation of the Russian Federation is applied to and its competent bodies deal with the crimes of this kind as well as crimes committed on the grounds of Russian military bases by unidentified persons.29 28 See Agreement Between the Government of the Russian Federation and the Government of the Republic of Georgia on Issues of Jurisdiction and Mutual Legal Assistance in Cases Related to the Temporary Presence of Military Formations of the Russian Federation on the Territory of the Republic of Georgia, 1993, Article 13, 14. 29 Other approaches are known to have been used in the practice of legal regulation of the status of military bases abroad, including the delimitation of jurisdiction. For example, under the agreement

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The agreements also envisage the procedure of exercise of jurisdiction. For instance, if procedural, operational, detective, investigatory or other actions need to be carried out on the location of the Russian military base with respect to the cases covered by the jurisdiction of the receiving country, such actions may be performed by its competent bodies jointly with the competent bodies of the Russian Federation or by the competent bodies of the Russian Federation at the written request of the competent bodies of the receiving country if such actions do not contradict the laws of the Russian Federation. If such actions are to be carried out with respect to cases covered by the jurisdiction of the Russian Federation outside the territory of the Russian military base, they are carried out by the competent bodies of the receiving country at the written request of the Russian side if such actions do not contradict the laws of the receiving country. Russian representatives, by agreement with the local authorities, may take part in such actions. In the process of the functioning of military bases the competent bodies of the Russian Federation and the receiving country render legal assistance to each other on criminal cases, cases of administrative offences and civil cases on a reciprocal basis under existing agreements and the Minsk Convention on Legal Assistance and Legal Relations over Civil Family and Criminal Cases of 1993. The legal status of servicemen in the period of service on the territory of a foreign state and members of their families is certified as a rule by a residence permit. Under existing agreements persons serving with Russian military bases and members of their families enjoy the full range of civil, social-economic and personal rights and freedoms in accordance with international law and the current legislation of the receiving country on a par with its own citizens. By agreement with Ukraine, for example, the members of military formations and members of their families enjoy equal rights with the citizens of Ukraine to study at general education establishments, at elementary, secondary and vocational higher schools, to be with pre-school childcare centres as well as to the protection of their health and other social services.30 Typically, persons on the staff of the Russian military bases and members of their families can move freely in their transport means over the territory of the receiving country with the exception of restricted areas. The persons who are members of the military formations and members of their families, including those who travel outside the receiving country, retain their right to own their property in accordance with applicable legislation, and

between the US and Great Britain of 1941 on the lease of territory on the Bermuda and Bahama islands, Antigua and Santa Lucia, the United States jurisdiction also covered local citizens who committed offences against the military bases and had the right to punish them and to demand their extradition to the US authorities. 30 See Agreement Between the Russian Federation and Ukraine on the Status and Terms of the Presence of the Black Sea Fleet of the Russian Federation on the Territory of Ukraine, 1997, Article 22, SZRF 31, 1999, Article 3991.

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they can transfer the proceeds from the sale of such property to their accounts and assets with the banking institutions of the Russian Federation. Servicemen with military formations are provided with housing in restricted and special military camps on vacated housing space as well as on housing space leased by the command of military units in accordance with the housing legislation of the receiving country. The legal status of military bases of the Russian Federation on the territory of foreign states envisages, inter alia, the procedure of resolving the disputes arising over the interpretation or application of corresponding agreements. To this end, joint commissions are set up to which the parties appoint their representatives. The joint commissions act under their own regulations and hold their meetings usually as the need arises. If the commission is unable to resolve the issue before it, it should be settled through diplomatic channels. The above review of the issues of the status of Russian military facilities abroad and their staff in the context of general problems of interstate cooperation within the CIS suggests the following conclusion. The legal regulation of the issues of Russian military presence in the CIS countries is a step in developing a more effective mechanism of maintaining stability in the region, assisting national armed forces in increasing their defence capability and ensuring the national interests of the Commonwealth states. But to achieve practical results in this field of cooperation that benefit and not damage the interests of Russia will require much political will, and a substantial theoretical and lawmaking effort.

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THE LEGAL REGIME OF OUTER SPACE AS A MAJOR ELEMENT OF MAINTAINING INTERNATIOANL PEACE AND SECURITY*

O.V. Zotova** Yu. M. Kolosov*** It is generally recognized that international security has several dimensions: the military and political, economic, ecological, humanitarian and so on. It is believed important to also note such aspect of ensuring international peace and security, as territorial, or spatial. The goals of ensuring general and equal security for all cannot be achieved without inclusion into that sphere of international relations, of sea expanses, air space over the open sea and outer space. As is pointed out in resolution of the UN General Assembly 55/32 of 20 November 2000, all states are obliged to observe the provisions of the United Nations Charter, regarding the use or threat of use of force, in their international relations, including in their space activities. Being one of the basic principles of international law, the principle of the non-use of force or threat of use of force is equally applicable to any sphere of international activities of states, to all fields of their relationships. This is also true in regard to space activities, which, according to the Outer Space Treaty of 1967, must be carried out in accordance with international law, including the Charter of the United Nations, in the interests of maintaining international peace and security and promoting international cooperation and understanding. The UN General Assembly in resolution 55/32 of 20 November 2000 calls upon all states, in particular on those, with major space capabilities, to contribute actively to the objective of the peaceful use of outer space and of the prevention of an arms race in outer space and to refrain from actions contrary to that objective and the relevant existing treaties, in the interests of maintaining international peace and security and promoting international cooperation.

* Address at the international conference Outer Space Without Arms Arena of Peaceful Cooperation in the XXIst c., Moscow, 11-14 April 2000. ** Oksana V. Zotova student of the IL Faculty MGIMO (U) of the Ministry of Foreign Affairs of Russia. *** Yury M. Kolosov PhD Law, Professor, Head of the Department of International Law, MGIMO (U), MFA of Russia.

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There is a close connection between the non-use of military force in international relations and disarmament. Therefore the main direction of the prevention of the use of military force in outer space and from outer space is the prevention of its miniaturization, a ban on the stationing of any types of weapons in it. Today, the legal regime of outer space and celestial bodies is regulated by a series of resolutions of the UN GA (resolution 1962 (XVIII) is of special significance, unanimously announcing the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space), by the Treaty On Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies of 1967 (the Outer Space Treaty), as well as by the 1979 Agreement On the Activities of States on the Moon and Celestial Bodies (The Agreement on the Moon). The main elements of this regime are: outer space and celestial bodies are free for exploration and use by all states on a non-discriminatory basis in accordance with international law, given a free access to all areas of celestial bodies; they are free for scientific investigation; outer space and celestial bodies are recognized as territories of common use res communis; outer space is a partially demilitarized zone due to the fact that states undertook not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The doctrinal interpretation of this provision rules out from this ban a sub-orbital flight, i.e. not making at least one spiral around the Earth, a flight via outer space of objects with nuclear weapons on board, i.e. strategic intercontinental ballistic missiles, as well as the stationing in outer space of objects with conventional arms on board. The 1967 Treaty on Outer Space established a different regime in regard to outer space proper and celestial bodies. Article IV of the Treaty stipulates that the Moon and other celestial bodies are used exclusively for peaceful purposes. In other words, the current international law fully excludes the military use of celestial bodies and does not ban the military use of outer space proper. However, also the use of outer space must correspond to international law, including the UN Charter. The 1967 Treaty on Outer Space, which fixed the obligation of the participating states to use the Moon and other celestial bodies exclusively for peaceful purposes, listed all types of activities, which are banned on the Moon, to wit to establish military bases, installations and fortifications, testing any types of weapons and the conduct of military maneuvers. Obviously, this list is not exhaustive. The efforts, which are called on to lead to full demilitarization and neutralization of outer space, must be supported by understanding on the prevention of arms race in outer space. The achievement of that goal was facilitated by the adoption of universal treaties banning separate types of military uses of outer space, and also a number of multilateral international agreements for the implementation

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of partial measures in the field of disarmament, which also spread on outer space. The 1972 Treaty between the USSR and the USA On the Limitation of the ABM Systems and the 1974 Protocol to it are a serious contribution toward achieving that goal. It is namely for this reason that the UN GA Resolution of 20 November 2000 underlines the paramount importance of strict compliance with existing agreements an arms limitation and disarmament agreements relative to outer space, including bilateral agreements, and also the existing legal regime concerning the use of outer space. At the same time, it is also pointed out that the legal regime applicable today to outer space, does not guarantee by itself the prevention of the arms race in that medium. Consequently, it is necessary to strengthen and enhance this regime and increase its effectiveness. An important measure on the limitation of military uses of outer space is envisaged by the Moscow Treaty signed in 1963 on Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, initiated by the USSR. Article 1 of the Treaty contains the obligations of the participating states to ban, to prevent and not to carry out any explosion tests of nuclear weapons and any other nuclear explosions in any place under its jurisdiction or control: in the atmosphere, beyond its limits, including outer space; under water, including territorial waters and open sea The provisions of that treaty have been widely recognized norms of international law. A serious step on the way of limiting the military use of outer space was the conclusion in 1977 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which have broad, long- term or serious aftermaths as the methods of destruction, infliction of damages or causing harm to any other participating state. The Convention also comprises outer space into the notion of natural environment. And all the same there are no legal guarantees for the prevention of using outer space for military purposes. It is believed that today it is necessary to listen to the call of the UN General Assembly and take the necessary measures aimed at the establishment of such a regime of outer space, which would resolve that task. In compliance with the Resolution of the UN GA of 20 November 2000, the need is underlined for further measures envisaging appropriate and effective provisions for verification to prevent an arms race in outer space, it is deemed useful to recall the draft Treaty on banning the use of force in outer space and from outer space in regard to the Earth submitted by the USSR to the UN in 1983. This draft envisaged, in particular, the assumption of obligations by the participating states not to test, not to deploy by way of launching into the orbit around the Earth, the stationing on celestial bodies or in any other way any space based weapon for hitting objects on the Earth, in the air and outer space, not to use space objects, situated on the orbits around the Earth, on celestial bodies or stationed in outer space in any other way, as a means of hitting any targets on the Earth, in the air and outer space. The

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draft also included the obligation not to test and not to create new anti-satellite systems and liquidate the already existing such systems, not to test and not to use any military manned spaceships, including those for anti-satellite purposes. The conclusion of such a treaty would remove a serious threat to international peace and security.

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TO THE ISSUE OF GUARANTEES OF TURKMENISTANS PERMANENT NEUTRALITY

A.V. Kondakov* On 27 December 1995 Turkmenistan established its status of permanent neutrality, having adopted the relevant constitutional law. In conformity with this law the state voluntarily declares its permanent neutrality and will be maintaining it and consistently implement it into practice. At the same time, changes and additions were made in the Constitution, stipulating this status: Turkmenistan on the basis of law possesses the status of permanent neutrality... Recognized by the world community the permanent neutrality of Turkmenistan is the basis of its domestic and foreign policy. Earlier, on 12 December of the same year, the UN General Assembly adopted Resolution No. 50/80 Permanent Neutrality of Turkmenistan, in which greeting the legislative consolidation of Turkmenistans status of permanent neutrality, 1) recognizes and supports the declared status of permanent neutrality and 2) calls on all UN member-states to respect and support this status of the Republic, also respecting independence, sovereignty and territorial integrity. The provisions of that resolution are interpreted by official Ashkhabad and some lawyers as a certain special guarantee by the world community (the United Nations Organization) of the status of permanent neutrality of the country. It is asserted, in particular that the guarantees of international community consist in observing by all UN members of their commitments in regard to Turkmenistan. Proceeding from this, an important circumstance stems from it that such status cannot be modified or cancelled unilaterally, without consent to this of all UN members.1 Thus, the author sees the guarantee in the obligation and provisions of the resolution of the UN General Assembly for all states, which adopted it, and the impossibility on this basis to cancel the status of permanent neutrality. Obviously, it is believed that the resolution is a kind of a treaty between Turkmenistan, on the one hand, and the United Nations in the person of its members, on the other. The issue, as it seems, consists in the following: what should be understood in this case under guarantees? In what do they concretely consist?

* Alexandre V. Kondakov Researcher at the Department of International Law of the MGIMO(U) of the Ministry of Foreign Affairs of Russia. 1 Klepbanov E. A. The status of Turkmenistan as a permanently neutral state, the Moscow Journal of International Law No. 4, 1998.

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To answer this it is necessary to analyse the content of the notion guarantee and its applicability to this case. It is also purposeful to examine the previous practice of recognition and guaranteeing the status of permanent neutrality in order to compare it with the case of Turkmenistan and give the answer whether Turkmenians neutrality is guaranteed. The Notion of Guarantee in International Law The institute of guarantee in international law came into being a long time ago. Already in the 18th century the French lawyer, E. de Vattelle devoted to the guarantee treaties a sufficiently detailed exposition. Later on this notion was thoroughly considered in the works of other jurists. It is not our task to review all works on these problems this goes beyond the framework of this article, the more so that the notion itself is polysemantic. The most general analysis of the meaning of guaranteeing international law was given, in our view, in the article by I. S. Peretersky The Notion of Guarantee in International law, from which we will proceed further. Thus, there are various types of guarantees, many of which have nothing to do with the international and legal status of Turkmenistan (for example, a guarantee as a voucher in its usual sense, that is, the establishment of the responsibility of the guarantor for somebody elses debt, a guarantee as a transfer to the state creditor for a certain period of time of the territory or any other objects and so on). In the present article we are interested in the meaning of the notion of the international and legal guarantee which is considered by the majority of both Russian and foreign lawyers as the main thing the obligation of the state, on the one hand, to establish and (or) to support a certain position (the international and legal status) and the obligation of other state (group of states) to assist the first state in its maintenance against the possible encroachment of third countries.2 Other lawyers also hold the same opinion.3 The meaningful content of the notion guarantee applicable to the status of permanent neutrality consists in that that the state-guarantor undertakes not to violate this neutrality, not to encroach on the integrity and immunity of the territory of the permanently neutral state and so on. The peculiarity of the obligation of the guarantor consists in that that he must not only respect and not violate the status of a permanently neutral state, but also recognize the permanent neutrality of this state. This duty constitutes the essence of guarantee4 . It is necessary to specify that in this sense the obligation is passive, that is, the guarantor undertakes to safeguard the above status from the encroachment of third state. Such guarantee

2 Peretersky I. S. The notion of guarantee in international law // Sovetskoye gosudarstvo i pravo, No. 9, 1956. 3 See, for example: Ganyushkin B. V. International guarantee of permanent neutrality // Questions of theory and practice of international law. M., 1959; Modzhoryan L. A. Permanent neutrality of the state and international law // Sovetskoye gosudarstvo i pravo, 1955, No. 7; Durdenevsky V. N. Neutrality in the system of collective security // Sovetskoye gosudarstvo i pravo, 1956, No. 8, etc. 4 Ganyushkin B. V. Quoted from his works.

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is, for example, the treaty of 20 November 1815, in which Russia, Austria, Prussia, Great Britain, Portugal and France solemnly recognized Switzerlands permanent neutrality and gave pledges of its purposefulness and immunity. As it follows from such treaty, in the event of the emergence of the threat of violation of permanent neutrality or threat of attack at a permanently neutral state the guarantors must take measures to prevent such breach or attack. An example of this is again Switzerland in 1856 when the country was threatened with an attack from Prussia, the interference of the guarantors resulted in a peaceful settlement of the conflict.5 In the event of an attack at the permanently neutral state the guarantors must render assistance to it. Depending on whether the guarantors must come out all together or the obligation of each guarantor does not influence the position of other is distinguished individually (personally) or by a collective guarantee. An example of an individual guarantee is the above treaty of great powers with Switzerland and the treaty concluded in 1831 on the guarantee of permanent neutrality of Belgium. In the event of collective guarantee each of the guarantors was obliged to come out in defence of permanent neutrality only when all guarantors were coming in favour of this. An example of such a guarantee can be given on the basis of the treaty with Luxembourg of 11 May 1867. The permanent neutrality of that country was guaranteed collectively by Austria, Britain, Prussia, Russia, France and Belgium. According to such treaties, the permanently neutral state on its part also bears commitments before guarantors. They consist, first of all, in maintaining the established status with the consequences stemming for the country. Firstly, in carrying out the policy of permanent neutrality, expressed, in particular, in the refusal from participation in military blocs and alliances, and, secondly, in that that a state cannot unilaterally refuse from the established status without consent of other parties of the treaty for this. Earlier we spoke about the international treaty which is a broadly existing form of international guarantees. The peculiarity of the treaty on permanent neutrality is the fact that it is open ended, it is concluded for all times, and not for a period of one or several wars. If the permanent neutrality is broken by an aggressor, then this doesnt mean that the treaty on neutrality ceases to be valid. But it is often the case that after a radical change of the international situation the question would arise regarding the cancellation of the permanent neutrality of the state. That was the case with Belgium and Luxembourg after the First World War. However, in resolving this issue on the cancellation of the agreement on permanent neutrality, it is necessary to have a clear accord to this of all participants of the agreement, and this viewpoint is generally recognized6 . The permanently neutral state itself can unilaterally declare the continuation of the policy of permanent neutrality after the cancellation of the treaty on permanent neutrality.

5 Modzhoryan L. A. Quoted from his works. 6 See the works of the authors mentioned earlier.

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If the treaty on permanent neutrality was not cancelled, then its provisions are compulsory for all the participants of the agreement. It is inadmissible to have a refusal of one of the participants of a multilateral agreement on the permanent neutrality from his commitments. Thus, the establishment of permanent neutrality of the state by way of conclusion of an international treaty creates reciprocal rights and commitments of the participants in the agreement. Third states must not breach the status of such a state. An important moment for the understanding of the treaty registration of the status of permanent neutrality is the issue about the object of the treaty. On this score, there are two viewpoints. Certain lawyers say that, as in the case with Switzerland, guarantees are made only in regard to territorial inviolability. Thus, B.E. Nolde believes that a guarantee of permanent neutrality is practically the same as the guarantee of territorial inviolability.7 The reasons for such statements are understandable in the nineteenth century in the period of continuing wars, the defense from the external threat was the main task of the permanently neutral states, the more so that they did not belong to the great. An effective instrument for its solution, as is shown by Switzerlands example, was permanent neutrality. However, permanent neutrality can be broken not only by way of aggression of a third state, but also by other actions, for example, by the involvement of a permanently neutral state in the military alliance that is obviously inadmissible either by status of permanent neutrality or by the treaty on its guarantees. In case of such an approach the second part of the notion guarantee is also overlooked the obligation of permanently neutral state to maintain its status. It is possible, for example, to have the following situation the permanently neutral state itself pursues a policy incompatible with its status. Consequently, as was justly remarked by B. V. Ganyushkin, the object of the treaty on the guarantee of permanent neutrality is namely permanent neutrality of the state to which the guarantees have been given.8 Another method of establishing permanent neutrality is the adoption by a state of a law on permanent neutrality with a subsequent recognition of it on the part of other states. In this case, there is only a unilateral willingness of a state not to participate in wars, and in the times of peace to pursue the policy which prevents it from being involved in a war. It is known that certain states over a period of long time did not participate in wars and did not enter military alliances in peacetime, even without passing a law on permanent neutrality. Sweden is one of such states at the present time. Austria refers to the states which have adopted laws on permanent neutrality. Many lawyers reject the possibility of establishing neutrality in this way, because, according to them, the states in that case are unable to achieve the respect for their status. Thus, one of the arguments in favour of this viewpoint was the assertion

7 Nolde B. E. Permanently Neutral State. St. Petersburg, 1901, p. 69. 8 Ganyushkin B. V. Quoted from his works, p. 37.

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that neutrality registered unilaterally is a voluntarily adopted policy which is only of moral value.9 As is known, the adoption of laws, including laws on permanent neutrality, constitutes exclusively the competence of a state. But a question arises on the legal force of the law on the permanent neutrality for other states. The unilateral intention of the states to be permanently neutral by itself does not create the relevant obligations on the part of other states. Such internal declarations of intention give rise to the obligations only for the state which adopted it. For other states it has no binding force up to the moment when it is recognized by them. The states advocating permanent neutrality established unilaterally, undertake in this way to respect it, that is, not to involve such a state into military blocs, and in the time of war to observe in regard to it the commitments envisaged by international agreements on neutrality in time of war (however, it is necessary to make a reservation that unlike the treaty on the guarantee of permanent neutrality, such a statement can be recalled at any time). During the time of war the situation of a permanently neutral state, which declared its status unilaterally, practically differs from the situation of a state, which declared its neutrality in a specific war. The warring sides are obliged to respect such neutrality irrespective of the fact in what way it was registered: by way of declaration of neutrality or by a law on permanent neutrality. This case is more complicated namely in peaceful time when other states do not have legal commitments to respect this neutrality: if it is not recognized and not guaranteed. However, the recognition and guarantee of permanent neutrality are not a condition of its existence. States which established neutrality unilaterally may carry out it without recognition or guarantee on the part of other states. The present-day practice shows that states, which adopted laws on permanent neutrality, strive to register or preliminarily register their status also by way of signing an international treaty (example Austria; see below). As it was already pointed out, the permanent neutrality of a state irrespective of the fact, how it was registered, needs recognition and guarantee on the part of other states. Presently it is necessary to name several methods of recognition of permanent neutrality. Firstly, the most popular one is recognition of permanent neutrality silently or with the help of unilateral declaration. In this way many states recognized the permanent neutrality of Switzerland, Austria. For example, Rumania in a special statement recognized Austrias permanent neutrality in December of 1955. Secondly, the permanent neutrality of a state can be recognized with the help of concluding an international treaty between the interested parties. The recognition of neutrality can be contained either in a treaty on the establishment of a permanently neutral status of any state or in a special agreement on the recognition of permanent neutrality signed at a conference specially convened for this purpose. The recognition of permanent neutrality of Switzerland, Belgium and Luxembourg are an example of the first case.

9 Tiunov O. I. Neutrality in International Law. Perm, 1968, p. 44.

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Thirdly, at the preliminary talks between the interested states an understanding can be reached on the recognition of the status of permanent neutrality, if a given state accepts it in the future. For example, during the talks in April of 1955 in Moscow between the governmental delegations of the USSR and Austria on the issue of conclusion of the Austrian State Treaty an understanding was reached to the effect that Austria will establish a status of permanent neutrality, taking into account the statement of the USSR on its recognition. At the conference of foreign ministers of four powers in Vienna on 14 May 1955 representatives of Western powers supported Austrias intention to abide by permanent neutrality. It was established that Austria will submit to the meeting a draft declaration on neutrality, and the USSR a draft statement of four powers on the respect of its status. After the Austrian parliament on 26 October 1955 passed a law on permanent neutrality, the four powers the USSR, the United States, Britain and France were the first to recognize the permanently neutral status of that state. Fourthly, the recognition of permanent neutrality of a state can be the fact of using its services in a number of UN actions. The Permanent Neutrality of Turkmenistan The order of establishing the status of permanent neutrality of Turkmenistan in general is similar to the Austrian status. It was established by an internal law and recognized by a UN resolution. The latter document, however, does not have mandatory legal force; consequently, it is not a matter of a treaty between Turkmenia and the United Nations in the person of its members. Hence there is an important circumstance that UN members are not obliged not to violate the status of permanent neutrality of the country (if only such a violation does not create a threat to international peace and security) and, moreover, there are no commitments to defend such a status by them, to force third countries to recognize the permanent neutrality of Turkmenia. Item 2 of the resolution in this respect is very vivid as the General Assembly calls on UN member-states to respect and support the status of the Republic, that is, it is a matter of exclusively recommending on the part of the Organization, and not more than that. To make use of that resolution if left to the discretion of the states themselves. Thus, the answer to the question on the guarantees of Turkmenistans permanent neutrality, as it seems, is obvious: guarantees are given in the sense in which they exist as applicable to Switzerland, do not exist. To respect the status of permanent neutrality of Turkmenistan, to support it or not is the decision of the states in each particular case. The more so there are no grounds to assert that there is a mutual commitment of Turkmenistan and the United Nations on this issue. The first one has the right to cancel the status established by it at any time without the preliminary consent of the UN members, which is the sovereign right of every state to establish its internal laws.

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True, statements are made that a guarantee of Turkmenistans permanent neutrality exists in the sense of item 1 of Article 1 of the UN Charter and it consists in the following. As, according to the above provision, the main task of the Organization is to maintain international peace and security and with this goal to take effective collective measures for the prevention of threat to peace and suppression of acts of aggression or other breaches of peace,10 and the status of permanent neutrality undoubtedly contributes to the achievement of that goal then consequently, this item is a kind of a guarantee from the encroachments on this status of the state. The resolution confirms the provision of the Charter. It should be said in this connection that such evidence is not irrefutable. The violation of the status of permanent neutrality does not necessarily cause threats to peace and security, it is not an obligatory condition. By the way, in this case the guarantee is valid only in the time of conflict, and its peaceful component remains outside the brackets. The main issue, obviously, consists in that that is actually guaranteed: Turkmenistans permanent neutrality or its territorial integrity and inviolability which logically stems from the membership of the Republic in the United Nations. The answer is in the resolution itself. Item 22 reads: ...respecting also independence, sovereignty and territorial integrity. Consequently, according to B. E. Nolde, in this case the guarantee of permanent neutrality is practically the same that the guarantee of territorial inviolability.11 It also stems not from the resolution of the UN General Assembly, but, firstly, from Article 2 of the UN Charter, establishing general principles of international law, secondly, from the Declaration on the principles of international law concerning friendly relations and cooperation between states in accordance with the UN Charter of 24 October 1970, and thirdly, from the provisions of the Final Act of the Organization on Security and Cooperation in Europe of 1975.12 Considerations given earlier do not belittle in any way the importance of permanent neutrality of Turkmenistan as for the country itself and for the establishment and maintenance of peace and security in the region. The stable political and successful economic development of Switzerland, Austria and other permanently neutral states demonstrate the important role that status plays for the country which has adopted it. It is also important from the viewpoint of stabilization of the situation in the region as a whole. The issue is only whether Turkmenistan can preserve it in the middle- and long-term perspective, whether the policy of permanent neutrality answers the goals of Turkmenistans state, or the declaration of this status is only a next political move serving for the realization of the immediate tasks. The question also consists in that to what extent the existing system of the organs of state power of the Republic, its political regime are able to ensure the

10 The existing international law// Compiled by Yu. M. Kolosov, E. S. Krivchikova. Vol. 1, M., 1996, p. 8. 11 Nolde B. E. Quoted from his works. 12 Vedomosti of the Supreme Soviet of the USSR. 1975. No. 33. Attachment.

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preservation of permanent neutrality of the country, and, in particular, the commitments stemming from it. In the event if this is attainable, the benefits will be not only for Turkmenistan, but also for other countries of the region. Possibly, the example of Turkmenistan will help other states former republics of the USSR to be permanently neutral, the more so that certain shifts in that direction are already available.

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REPRESENTATIVE OF LAW ENFORCEMENT AGENCY OF A FOREIGN COUNTRY PARTY TO THE RUSSIAN CRIMINAL PROCEEDINGS P.N. Biryukov* Various aspects of the legal status of persons taking part in criminal proceedings were examined in detail in the science of criminal procedures.1 The subjects of the studies included the notion of a participant in criminal proceedings, his functions in them, and classification of parties to the legal process, their rights and obligations, as well as many other problems of criminal procedural activities. However, the problem of the status of representatives of foreign law enforcement agencies in Russian criminal proceedings remained outside the sphere of the attention of specialists. This can be explained, firstly, by lack of corresponding provisions in the Criminal Procedure Code of the Russian Federation and the traditionally closed character of Russian legal institutions. Meanwhile, provisions concerning the possible participation of staff members of foreign legal institutions in criminal proceedings are recorded in many international treaties of the Russian Federation. These treaties provide for at least three forms of such participation. 1. Participation of staff members of foreign legal institutions in the capacity of witnesses and experts. This action, in the form of legal assistance, is not regulated in any special way by the Criminal Procedure Code, which is currently in effect; the legal status of staff members of foreign legal institutions is determined by general provisions of the Criminal Procedure Code on the status of witnesses and experts. At the same time, there are some characteristic features stemming from norms of the international law. In accordance with the international treaties, to which Russia is a signatory (Article 12 of the 1992 Treaty between the Russian Federation and the Republic of Kyrgyzstan on legal assistance and legal relations pertaining to civil, family and criminal cases; Article 9 of the 1993 Minsk Convention; Article 12 of the 1993 Treaty between the Russian Federation and the Estonian Republic on legal assistance and legal relations pertaining to civil, family and criminal cases, etc.), no witnesses and experts, summonned to the Russian Federation for interrogation or other actions

* Pavel N. Biryukov PhD (Law), Assistant Professor of Voronezh University. 1 See R.D. Rakhunov. Participants in Criminal Proceedings Under Soviet Law. Moscow, 1961; V.N. Shpilev. Parties to Criminal Process. Minsk, 1970; L.D. Kokorev. Parties to Legal Process on Criminal Cases. Voronezh, 1971; A.P. Ryzhakov, A.I. Sergeyev. Parties to Criminal Process. Tula, 1996; N.E. Pavlov. Parties to Criminal Process. Moscow, 1997.

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necessitated by the investigation, done with their participation, can be called to account on the territory of Russia for criminal offences, taken into custody or punished for doings committed before the crossing of the Russian border, irrespective of their citizenship. Neither can they be called to account, taken into custody or punished for their testimony as witnesses or for their expert conclusions on a criminal case under investigation (Artilce 12 of the 1992 Treaty between the Russian Federation and the Lithuanian Republic on legal assistance and legal relations pertaining to civil, family and criminal cases; Article 8 of the 1999 Treaty between the Russian Federation and Mongolia on legal assistance and legal relations pertaining to civil and criminal cases). They shall be stripped of this guarantee, however, if they fail to leave the territory of Russia, though they have a chance to do it, within 15 days after the date, when the interrogating institution informs them, that their presence is no longer needed (Article 12 of the 1992 Treaty between the Russian Federation and the Republic of Azerbaijan on legal assistance and legal relations pertaining to civil, family and criminal cases). The corresponding rules are applicable both to ordinary witnesses and experts, and to people working at foreign legal institutions. Some agreements make it incumbent upon officers of foreign law enforcement agencies to give evidence. Under Article 8 of the 1994 CIS Agreement on cooperation of customs services in fighting illegal trafficking of narcotics and psychotropic substances, as well as Article 8 of the 1992 Agreement between the State Customs Committee of the Russian Federation and the State Customs Department of the Estonian Republic on cooperation in fighting the illegal trafficking of narcotics and psychotropic substances, the other party concerned shall assign its officials to act as witnesses or experts before the courts or authorities of the other country if the latter file an application in connection with a violation the laws and regulations on drug trafficking. Those officials are to give evidence on the facts established by them while discharging their duties. Thus, the specific character of the legal status of witnesses and experts working for foreign law enforcement bodies is determined, first and foremost, by norms of the international law. 2. Participation of staff members of foreign law enforcement bodies in individual proceedings, as a form of legal assistance Some international agreements of the Russian Federation provide for the active participation of officers of foreign law enforcement agencies in individual investigating proceedings, as a form of legal assistance on criminal cases. Under Article 75 of the 1993 Treaty between the Russian Federation and the Latvian Republic on legal assistance and legal relations, Article 75 of the 1993 Treaty between the Russian Federation and the Estonian Republic on legal assistance and legal relations pertaining to civil, family and criminal cases, Article 8 of the 1993 Agreement on legal assistance and cooperation between the Prosecutors Office of the Republic of Armenia and the Russian Prosecutors Office, as well as

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Article 1 of the 1994 Agreement on cooperation of interior ministries of the CIS member countries in the fight against organised crime, representatives of foreign legal institutions are given the right to be present during investigating proceedings in the Russian Federation, and vice versa. Thus, under Article 8 of the 1995 Agreement between the Russian Federation and Turkmenistan on problems of jurisdiction and mutual legal assistance on cases, connected with Russian citizens serving in the Armed Forces of Turkmenistan, the proceedings, involving citizens of Turkmenistan, on cases that are within the jurisdiction of the Russian Federation, are to be effected in the presence of representatives from the corresponding authorities of Turkmenistan. In accordance with Article 61 of the 1999 Treaty between the Russian Federation and Mongolia on legal assistance and legal relations pertaining to civil and criminal cases, and Article 7 of the 2000 Treaty between the Russian Federation and the Republic of Cuba on legal assistance and legal relations pertaining to civil and criminal cases, foreign representatives may be present during the implementation of requests for legal assistance, given the consent of the central bodies of one of the signatories. Article 80 of the 1998 Treaty between the Russian Federation and the Socialist Republic of Vietnam on legal assistance and legal relations pertaining to civil and criminal cases makes this possibility conditional on the legislative permission of the country, to which the request is addressed. Some agreements go even farther in determining the degree of participation in the proceedings. For instance, under Article 7 of the 1998 Treaty between the Russian Federation and the Republic of India on mutual legal assistance on criminal cases, and Article 10 of the 1999 Treaty between the Russian Federation and the United States on mutual legal assistance on criminal cases, persons present during the implementation of the request shall be allowed to directly put questions to the interrogated person, or to formulate the questions that should be put to him, as well as to make word-for-word notes in the legal proceedings process, using technical facilities if need be. Article 10 of the 1999 Treaty between the Russian Federation and the Republic of Korea on mutual legal assistance on criminal cases expands this provision in the following way: if no direct questions are allowed to be put, such persons shall be permitted to indirectly submit their questions, so that they could be put to the person who is giving evidence or providing proofs. Thus, the trend towards legalizing a more active role of foreign investigators, prosecutors and judges in the Russian criminal proceedings is now increasingly gaining ground. 3. Joint execution of individual proceedings The possibility of joint execution of legal proceedings is provided by the treaties that were concluded by the Russian Federation since the mid-90s. For instance, under Article 6 of the 1997 Agreement between the Russian Government and the Government of the Republic of Kazakhstan on the cooperation of law enforcement agencies in maintaining law and order on the territory of the Baikonur

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Complex, if a case falls under Russian jurisdiction, the proceedings or other actions outside the territory of the Baikonur Complex are executed by the law enforcement agencies of the Russian Federation on agreement with the law enforcement bodies of the Republic of Kazakhstan. Under Article 8 of the Agreement, the law enforcement agencies of Russia and Kazakhstan may create joint investigation groups (teams) for investigating individual crimes. In this situation the investigation is done on the basis of the criminal procedures legislation of the country that is handling the given criminal case. An interesting form of joint legal proceedings is envisaged by Article 7 of the 1997 Agreement between the Russian Federation and the Republic of Armenia on problems of jurisdiction and mutual legal assistance on cases, connected with the deployment of Russian military bases on the territory of the Republic of Armenia. It says that if the identity of the person, who had committed the crime, was not established, the law enforcement agencies of the Parties to the Agreement shall jointly determine measures to preserve the traces of the crime in order to identify and arrest the person who had committed it. The trend towards even closer ties between the Russian law enforcement agencies and those of other countries has lately become quite evident. Under Article 12 of the 1999 Treaty on cooperation of the CIS member states in fighting terrorism, the signatories to the Treaty may send representatives of their law enforcement agencies, at the request or with the consent of the Party concerned, including special anti-terrorist units, to render practical assistance. In accordance with Article 2 of the Treaty on the procedure for the stay and cooperation of officers of law enforcement agencies on the territory of CIS member states, dated 1999, officers of law enforcement agencies of the countries signatories to the Treaty may be dispatched to Russia on the basis of corresponding applications and after getting the required permission to carry out their professional tasks and render assistance in search and investigation operations. In this case, the investigation is to be done by officers of Russian law enforcement agencies, in keeping with the Russian legislation and with the international treaties. x x x Thus, the treaties and agreements, concluded by Russia, tend to permit ever more extensive participation of representatives from foreign law enforcement agencies in the conducted criminal proceedings. The large number of areas regulated by international laws proves the importance of the problem and the need to cope with it by legislative means. Officers of the foreign law enforcement agencies, who take part in criminal proceedings, fulfil definite tasks in the process. Specifically, they promote the administration of justice, help to collect and register evidence, etc. Moreover, they take part in the fulfilment of the tasks of other parties to the legal process the investigator, the prosecutor, judges etc. They are vested with rights and obligations stemming from the international law.

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We believe that the view, now existing in the science on criminal procedures, concerning the qualities that a party to a criminal process should possess without fail,2 may be extended to foreign participants. Representatives of foreign legal institutions lack the only quality, which is regarded by Russian science as obligatory for a party to a criminal process, namely, that their rights and obligations are not laid down in the law on criminal procedure. After this deficiency is done away with, there will be no formal grounds for not including those persons in the category of parties to the Russian criminal process. In our opinion, foreign investigators, prosecutors and judges could be included in the category of other persons taking part in legal proceedings. In cases when they only play the role of observers and do not take any active part in the required proceedings (arrest, search, confiscation etc.), the status of those persons is to be similar to that of witnesses at an official search. In other cases their role is more independent. For example, during the interrogation of a witness they have the right to ask him questions with the permission of the interrogating officer. In some cases they may even detain or arrest a suspect. It is obvious, however, that if this deficiency of the Criminal Procedure Code is not done away with, the position of an officer of a foreign law enforcement agency in Russian criminal proceedings will remain shaky and uncertain. An attempt to resolve the problem was made in the draft of the new Criminal Procedure Code of the Russian Federation. Under Part 1 of Article 510 of the draft Code, a witness, a victim, a civil plaintiff, a civil defendant, their representatives and an expert, who are citizens of a foreign country, may be summoned with their consent to take part in the investigation or court proceedings on the territory of the Russian Federation by an official, who is handling the criminal case. The inquiry and court proceedings with the participation of a witness, a victim or other parties to the legal process are effected according to the rules, recorded in this Code, with the following exceptions: taking into custody, fining or institution of criminal proceedings for refusal to give evidence, for giving deliberately false evidence or deliberately false conclusion, which are not permitted (Part 3, Article 510). As we see, the point at issue is just one of the three forms of participation of staff members of foreign legal institutions in the Russian criminal proceedings. The draft Code does not regulate the procedure for the registration of their participation in the legal process. The status of those persons should be formulated in greater detail, so that their rights would be best guaranteed. What is more, I believe that a representative of a foreign law enforcement agency taking part in Russian criminal proceedings should not only have the right to be present at this or that stage of the investigation. All the three forms of the participation of a foreign official in criminal proceedings should be legislatively recorded. The following rights are needed to make the participation in criminal proceedings really effective: the right to give explanations on the meaning of the 2 See N.E. Pavlov, Ibid, p. 7; Criminal Procedure Law. Editor-in-Chief P.A. Lupinskaya, Moscow, 1997, pp. 73-75; Criminal Proceedings. Editor V.P. Bozhyeva. Moscow, 2000, p. 122.

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assignment; the right to familiarize himself with the materials of the case, specifically with the part of the materials dealing with the fulfilment of the assignment; the right to send in applications; the right to put questions to other parties to the legal process; the right to make observations during the proceedings which are to be recorded; the right to see the protocol of corresponding legal proceedings and to sign it; the right to get a copy of the protocol; the right to lodge complaints against the actions taken by the person who fulfils the assignment; to take other actions envisaged by the Criminal Procedure Code and by the international treaties. We could suggest the following obligations of a foreign representative: to report on his part in the legal proceedings; not to disclose information on circumstances affecting the inviolability of private life, or information that falls under the classification of state secrets or other secrets protected by law. In view of all those considerations, we believe it would be expedient to include in the Criminal Procedure Code a provision about a new party to the Russian criminal process. Article ... Representatives of the law enforcement agencies of foreign countries In cases envisaged by an international treaty, signed by the Russian Federation, a representative of a law enforcement agency of a foreign country may be present at legal proceedings. The person in charge of the investigation, the investigating officer or the prosecutor are to pass a resolution, and the court shall adopt a decision to permit a representative of a foreign law enforcement agency to take part in the legal proceedings. A representative of a foreign law enforcement agency shall have the right to be present during this or that stage of the investigation process; to give explanations on the substance of the assignment; to familiarize himself with the materials of the case in the part, which deals with the fulfilment of the assignment; to send in applications; to put questions to witnesses, victims and experts; to make observations during the proceedings, which are to be entered on the record; to see the protocol of this or that legal process; to sign the protocol; to get a copy of the protocol; to lodge complaints against the actions of the person who fulfils the assignment. Moreover, he enjoys all the rights envisaged by this Code and by the international treaties. A representative of a foreign law enforcement agency shall be obliged to report on his part in the legal process, for which an application was made; to make effective use of the rights with which he is vested by this Code and by the international treaties; not to disclose the information he may get on circumstances affecting the inviolability of private life, or information that falls under the classification of state secrets or other secrets, protected by law.

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INTERNATIONAL ECONOMIC LAW: CERTAIN QUESTIONS CONCERNING THEORY AND PRACTICE

V.M. Shumilov* About the branches of International Economic Law. The world community of states has entered the stage of internationalisation (globalisation) of the economic activity of countries and nations. The laws governing the international division of labour make it imperative to intensify interdependence of states and intrastate economic complexes the national economies. The complications and intensification in International Economic Relations (IER) are reflected in legal supra-structure the system of International Economic Law. The links between the systems of international division of labour, international economic relations and international economic law are becoming increasingly more apparent. National economies are linked to each other by a diversity of relationships, within the framework of which, just like in blood-carrying vessels, there is a movement across borders of material and intellectual resources that are seen as important factors for production and development of the economy. What kind of resources are we talking about? They are natural resources (raw materials), semi-finished goods, machinery and equipment, finished goods, technologies, i.e., those that are related to the category of goods and are designated for purchase-sale or exchange. All sorts of services are also related to the category of goods in foreign economic activity. Such services may be related to deliveries by various means of transport, insurance, technical cooperation, capital construction, organization of tourism, banking, managing, consulting services and so on. Such movements by goods form trans-border flows of goods. However, flows of goods are only part of the system of International Economic Relations (IER). The movement of goods is accompanied by an adequate movement of flows of finances. The labor force is also seen as belonging to the category of goods since the migration of manpower is becoming an ever more notable factor in IER. Intellectual resources that move through channels of international economic ties more often take the shape of property and non-property rights, for example, the right to profit from the results of ones own creative work (intellectual property). Within the framework of economic cooperation, material and non-material resources that are not goods but capital (investments) also cross state borders. To

* Vladimir M. Shumilov Head of the Department of Public Law of the Russian Academy of Foreign Trade.

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put it differently, this refers not so much to goods as to capital. Investments are related to facilities and installations under construction, equipment, equities, a part of flows of finances, human capital, intellectual property. In other words, that which is invested into the economy, penetrating the foreign market, getting a foothold in this or that national economy (with the preservation of these or those rights, for example, the right of ownership of an installation or part of it, the right of ownership of shares and stocks, and so on). And last but not least, material and intellectual resources that, from the political economic point view, are not goods since they are not designated for purchase or sale also move in IER. What we are talking about here is economic aid that, as a rule, is provided gratis (or on easy terms). To be sure, there are also more complicated forms of international economic cooperation the construction of major gas pipelines, atomic power stations, scientific-technical cooperation, military-technical cooperation and so on. However, all these complicated forms can be broken down into the movement of the already known components: goods, services, finances, investments, manpower and economic aid. The above-mentioned factors that are in motion in IER system are the object of international legal management, while each of the aforesaid components are the subject of contracts and international treaties, legal relationships stemming from internal law and international law. Strictly speaking, over the IER system there is an appropriate international law regulating system (ILR), its own set of legal means of influence, just as complicated as the relations that it regulates, although not complete sufficient and not completely adequate. In fact, each sphere goods, services, etc., represents a separate, autonomous ILR system in itself. All of them, as they intertwine amongst themselves, form an aggregate of norms and standards that regulate international economic relations. The given aggregate of norms constitutes one of the branches of international public law international economic law. International economic law can be seen as a kind of resource law that regulates trans-border movements of all kinds of resources. From that point of view, for example, such a sphere that is often singled out as a separate branch of international law as law on scientific-technical cooperation, international technological law breaks down into trans-border movement of goods, services, finances, economic aid and labour resources. This implies that international technological law does not exist as a branch of international law. Therefore, bearing in mind the compositional line-up of various IER systems, that are the object of international legal management, it is possible to single out the following branches of international economic law: international trade law, within the framework of which the movements of goods, including the trade of services and rights, are regulated; international financial law, regulating financial flows; international investment law, within the framework of which the movements

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of capital (investments) are regulated; international economic aid law as an aggregate of norms and standards regulating the movements of material and non-material resources that are not goods in the political economic sense; international labour law, within the framework of which the movements of such a factor of production as manpower, labour resources are regulated (perhaps, it would have been more proper to call this subdivision labour resources or migration law). The sources of International Economic Law (IEL) are international treaties, international traditions and decisions of international organizations. However, besides legal means, IER are strongly influenced by political norms, morals, conventional norms, technical norms and standards, religious norms, internal law of international organizations and so on. Norms or standards of so-called soft law occupy a prominent place in the legal regulation of IER; this implies either international legal norms that do not clearly define the rights and obligations of the Parties, or they are, in general, not legal norms (political, moral, etc.). Neither should one overlook such a phenomenon in the international trade system as norms of the grey zone a kind of semi-legal norms system that as a result of multilateral trade talks in the Uruguayan round in GATT (1973-1979) was declared outside the law and was to be terminated after a certain period of years. Formally, the grey zone measures were not within the competence of GATT and were not prohibited by its statutes. First of all, this concerned agreements that envisaged voluntary export restrictions. It should be recalled that norms of IEL, just as norms of international law in general, are classified according to different criteria, for instance, into universal, regional and particular norms; imperative, dispositive, recommendatory with a very uneven quantitative interrelationship of all these groups of norms within this or that subsystem of IER, and this or that goods sector. Consequently, we have to deal with an evermore complicated, multi-layer mobile structure of IEL. This structure undergoes tremendous changes, finally acquiring the contours of integral system, whose tendencies of development proceed perhaps even beyond the 21st century. It is a reflection in the Law of a real movement in world economy towards forming a singular planetary market of goods, services and capital. About the transnational law. International Economic Relations (in the broad sense of this concept) have, as we all know, two levels of relationships depending on the presence of public and private elements: Relationships between subjects of international law, to which, in the main, states and international organizations are related; it is precisely these relations within the sphere of IER that are regulated by international economic law; Relationships between subjects engaged in economic activity, physical and legal persons of different countries; such relations are regulated by the internal law of each state, private international law. However, the framework of private

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economic ties and their legal regime are nonetheless determined, in one way or another, by international public law. To this, it should be added that in IER it is possible to make out a tendency whereby an ever greater number of questions are passing from the exclusive regulation of internal law to regulation with the participation of international law, or in the main, by international law. What we are talking about here is a gradual transference of part of the internal competence of states, as well as a conscientious and coordinated limitation of sovereignty so that the enacted norms of law reflect not only national, regional and bloc interests but the interests of the international community of states in general, as well. By the way, the question concerning the legal personality law of the international community of states, in general, may become a promising theme for theoretical elaboration in international economic law. There is a point of view (V.M. Koretsky, G. Ehrler and others) according to which the given two spheres of relations are regulated by a single system of so- called commercial (business) law, world economic law, that includes both norms of national (internal) law and norms of international law, i.e., built on the dovetailing of public and private elements. To one extent or another, this doctrine is supplemented by others, for example, the concept of transnational law (V. Freedman, F. Jessuoep and others), which is most often understood as the entire aggregate of norms that regulate actions and events beyond the framework of national borders to be more precise, relations of an international character that do not come under the action of either international law or internal law, or are not fully covered by them. If such an approach is accepted, transnational law emerges as some kind of third legal system (after international and internal law). The doctrine of lex mercatoria (Latin trade law) may apparently also be considered a variety of the concept of transnational law. B. Goldman, F. Fouchart, K. Schmithoff, L. Copelmanas, P. Lalive and others are, it seems, among those supporting such an approach. Lex mercatoria is, according to the given concept, the law created by the Parties themselves to international private-legal economic relations, separately from national legal systems. Quite often lex mercatoria is understood simply as an aggregate of norms, separately from national law, that regulate foreign economic operations: purchase- sale, contract, leasing, transference of technologies, representation, delivery, insurance, credit and payment relations and so on. The sources of lex mercatoria are considered to be: international treaties, recommendatory documents of the international organizations, standard laws elaborated by international organizations, standard contracts, unificated codes of rules, international trade usages, arbitrage decisions, contractual provisions practiced by the participants engaged in foreign economic activity. Possibly, because of this, the term international contract law has quite often been used as a synonym for the term lex mercatoria. Unfortunately, special studies of the above-mentioned theories have not been undertaken in contemporary Russian legal literature (with rare exceptions), although

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there are plenty of opportunities for serious theoretical projections and generalization. For example, it is possible to assume that in the international regulatory system, norms of international contract law (transnational law) are to play the role of a peculiar kind of layer (an intermediate binding layer) between the system of internal law and the system of international law. Contemporary international economic law order. The international normative system is on the high organizational level what is testified by the presence of both the coordinating and subordinating ties in it. And here it is important to take note of the role of both imperative norms and principles as well as of supranational indications that are evident in the process of economic integration and in the activity of international economic organizations. Supranational features can be detected, in particular, in the European Union, in the capacity of the Organization of the United Nations arisen from its Charter, as well as in the capacity of the ILO, the IMF, the WTO, the International Agency on the Seabed and others. One has to admit that in a certain sense a supranational element can be seen in the concept of the general heritage of mankind, the status of which has, in particular, such a promising reserve treasure chest of mineral resources as the seabed. It seems to be apparent that there is a definite interrelationship between the supranational phenomenon and the ideas of transnational law. Doubtlessly, politics and political norms strongly influence the efficacy of IEL, and from this point of view, there is reason enough to dwell upon the interrelationship between politics and law in IER. Norms of IEL are seen as the coordinated formation of the will of states. The will of states is guided by conscientious interests; interests motivate will. Politics serve interests; it is precisely politics that promote the understanding and advancement of these interests. Wherever these interests are transformed into will, and include this will, when will is backed up with the norms of law, there we can see a joining (or non-joining) of politics and law. In norm-forming processes, politics place interests into law. In processes of realization of IEL, politics are aimed at: observing (or not observing) bans in law; on employment (or non-employment) of juridical obligations; on using (or not using) the juridical rights; on various law applying actions. In its turn, law, in all cases, sets the framework in which politics may/is obliged to manoeuvre, and in so doing, through its further development, increasingly restricts freedom of political action. This then underscores the importance for Russian legal science and practice to understand and fathom the category of national (state) interests, in particular, Russias national interests in the area of IER. From the political point of view, what characterizes the IER system today? What we see today is a restructuring of the centre-power interrelationships: the relationships along the East-West and North-South lines are being replaced by a new configuration of centres of power. How this configuration shapes out depends on which tendency gets the upper hand: the tendency towards the formation

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of a unipolar world or the tendency towards the formation of a multipolar world. Here we are witnessing a struggle between the two tendencies. The policy of a state decides which of the centre-power configuration is in line with its national interests. It seems to be apparent that for the USA, which occupies the leading positions in IER, this is a unipolar world, while for Russia, or for example, China, France this is a multipolar world. Around the centres of power there goes the crystallization of so-called foreign economic interests zones. Such zones objectively nudge the states to form integrated associations such as the CIS customs union, or to resolve other major problems the legal governance of applying protective measures, anti- dumping procedures, the legal regime for the services market and so on. Actually speaking, one of the main contradictions in the contemporary international economic law order system is the contradiction between the objectively forming single (unified) world economic environment and the foreign political struggle of the states to ensure their access to world resources, as well as the contradiction between the struggle for a unipolar and the struggle for a multipolar structure of the world. Does the USA have national interests in Africa? Yes, it has because African countries possess strategically important mineral resources. Or, for example, the USA and Russia have proclaimed the Southern Caucasus a zone of their strategic interests. As a result, the given region has become an arena of an acute political struggle between different groups of states, with the use of a whole complex of economic factors from the route of building a new oil pipeline from Azerbaijan to Turkey to the legal regime in respect to the Caspian Sea. Another example highlighting the collision of interests between various states can be seen in the political struggle for elaborating a legal status for transnational corporations (TNC) and for the legal regime of conducting their activity. The importance of this problem is underscored by the rapid growth in the number of TNC in the world: in 1970 there were approximately 7,000, whereas in the mid- 90s of the 20th century there were already more than 40,000. A group of developing states has called for the following: that the jurisdiction of the country of their presence shall be applicable to the TNC; that the TNC shall not have access to international courts; that the TNC shall not enjoy the privileges that are granted to national enterprises; that the elaborated international norms relative to TNC shall be mandatory. On the contrary, the group of the most economically developed states has taken a different approach, namely: on questions of jurisdiction, it is necessary to recognize certain laws of the country of origin of the TNC; the TNC have the right to appeal to international courts; the TNC should be covered by the national regime of the country of their presence, including privileges and preferences; international norms concerning the TNC must be recommendatory in nature. As a result, the developing countries in the Andes group that adopted the Code on foreign investments with unified rules for the activity of TNC implemented

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the norms of the Code on internal law. However, the Code of behaviour for TNC, elaborated within the UN ECOSOS framework, was not adopted in general (The guiding principles for multinational enterprises, elaborated within the framework of the OECR, remain a recommendatory document). What concerns the attitude of Russian science towards IEL, then until recently it was against recognizing the status of subjects of international (or transnational) law for the TNC. However, taking into consideration the active building in Russia of financial-industrial groups and the new tasks concerning the inclusion of the country into world economic system, it would seem there is an imperative need to re-examine the legal and political stand in respect to legal status of the TNC in IEL. All the more so, since international legal regulation of trans-border activity of the TNC in IER has so far not taken shape. Financial-industrial groups, a kind of Russian-styled TNC, should be seen as carriers of Russias interests in IER, and in this sense, this means Russias interests in respect to the international-legal status of the TNC are akin to the interests of the industrially developed states. On the notion of the legal regime in IER. The system of international legal regulation of IER should be seen as a comprehensive, multi-level legal regime. The legal regime represents the law in action. In reality, each norm, principle, institution (part of law branch), each international treaty, each sphere of IER have their own legal regime with various combinations of means, ways, methods and types of regulation be they bans or permission, imperative or dispositive rules, subordinate or coordinating ties and so on. In equal measure, the given theoretical approach is applicable also to internal law. Consequently, the interaction between IEL and internal law may be depicted as the interaction between two regimes, each of which is made up of an innumerable number of less complicated regimes. Therefore, when we are talking about a national regime, an import-export regime, an investment regime and so on, it seems to be evident that we are dealing with internal law. A state may place into its internal legal regime a policy of protectionism or open economy in the sphere of trade, investments; it may foresee certain privileges and preferences as regards the import or investment regime in respect to these or those goods, the spheres of investment activity, or for this or that group of states (developing countries or states participating in the joint integration process). In Russia, the foreign economic regime operates on the basis of several normative acts: the 1993 Customs Code of the Russian Federation (RF), the 1993 Law On Customs Tariffs, the 1995 Law On State Regulation of Foreign Trade Activity, the RF Civil Code (Part One of the Civil Code came into force 1.1.1995; Part Two came into force 1.3.1996), the 1998 Law On Measures to Protect the Economic Interests of the Russian Federation in Foreign Economic Trade of Goods and others.

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In the USA, for example, the foreign trade regime operates on the basis of the following main legislative acts: the 1930 Law on Tariffs (the Smoot-Hawley Tariff), the 1933 Law on the Purchase of American Products, the 1953 U.S. Uniform Commercial Code (on the basis of which each state adopts its own laws), the 1974 Trade Act, the 1979 Law on Trade Agreements, the 1979 Act on Export Regulation, the 1984 Act on Trade and Tariffs, the 1988 Act on Trade and Concurrency, the 1988 Act on the Implementation of American-Canadian Free Trade, the 1990 Act on Customs and Trade and others. At the same time, international law, if it is possible to say so, keeps track of what is the internal legal regime in this or that country, and correspondingly, builds up its own legal norms in respect to what are the permissible limits relative to protectionist measures concerning import of goods/capital, and under what conditions is it possible to afford privileges and preferences for goods from specific states. In other words, we are talking about the international legal REGIME of international trade (or international investment activity and so on). International treaties (agreements) on mutual protection of investments often include a provision related to the national regime principle. This means that the treaty (agreement) establishes the international-legal regime, in accordance with which, the legal possibilities are equalized for a foreign private investor in the territory of the partner-state. And correspondingly, the partner-states build out their national legal systems with due consideration for requirements of international law agreement norms: the internal legal investment regime establishes equality between the internal and external private investor. If internal law employs the term national regime, then in regards to IEL it would be more correct to speak about the international legal regime of granting the national regime (and consequently, about the principle of granting the national regime). These nuances are important both from the practical and scientific points of view since they delineate notions related to different spheres and branches of law, and draw particular attention to the actual juncture of internal and international law. A similar approach should be taken in respect to the most favoured nation principle (the most favoured regime), as well as to certain others. It should also be noted that while establishing the principle of granting the national regime, IEL does not define the material content of that national regime, since that content is determined by internal law. It is on the basis of this principle that in the foreign literature such principles are called standards, i.e., certain juridical-technical criteria on the basis of which material internal law is built. In particular, such standards are related to the principles of granting the national regime, the most-favoured-nation regime, the non-discrimination regime and so on that are a manifestation of the international law principle of sovereign equality. The international law regime of IER functions on the basis of agreements norms, customs norms and recommendatory norms that are set down, in particular, in the UN Charter (Chapter IX International economic and social cooperation),

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the General Agreement on Tariffs and Trade, the General Agreement on Trade Services (GATS), the Agreement on Trade Related to the Intellectual Properties (TRIP), the Agreement on the Trade Related to the Investment Measures (TRIM), the Charter of the WTO, the Charter of the IMF, the Rome Treaty on the establishment of the European Economic Community, in agreements concluded by the CIS members, the UN Conventions on contracts for the international sale of goods, ILO Conventions, in decisions of the WTO, the IMF and the OPEC, in resolutions of international organizations, in The principles defining international trade relations and trade policy, promoting development of UNCTAD, in resolutions of UN General Assembly The Charter on Economic Rights and Obligations of States, The Complex of Fair Principles and Rules, coordinated on a multilateral basis, for exercising control over restrictive business practice, On Protectionism, On Confidence-building Measures in IER, On International Economic Security; in trade, payment, crediting and taxation international agreements, on protection of investments, on economic, scientific-technical cooperation and many other sources of law. The system for international law regulation of IER has actually legalized differentiation of legal regimes, depending on what groups of countries participate in IER, that is a departure from formally equating states that has been coordinated on a multilateral level. Therefore, the subject-states of IEL are differentiated on the basis of their economic development levels into: economically developed countries; developing countries, the stratification of which, in its turn, has also received or is receiving a certain international-lawful legalization; this stratification is based on singling out among the developing countries: a) new industrial countries, i.e., those that are more advanced among the developing countries; b) the less advanced among the developing countries (the poorest); c) and the other developing countries; countries in the transitional period, i.e., the former socialist countries (that at one time represented one of the centres of power called East in the East- West confrontation). The principle of granting preferences was especially introduced for the group of developing countries in IEL. Such a departure from legal equity was considered expedient so as to take into account the actual inequality. As these states advance economically, they will lose their preferences and will join the ranks of the economically developed states and shall take upon themselves all the rights and obligations of economically developed states. From the point of view of foreign policy, by introducing a system of preferences, the developed states have managed to carry out a so-called gradation of the developing states, driving a wedge into their unified bloc, stratifying the interests of the developing countries. As a result of this, the South, together with the East has ceased its existence in the political architecture of the world.

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In accordance with the principle of preferences for the developing countries, every state has the right to lower, for example, import duties on its goods, or in general, it may not apply such duties. This shall not be seen as discrimination in regards to other (economically developed) states, the goods of which are not subjected to such preferences. The result of such a preferential regime is that a large mass of goods flows in the world trade system passes through privileged channels. On the economic integration legal regime. Preferences that states of any level of development grant one another in the framework of economic integration are legalized by the international law custom. And if one takes into account that practically the entire system of IER is in the stage of forming integration associations, then it appears that in the overall regime of equality there are many zones with more privileged legal regimes, that in a certain sense, constitute legalized exception to the principle of the sovereign equality of states. Therefore, it is only natural that there is a considerably intensive movement of goods, services, capital and manpower through such special integration channels. It is necessary to single out several organizational-legal forms of integration associations: free trade zone; this form is characterized by fact that the participant-states waive customs tariffs in trade with each other, however, each of these states preserves its own customs tariffs in respect to goods from third countries; customs union: in this case, the participant-states impose a uniform customs tariff in respect to goods from third countries; common market; in the given case, not only customs, but other administrative borders are opened up in internal goods and services markets of the integration association; economic union, when tariffs and non-tariffs are removed, opening the way for the free movement of goods, services, capital, manpower and finances; a typical feature in this case is the pursuance of a single foreign economic policy along with the emergence and expansion of a supranational method for regulating integration processes; common economic space; such a form presupposes a quite mature political superstructure along with confederating structural tendencies. Neither should one overlook the processes of expanding and deepening the ties between the integration associations, when integration relations link together whole interstate economic blocks. All this also places before the science of IEL the task of theoretically fathoming or rethinking international economic order. On the legal status of countries with a transitional economy. What concerns states that are in the state of a transitional period (i.e., in a stage of going over from a non-market to a market economy), then the singling out of this group of states can be considered legalized. But in this case legalization is not based on some kind of preferences within the given group, but on a certain special

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approach to such countries on the part of the economically developed states. Such an approach implies the non-market economy calls for the application in the economic mutual relations with such countries of special principles, for example, the effective reciprocity principle. In practical terms, this implies the introduction of additional conditions: if the partner-states, one of which has a state-monopolized (non-market) economy, agree to a reciprocal granting of the lowest customs tariffs, then in the given case, the latter must take upon itself additionally the obligation of guaranteeing the import of a certain volume of goods. Special criteria are introduced in respect to countries with state-administered economies in order to initiate anti-dumping procedures in the event of importing goods from such countries. It is apparent that the approach to countries with state-monopolized economies is also a deviation from the regime of equality. Having received acknowledgement of status of market economy, such states acquire the status of being equal in their mutual relations with other market economy states. The degree of market elements in the economy is defined in each specific case. The transition to a market economy is seen as a cardinal change in the economic function of a state: the function of economic (commercial) participation in the economy of a country replaces the function of regulating the economy. During the time of the Soviet bloc, there was on the part of the socialist states a certain political and legal opposition to the above-mentioned special approach to countries with a state-monopolized economy. Today, there is no such opposition, and this apparently implies: the existing system of international legal regulation of IER is oriented towards coexistence on the basis of the principle of equality of states only with a market economy. Countries with a state-monopolized economy, if such should remain or appear, are destined to stay on the sidelines of the existing systems of IER and IEL. As for the principle of freedom of choice by each state in choosing its socio- economic system and special IEL principle in regard to freely choosing the forms of organizing foreign economic activity also represent a question requiring further study. On the concept of reciprocity in IER. One more important subject (possibly one of the key subjects) for IER concerns the problem of reciprocity, which has not, with rare exceptions, been examined by Russian theory of law. For IER, reciprocity is seen as a key concept, since any deal pursues a mutual or reciprocal exchange of certain material and/or non-material resources: goods as against money, services as against money; services as against goods; technologies (intellectual property and/or something material: a sample instrument, some kind of automatic line and so on) as against money, and so on. Consequently, there is an exchange of resources. For the resources moving in one direction, there must be a definite reimbursement from the other direction. That is why the exchange of resources is seen as an exchange of reimbursements (as a rule, the sides control the equivalence of the reimbursements).

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However, is such reciprocity applicable to the legal regime? Is it possible to demand that the national regimes provided in the investment sphere by two states, be absolutely equivalent by their material content? Its clear that such reciprocity is practically unattainable. From the point of view of law, reciprocity, in the given case, should be treated in the following manner: the two sides take upon themselves the obligation to grant the national regime with the material content of the given regime that exists in the internal law of each state, not the obligation to make these regimes equivalent by their material content. Consequently, in respect to the legal regime we may speak about the presence of formal (juridical) reciprocity and material reciprocity. Equality in respect to rights and obligations, their identity in themselves, does not obligatorily guarantee the identity of material conditions. Situations are possible in which there may be formally equal rights, however, their realization do not produce the same results unequal conditions, privileges and obligations. That is why in certain cases, agreements between states may contain a provision for so- called material reciprocity kind of symmetry or adequacy of these privileges and obligations. However, in the system of the legal regulation of IER, material reciprocity is not always attainable due to two reasons: 1) in the legal regime, most often it is practically impossible to determine equivalent material reimbursement; 2) the drive for material reciprocity in legal regimes results in a gap between the interests of separate states and the common interests of the world community of states as a whole to ensure equitable and mutually advantageous cooperation. Bearing this in mind, material reciprocity may be classified as a separate case of mutual advantage, but by no means the only one and the main one. Incidentally, effective reciprocity is essentially one of the variants of material reciprocity. The problem of sanctions in IER. The chief problem in contemporary IER, from the point of view of the international law regime is to replace the rule of economic force by the rule of law. Economic force today is employed: a) as a countermeasure to infringements of the law; b) as an infringement of the law. Here it is important to certain cases from others and to correctly qualify the available juridical facts. The UN Security Council, regional international organizations and some states have repeatedly resorted to economic sanctions in the second half of the 20th century. The chief drawback in such practice is that such economic sanctions are undertaken by states or groups of states outside the framework of the United Nations, on the basis of their own qualification of juridical facts. In order to confirm the validity of applying such measures, reference is made to the existence of infringements to law, the need to fulfil international obligations, to resolutions of UN General Assembly, acts of regional international organizations, to the right to take measures in self-defence and so on. However, quite often such economic countermeasures are illegal or a disproportionate use of economic force.

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Since IER is devoid of a multilateral mechanism that could regulate the use of measures of economic compulsion, their proportionate application in respect to a breach of law, that could establish and qualify facts related to illegal use of economic force, this gives rise to the question of creating a system of international economic security, for ensuring lawful employment of compulsive economic measures within the framework of an institution of international responsibility. To a certain extent, that task is being resolved in the WTO. On the WTO system as a mechanism for legal regulation of IER. As we know, the Agreement on establishing the World Trade Organization was signed on 15.04.1994 in Marrakech, Morocco (that is why it is often referred to as the Marrakech Agreement); the WTO began functioning January 1, 1995. The Supplements to the Agreement contain the texts of GATT, GATS, TRIP, TRIM and another approximately 50 accords and arrangements, forming a one whole package. It is the task of the WTO to ensure multilateral trade relations and to promote the fulfilment of the above-mentioned agreements. If in the system of GATT, the greater part of the norms in the General Agreement was applied to a maximum degree so as to be compatible with national legislation (i.e., seemingly confirming the priority of internal law as compared to GATT rules), then in the WTO system there was a strengthening of the international legal regime and it established the priority of international norms: all states are obliged to bring their internal law in line with WTO requirements. The WTO today is seen as a kind of trade ministry that administers the world trade system. More than 140 states are members of the WTO. Another 30 states are at various stages of joining the WTO. They include Russia and the majority of CIS members. Now we shall take a closer look at the typical features of the existing law order in the sphere of international trade. Juridically, law order in sphere of international trade is built on the basis of the principles and norms set down in the system of bilateral and multilateral agreements, as well as on international law customs. In the international trade system, the states employ two basic methods of regulation: the bilateral method and multilateral method of regulation. In the course of the 20th century the emphasis constantly shifted towards multilateral regulation. With the current adoption of obligations stemming from the WTO Charter (earlier GATT), the member-states no longer need to regulate that same sphere of relations with member-states of WTO/GATT by way of bilateral trade treaties. That is why the action of many such agreements was either suspended (totally or partially) or was terminated. It is precisely at the multilateral level that we are witnessing a coordinated lowering of the overall level of customs levies on goods imported by the WTO member-states. The average level of customs tariffs of the developed countries in 1946-1947 was 50-60%, while at the beginning of the 21st century, according to WTO estimates, it will be approximately 3-4%; and by 2020 it is assumed that there is a possibility to create a global zone of free trade.

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Differentiation of legal regimes in respect to specific goods. However, the lowering of the overall level of customs duties in regard to goods sectors is not proceeding at the same rate: for example, within the framework of the WTO Agreement on aircraft trade, the member-states have waived all customs duties and quantitative import restrictions, thereby forming a zone having special conditions for civil aviation trade. The conclusion of similar agreements in respect to other goods sectors should be ruled out. Therefore, what we have here is not only differentiation of countries according to the level of their economic development, but also a sectorial differentiation of legal regimes in the world trade system. Such product-by-product detailing of the international legal regime in the world trade system can be seen both in the zone of action of the WTO and outside that zone. There are special legal regimes within the framework of which control is exercised over the movement of this or that product that is sensitive to the economy of the producing and/or consuming countries. What we are talking about here is first of all commodity agreements (on wheat, sugar, olive oil, coffee, cacao, dairy products, beef, natural rubber, jute, tropical lumber). Many trans-frontier goods markets are run by a limited number of transnational corporations (for example, the diamond market is controlled by the De Beers Company). Part of the goods markets is under a certain influence of regional economic organizations, organizations of producer-countries or exporter-countries and so on. The world oil market stands out as an example of a market regulated by the main oil exporting countries. It is common knowledge that OPEC exercises control over supply and demand, and through them, also over world oil prices. With the emergence of GATS, still one more strictly within the internal competence of each state the sphere of services (or service field industry) came under the international law regulation. Doubtlessly, with the passage of time, on the basis of GATS there will appear new agreements developing the principles of GATS regulating specific types of services according to the sectorial principle. The main principles in the sphere of services are: the principle of granting the national regime, in accordance with which foreign suppliers of services and the services themselves shall have the use of the same regime as the national services and suppliers of the services; the principle of providing the most favoured nation (MFN) status or treatment, excluding services in the sphere of sea transport, telecommunications and certain others. At the Uruguayan round (1973-1979) of multilateral trade talks with in the GATT framework, delegates raised the question of harmonizing national legislations in the area of protecting the rights to intellectual property (which, incidentally, was opposed by the developing countries) As a result, they adopted an Agreement on the trade related to the intellectual property (TRIP) that was included in the WTO package.

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In internal law, relations in respect to creating and using intellectual property are regulated by copyrights acts, patent rights acts, by the institutions of civil and trade laws. The protection of intellectual property is directly connected with efforts to check unfair competition. TRIP envisages the granting of the national regime and most favoured nation treatment in the area of intellectual properties rights for persons of other participating countries. Tariff and non-tariff measures for protecting national economies. The principle of granting the most favoured nation treatment 15) lies at the basis of the law order in IER. Customs tariffs represent the main area in which this principle is applied. In this case, on the one hand, the given principle, with corresponding exceptions, is universal in this area, since it acts within the WTO system (it is even possible to speak about the cogent properties of the principle), and on the other hand, in perspective its significance diminishes since is a decline in the overall level of customs tariffs, and consequently in the role of customs tariffs for regulating flows of goods. At the same time, the importance of the most favoured nation principle is retained in other areas, for instance, in the non-tariff spheres, the sphere of services and others. Other special principles of international trade law are: the principle of developing trade (or the free trade principle); the principle of liberalizing trade; the principle of protecting the national market; the principle of free transit; the principle of granting the national regime; the mutual advantage principle; the non- discrimination principle; the preferential principle in respect to developing countries. In the international trade system, there are two tendencies that interact together when the matter concerns access of foreign goods to national markets they are liberalism and protectionism. In accordance with these tendencies, the principle of liberalizing trade and the principle of protecting the national market are fixed in international trade law. Tariff and non-tariff measures are employed for this purpose in foreign policy and acts of internal law of the states. The idea of a global, unified economic zone is being implemented by way of the free trade principle, by removing non-tariff barriers, by lowering customs tariff rates right down to their total elimination. WTO strategy is aimed at transferring part of the non-tariff measures of regulation to tariff measures with the subsequent reduction of the latter within the framework of overall progress. The complicated nomenclature of goods in international trade has required a unified approach to their classification. Previously, the building of national tariffs was based on the Brussels nomenclature of goods of the Customs Cooperation Council. Beginning with 1988 the developed states switched over to tariffs based on the Harmonized System (HS) of describing and classifying goods that was also elaborated by the Customs Cooperation Council (now the International Custom

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Organization) on the basis of the UN International Standard Classification of Goods. Russia went over to HS in 1991. The currently existing customs tariff in Russia envisages rates of the most favoured nation regime as the base rates. What concerns goods from countries that are not the most favoured nations the base rates are doubled. Goods coming from 46 of the least developed of the developing countries are imported duty free. Goods from the CIS members are also brought in duty free. The overwhelming majority of Russian customs tariff rates fluctuates with the range of 5-40%; there is a stage- by-stage plan to lower the rates to an average of 15% in the foreseeable future, taking into account the negotiating stands of the sides in connection with the process of Russia entering the WTO. Gradually, the practice of employing non-tariff measures by states has also come into the sphere of international legal regulation. This is yet another example of how major questions within the internal competence of states are going over into the sphere of international law. States are using the establishment of quotas, licensing, voluntary restrictions of export, technical standards, sanitary norms and so on, (altogether, there are approximately 600 types of such kinds of restrictions) as non-tariff measures. Several GATT articles devoted to certain non-tariff measures, as a result of multilateral trade talks, were developed into separate agreements that are called codes on technical barriers in trade, on procedures of licensing imports, on the application of sanitary and phyto-sanitary measures and others. The gradual and controlled lowering of the efficacy of customs-tariff regulatory means leads not only to a more intensive use of non-tariff measures but also to the active use of protective measures. Protective measures imply allowed or previously agreed upon temporary restrictions on the import of some kind of commodity that may incur losses to the national producer if imported. Such measures must also be applied in accordance with the most favoured nation principle. Within the WTO framework, there is an Agreement on protective measures that recognizes as a form of protective measures only the temporary raising of customs duties or the allocation of quotas (all other forms of protection grey zone measures are forbidden and must be removed). All protective measures may be employed in the course of 4 years, with possible non-automatic extension for a similar period. A Committee on protectionist measures has been established to oversee such practice. On international financial law. International law order in the world financial system, that is a component part of the international law regime in the sphere of IER, has its own peculiarities and tendency of development that deserve to be dealt with separately. The movement of goods and services is accompanied the transnational movement of currency and finance flows that are reflected in the national balances of payments. The aggregate of legal norms regulating world economic relations

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with the use of payment facilities forms international financial law. In international financial relations just like in the international trade system it is possible to clearly make out a tendency of mutual penetration of international law and internal state law, an intensification of the impact of international financial law on the national systems of regulating financial relations, convergence of financial systems and unification of financial legislation. Not only countries, but natural/legal entities primarily banks, exchanges, funds and other credit bodies participate in international financial relations (in the broad understanding of this term). The objects of legal relations in international financial law are: national currencies, international units of payment, currency convertible conditions, national legal regimes in the sphere of finances, forms of international payments, the state of the balance of payments, legal regimes of international currency markets, liabilities and so on. Transnational movement of financial means is executed through the mechanisms of payments, currency and crediting operations. International payments are the functions of banks. The activity of banks in the sphere of international payments is the object of the internal state regulation. Payment transactions among banks are regulated by codes of rules and customs (usages) codified by the International Chamber of Trade, check and bills of exchange conventions, inter- bank agreements, intergovernmental payment agreements and trade treaties. Currency transactions are executed in the form of sale-purchase of currencies, equities and certain other forms related to the movement of capital (investments). Under the currently existing Jamaican currency system, there is a free choice of the currency exchange rate regime. That is precisely the reason for the growing scope of currency speculation in the world. The international currency market is closely connected with the international crediting market where we witness the movement of monetary (loans) capital between countries. The main players in the crediting market are state bodies, state agencies, transnational corporations, banks, international financial and crediting organizations. In the event of receiving credit from a bank, a mortgage, voucher or guarantee are used to ensure that the credit is returned. Funding, leasing, factoring, forfeiting and trust transactions are among the other main active banking operations. The growth of the foreign debt of many countries in the 1970s-1980s of the 20th century aggravated the problem of currency risks and solvency of those taking loans. This then prompted a more intensified coordination of the policy of states in respect to debtor countries and overseeing the activity of commercial banks. The implementation of a number of interstate measures helps to improve the activity of non-governmental institutions and inter-bank clubs. One of them is the so-called Paris Club of creditor states. Its main vectors of activity are to elaborate and coordinate conditions in regards to previously concluded credit agreements and regrouping debt obligations. The Club does not

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have a charter or any other formal rules. The Clubs working procedures are based on 40 years of experience. The London Club of creditors performs similar work in overseeing international credit activity, collecting information about countries taking loans and solving debt obligations. International organizations regional and universal play an important role in the matter of ensuring law order in the world financial system. The International Monetary Fund (IMF) is a kind of finance ministry, the nucleus of the financial system. In the event of deficit in the balance of payments, national governments strive to liquidate this deficit by all available means, including taking credits from the IMF. In respect to member-states, the competence of the IMF possesses certain supranational features. Those relations and problems that affect the interests of the whole of mankind objectively require supranational regulation. Supranational elements are outlined in Article IV of the IMF Charter. On its basis, the Fund defined the policy of the member-states in the sphere of parity of national currencies and changed the rates of currencies without the consent of states. The states were deprived of the right to independently introduce currency restrictions on the purchase of currencies, to change their parity, to carry out devaluation without the consent of the Fund and on the demand of the Fund had to submit reports about their financial-economic situation. After certain amendments were introduced to Article IV in the 1970s, the supranational elements in the IMF became softer in form. The abrogation of gold parity heightened the role of the state in defining the currency exchange rate, but all the main and legal questions concerning the functioning of the system of special drawing rights (SDR) still remain within the competence of the IMF. Many questions related to organization and management of the IMF depend on the size of the share made by a member-state to the Funds charter (constituent) capital. The amount of credit that a state can receive from the organization depends on size of this share. Russia ranks 9th among the IMF member-states in respect to its share and has the opportunity to appoint its Director in governing organ of IMF. On international investment law. Besides the movement of goods and financial means, the movement of capital forms one more subsystem in IER. Let us examine the state of international law order in the investment market. The aggregate of norms regulating interstate economic relations in respect to investments constitutes international investment law. The subject of legal relations in this case is investments in any form (direct, portfolio, loan capital), the investment climate, and the regime of enterprises with foreign investments, equities, and the right of ownership of such equities, debt obligations and others. Transnational movement of state and private investments is conducted within the framework of single international market of investments in which the interests of the investor and the recipient of the investments, supply and demand, are united. It is evident that the international market of investments is both in the sphere of

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regulating international economic law, as well as in the sphere of regulating national systems of intrastate law. The role of the state in the international investment process is seen in that it itself, on the one hand, is a major exporter of capital, and on the other hand, acts as the guarantor of the export of private capital. The state bears the responsibility of protecting investments. National law determines to what extent a foreign element can penetrate the internal market of investments. There is no centralized universal international- legal regulation of the procedure for carrying out direct, portfolio investments or investments in the form of capital loans abroad. Nonetheless, the world economy is moving towards the creation of a multilateral mechanism with certain rules in respect to direct foreign investments. In view of this, it is possible to make out a tendency towards liberalization of the investment regime in the majority of the countries in the world, a growth of bilateral and multilateral agreements. The tendency to unify investment regimes, towards universalising the rules of receiving and protecting foreign investments is seen in the creation of various national and multilateral codes of conduct and similar acts. For example, the Code for the liberalization of the movement of capital was adopted in its time by a decision of the Council OECD. In 1992 the IBRD adopted the Guiding principles in respect to the regime of foreign investments. A Voluntary Code in regards to direct foreign investments was adopted with the APEC framework in 1994. In the opinion of specialists, the given Code may be used in the future by the World Trade Organization. The sources of international investment law are, in particular, bilateral international agreements for promoting and protecting investments, for eliminating double taxation, trade treaties, agreements on settlements, treaties on economic and industrial cooperation, as well as multilateral agreements; the 1965 Washington Convention on the procedure for settling disputes between the state and an individual from another state; the 1985 Seoul Convention for establishing a Multilateral Agency for investment guarantees; the Agreement on trade related to investments (TRIM) measures that functions in the WTO system. The policy of states in respect to export and import of investments in the form of credits, portfolio investments proceeds, as a rule, from removing barriers in the way of their movement (however, this does not imply removal of accounting and controlling the movements of investments). What concerns direct investments, then usually the states more stringently regulate their import and export, including the introduction of any kind of restrictions in order to protect the national producers and the economy in general. With a certain degree of arbitrariness, it is possible to define certain main principles of international investment law, namely: the principle of free investments; the principle of freely applying protective measures upon import of investments; the principle of protecting investments; the territorial principle of regulating foreign investments; the principle of state and international control over the

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movements of investments; the principle of not inflicting damage to the economy of the recipient country with such investments; the principle of not allowing expropriation/nationalization of foreign investments without appropriate compensation; the principle of freely transferring revenues and dividends from the investments outside the base country; the principle of subrogation (transfer of the right to demand reimbursement in case of losses to investments from the private investor to the state investor); the principle of eliminating double taxation; the principle of non-discrimination; the most favoured nation principle; the principle of granting the national regime and certain others. The TRIM agreement forbids states to use employ trade policy measures that have a negative influence on foreign investments and that run counter to the principle of granting the national regime. For example, states must not have in their internal law demands to enterprises with foreign capital: in mandatory use of a certain share of national goods in their production process; on purchase of import products in a certain proportion in regards to purchase of national products; on the mandatory export of a fixed share of the manufactured products and so on. On state contracts and immunity fission. Very often, especially if the matter concerns the development of natural resources, the regime of receiving and protecting investments is defined in an agreement between the recipient state and the investor. Quite often, in such an agreement the importer-state pledges not to take any measures to nationalize or expropriate the property of the investor. Such agreements are called diagonal and in Western literature state contracts. The most widely used types of state contracts are agreements on concessions and agreements on production sharing. State contracts are related to the sphere of internal law. Many Western lawyers consider this is the sphere of international contractual law. The question of a states immunity is related to the question of state contracts. In accordance with the concepts of immunity fission, functional immunity that are employed by the industrially developed countries, if a state enters into a property, civil-legal agreement with a foreign normal/legal entity for executing the functions of sovereignty, then by this agreement, it is covered with immunities: court action, from preliminary ensuring a lawsuit, from mandatory execution of a lawsuit. At the same time, if a state enters into a civil-legal agreement with a foreign normal/legal entity for commercial purposes, then it is actually equated with the legal entity and must not be able to make use of the above-mentioned immunities. In connection with this, several states have adopted internal laws on questions of immunity the 1976 U.S. foreign states immunity act, the same 1978 act in the U.K. The U.S. Act stipulates that immunity shall not be recognized in the event that the grounds for a lawsuit are based on commercial activity conducted by a foreign state in the United States, or action executed outside the United States in connection with the commercial activity by a foreign state outside the United States, if that action has direct consequences for the United States. Canada, Australia,

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Pakistan, Singapore, the Republic of South Africa and others have similar laws. The legal doctrine of the USSR, the socialist countries and many developing countries emanated from such a concept of immunity, according to which even in economic (commercial) turnover, a state does not relinquish its sovereignty (and immunities) and cannot be deprived of it. In conditions of a market or transitional national economy, such a concept will hardly promote an influx of private investments, and this is why the legal policy and stand of Russia, other CIS members must proceed, from the immunity fission doctrine. Law on international economic aid. Let us examine the state of law and order in one more sphere of IER in which there are movements of monetary and material means, services, and investments but without material reimbursement heading in the other direction. What we are talking about here is the market of international economic aid. It is known that aid is provided both for the purpose of overcoming economic backwardness, unfavourable consequences of force-majeure circumstances, satisfying specific, limited requirements as well as for getting ones products into foreign markets, intensifying the positions of transnational corporations and exerting influence on the recipient state. Economic aid may be single-time or regular; bilateral or multilateral; private or state. The subjects of the legal relations in international economic aid are material and monetary means, services and investments. The sources of the law on international economic aid are international law customs, international agreements on economic and technical aid, on military-technical cooperation, credit treaties, agreements on gratis aid and so on. In the Soviet Union, one of the widely practiced forms of providing aid was technical assistance to the developing countries on the basis of agreements on technical aid (with the rendering of technical services along with deliveries of equipment, construction of industrial or other types of facilities). At the multilateral level, economic aid is provided via various channels and structures. Within the OECD framework, such aid is provided by the industrially developed states to the developing countries by providing loans on a gratis basis or at low interest rates. The European Union also has its own system of providing aid to third countries. Besides that, there is a network of regional and interregional structures that provide international aid, for example, the Special Fund of OPEC. In the United Nations questions concerning the provision of free humanitarian aid are within the realm of the World Health Organization (WHO), the Food and Agriculture Organization (FAO), the Childrens Fund (UNICEF) and others. The IMF-World Bank system is also largely oriented towards providing financial and economic aid to its member-states. However, on the whole, one must admit that so far the general principles for providing and accepting economic aid have not been worked out today in the given sector of the international legal regime. States are free to accept or not accept

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economic aid this, apparently, is one of the basic, customary legal principles of the law of international economic aid. On the other hand, there is no juridical obligation or duty to render such aid (if otherwise has not been agreed upon by the sides in a treaty or in any other way). The traditions of international morals are stronger in this sphere than in any other sphere. International labor law. The science of IEL has always devoted little attention to this sphere. The internationalisation of production and the intensification of interdependency of national economies have objectively predetermined growing migration of manpower as a commodity. This resulted in the formation of an international labour market embracing differently directed flows of labour resources that crossed national borders and uniting national and regional markets. The sources of international labour law are seen in bilateral treaties on friendship and cooperation, treaties on trade and shipping, treaties on settlement, treaties on immigration, on professional education, on social security, on seasonal workers, on eliminating dual taxation and so on. Under the auspices of the Council of Europe, the following documents have been adopted: the 1950 European Convention on the protection of human rights and the basic liberties, the 1955 European Convention on settlement, the 1961 European Social Charter, the 1977 European Convention on the legal status of the working migrant and others. In Latin America there is the 1977 Convention on migration of workers that functions among the states that are Party to the Andes Pact. The Arab Convention on migration of manpower was signed in 1968 under the auspices of the League of Arab States. In the CIS there is the 1994 Agreement on cooperation in the sphere of migration and social protection of migrating workers. At universal level there are the ILO Conventions and 1990 UN Convention on the protection of the rights of migrating workers and members of their families. The international legal regime in the labour market is based, proceeding from the above-mentioned sources, on the following rules, in particular: prohibiting discrimination among migrant workers; working migrants are to be granted the national regime (with the exception of certain spheres, for example, state service, as well as with certain restrictions with due consideration for public order, public safety and protection of human health); the working migrant and members of his family have the right to transfer all their earnings and savings to their homeland, as well as to take their personal belongings and so on. Within the framework established by international law, the states have the right to establish this or that procedure for crossing the border for their own citizens and for foreigners, for creating the conditions of stay for foreigners (migrant workers), conditions for their access to employment. Many states use so-called immigration quotas to shape their immigration policy. Several countries resort to such a regulating instrument as restricting the departure of highly skilled specialists. States introduce licensed activity for enterprises engaged in job placement for citizens abroad. Controlling and protecting functions in respect to migrant workers are to be exercised by consular missions of the exporting countries abroad.

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Out of the complex of law orders (in the world trade, financial, investment systems, in the market of economic aid and in the labour market), a brief review of which has been presented above, there grew up the international law order in the sphere of IER. This order is the most dynamically developing part of the world order. This process is moving ahead with some acuteness also because many types of natural resources will be exhausted in the 21st century; there is a latent struggle among states for resources and the drive for access to them is becoming evermore aggravated. Typical features and phenomena in the system of legal regulation of IER. Summing up the examined tendencies in contemporary IER from the point of view of law, it is possible to single out the following features and phenomena in modern INTERNATIONAL ECONOMIC LAW. First. The main problem in the international legal regulation of IER is seen in the domination of economic forces and the indiscriminate application of economic sanctions by states on the basis of their own classification of juridical facts. Second. In the system of international legal regulation of IER, it is possible to observe a factually legalized differentiation of states depending on the level of their economic development (and also to what extent the economy of this or that state has or has not attained market status). Third. We can see the establishment of differentiated legal regimes in various sectors of IER and branches of IEL. For example, there is actually a world zone of free trade with aircraft equipment on the basis of the appropriate Agreement in the package of WTO agreements. Fourth. Through the international law customs, there has been a legalization of preferences that states grant each other within the framework of economic integration. Fifth. The strengthening of the international legal regime in IER is continuing to gain momentum. From maximal compatibility with internal law, it is transforming into a regime in accordance with which, all states must bring their internal law in line. Sixth. In the system of the international law regulation of IER, the emphasis has been shifted from the method of bilateral regulation to the method of multilateral regulation. Seventh. A large place in the legal regulation of IER is occupied by norms of the so-called soft law, international customs, usages, norms of the grey zone. Eighth. The supranational phenomenon is standing out more vividly in IER. The supranational function of law and transnational law are seen as transitional stages in the development of the system of law regulation. Ninth. An ever-increasing number of questions pertaining to the internal competence of states is gradually going over to the international law sphere of regulation and this implies an expansion of the object sphere of IEL. Tenth. All that is taking place in the political and legal superstructure spheres is to a certain extent in discord with the objective process of forming a common

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world economic zone. The main contradiction in that sense seems to be a conflict between the tendency of lowing economical borders of the states under the requirements of the globalisation, from one point, and the states aspiration to conserve the maximum of control over the national economy as the basis of its sovereignty, from another point. Naturally, all the given processes and phenomena in IER are reflected, to one degree or another, in international law, are based on it or require their formation in it. It looks as if the further development of IEL will proceed between two main tendencies in contradictions between subordinating and coordinating methods of regulation. It is the task of Russian specialists and practical workers engaged in the sphere of foreign economic activity, in corresponding state bodies, the Russian science of IEL to help Russia to enter the system of IEL as an equitable partner, to ensure Russias national interests with applicable legal, political, economic means that influence at a faster rate the formation of legal norms and institutions in the sphere of international economic law order. We must learn how to employ outstripping action, via precedents, unilateral actions and acts, through initiative decisions by international organizations and so on to form by ourselves the development of international economic law in a desirable direction, transforming favourable usages into the customs norms, and the latter into the norms of agreements. In other words, we must learn how to place Russias national interests into the norms of international law as our strategic partners-rivals are doing.

NOTE: Most of the provisions and ideas exposed in this article are developed and interpreted in the authors books: V.M. Shumilov Mezhdunarodnoye economicheskoye pravo (International economic law), 2 ed., M., pub. DeKA, 2002. V.M. Shumilov Mezhdunarodnoye publichnoye economiceskoye pravo (International public economic law), M., pub. NIMP, 2001. V.M. Shumilov Mezhdunarodnoye economiceskoye pravo v epohu globalizatsyi (International economic law in the epoch of globalisation), M., pub. MO (International relations), 2002.

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INSTITUTION OF RENVOI IN THE CONTEMPORARY PRIVATE INTERNATIONAL LAW

A.V. Anichkin* The private international law is a relatively young but dynamically developing branch of jurisprudence with its own specific subject and method. Despite the existence of various concepts of the private international law, both the Russian and foreign scholars adopted a more or less common approach to the subject of the private international law. Generally speaking, it can be formulated as follows: the private international law should be considered as a branch of the national law systems which deals with private legal relations (primarily, civil in nature1 ) involving a foreign element. Such a specific subject of the private international law implies the peculiarity of the methods used for the regulation of private legal relations containing a foreign element. Currently the private international law employs two main approaches2 : a substantive method of regulation, i.e. establishing legal rules which directly regulate the relations involving a foreign element, and a conflict of laws method aimed at selecting a law applicable to a specific relationship involving a foreign element. Although the substantive method has nowadays ever greater importance (e.g., via the conclusion of international agreements aimed at the regulation of various private legal relations), nevertheless the conflict of laws approach still remains the most widely employed method with the help of which the law which is applicable to the given legal relationship is found. One of the issues arising when determining the applicable law is the problem of the so-called renvoi (Rueckerweisung, remission).3 Basically the problem looks the following way: when the conflict rule prescribes the application of a foreign law, then a question arises whether we should apply exclusively the «internal» substantive rules of the foreign law4 or the conflict rule refers to the foreign law as a whole, i.e. including its conflict rules. In other

* Alexandre V. Anichkin Lawyer with the International Law Firm «Clifford Chance Puender» 1 On the Place of Civil Law within the System of Private Law See S.S. Alekseev Private Law. Moscow: Statute Publishing House, 1999, pp. 49-63. 2 Yu.A. Tikhomirov. Law of Conflict. Moscow: Norma Publishing House, 2000, p. 321. 3 According to the classic terminology, the notion of renvoi implies the transfer and/or reference of a case to a higher jurisdiction or authority (M. Issad. Private International Law. - Progress Publishers, 1989, p. 114). 4 In the English literature on the private international law, the «internal» law of country is normally defined as law applied by courts of a country in cases which contain no foreign element (Dicey and Morris. On the Conflict of Laws, 1993, p. 71).

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words, should a court when applying a foreign law take into consideration the conflict rules of a foreign state. The application of the law of conflict of a foreign state may lead us to conclude that the law competent to settle the given dispute should be exactly the law of forum. At the same time the conflict rule of a foreign state may contain a reference to the law of a third country rather than to the law of forum (renvoi au second degre, Weiterverweisung, transmission). The problem of renvoi is one of the most heavily debated issues of the private international law, and quite a number of prominent authors dedicated their works to its thorough consideration.5 According to M.M. Boguslavsky, the issue of renvoi is «one of the most complicated problems of application of conflict rules.»6 The foreign scholars of private international law deeply scrutinized the essence of the problem of renvoi, however a common resolution of the question has never been worked out. The question of renvoi as one of the aspects of operation of the conflict rule relates to the so-called general part of the private international law specifically distinguished by the Russian science. Therefore, the question of renvoi is of importance for all special institutions of the private international law such as the conflict regulation of contractual relations, conflict issues of the family law, law- of-torts, etc.7 This thesis, however, does not exclude the possible existence of special rules for solving the renvoi problem in respect to these individual institutions due to the specific features of the same institutions. A contradiction possibly arising because of that fact shall be handled on the basis of the principle lex specialis derogat lex generalis. Since today the Russian private international law8 is in a state of transition, anticipating the adoption of a fundamental legislative act on the law of conflict namely the third part of the Civil Code of the Russian Federation studying the institution of renvoi as a principle of operation common to all conflict rules is of special significance. The enactments adopted in the course of reform of the Russian law in general and law of conflict in particular, such as the Merchant Navigation Code and Family Code, contain special conflict rules designed for regulation of the choice of law issues arising within these specific private international institutions but do not contain any general principles of conflict regulation. However such sectoral codes are not at all intended for regulating the general issues of the law of conflict. Basic principles of the Russian private international law, which shall be common to all the individual branches thereof, shall be explicitly set forth in the long-anticipated third part of the Civil Code of the Russian Federation.

5 As Nussbaum put it, the number of works dedicated to the problem of renvoi almost equals the total number of works dealing with the private international law as such (A. Nussbaum. Principles of Private International Law. Oxford University Press, 1943, p. 102). 6 M.M. Boguslavsky. Private International Law, Moscow: Jurist Publishing House, 1998, p. 91. 7 On the System of Private International Law. See L.A. Lunts. Private International Law. Moscow: Yuridicheskaya Literature Publishing House, 1973, p. 33. 8 Herein and below the term «private international law» in the given article is used to denote conflict rules only, i.e. the private international law in a narrow sense.

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The necessity of such a research is also dictated by the fact that today the Russian doctrine of the private international law does not have a distinct viewpoint on the problem of renvoi. This situation looks especially strange considering the continuously growing interest demonstrated by the domestic legal community towards the private international law. However, a mass of broadly circulated textbooks and monographs on the private international law are largely based on the theoretical findings of the Soviet scholars and basically do not aim at the creative revision of the no doubt outstanding scientific knowledge. For example, the last fundamental works concerning the problem of renvoi date back to the early 70s of the past century that saw the publication of a three-volume course on the private international law edited under the supervision of L.A. Lunts. Since that time the domestic legal scholars have only restated theses formulated in the above study. However, the private international law is continuously developing, and at the present stage it is quite possible to identify the trends, in the light and under influence of which we have to review the hardened perceptions of the private international law and its particular institutions as well as to revise the existing views and approaches to assess their viability in todays legal environment. Among the most vivid and significant changes in the contemporary private international law one should mention the ever broadening application of the closest connection doctrine as a dominant connecting factor as well as ever increasing restriction of the principle of sovereignty of state as far as protection of human rights and involvement of state in the commercial turnover are concerned. Such changes in the regulation of the international commercial turnover and other private legal relations involving a foreign element, in our opinion, have a direct impact on the law of conflict and its basic institutions. An additional reason for studying the institution of renvoi is a consideration that even the legislative adoption or abandonment of the same principle does not remove from the agenda numerous issues related to the methodological and scientific substantiation of this or that approach. Moreover, as we will see below, the wording of the laws, which expressly regulate the renvoi, appears to be rather ambiguous and uncertain, and the practical application of these norms does not necessarily yield the results that could be expected after learning the text of the respective rule concerning the problem of renvoi. Thus, the establishment of the legislative rule on the renvoi problem also requires a certain theoretical and methodological substantiation that would make it possible to settle problems related to the application of the renvoi rules as well as to eliminate any criticism in connection with the lack of a rationale under such rules. The present article is an attempt to give an essential characteristic of the renvoi institution in the light of new trends in the private international law, distinctly determine the role of this institution in the law of conflict, and predict the future of the renvoi doctrine in the private international law. The given article is based on materials collected by the author when writing a degree thesis on the issue in question. However, considering the format of a scientific article, the present work

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does not seek to present a detailed review of major renvoi theories, especially taking into account the fact that numerous reviews concerning this subject have been repeatedly published in the Russian and Soviet literature dealing with the private international law.9 Within the framework of the present article the author will try to provide just a panoramic overview of main theories developed both by the domestic and foreign law science. At the same time the given article is meant to generalize the latest renvoi-related experience in the private international law and describe the mechanisms of renvoi occurrence so as to bridge the gap existing in the domestic legal literature. Substance of Problem The problem of renvoi arises from the uncertainty of the term «law of the country» which is employed by the conflict rules: either it implies a reference to the internal substantive law of the country (reference to municipal law, Sachnormenverweisung), or a reference to the whole law (Gesamtverweisung) including its conflict rules. If the latter solution is chosen, the internal law of substance of a country to which refers the conflict rule legis fori shall be applied only if the conflict rule of this country prescribes the same. In this connection we can identify the following cases when the problem of renvoi arises as a result of various forms of disagreement between conflict rules of different states that may occur while determining the situs of legal relationship: the unconformity of connecting factors; the different characterization of concepts employed by connecting factors; and the problem of the so-called latent (hidden) renvoi. Renvoi as a Result of Unconformity of References First of all, the issue of applicable law of substance shall be tackled depending on the conformity of connecting factors used by conflict rules applicable to the similar legal relationships. The following cases could be cited as examples of unconformity of reference formulae: while considering the questions concerned with the identification of the lex personalis, references to the law of domicile may collide with references to the nationality law of an individual; when determining the statute of contractual obligations a reference is being made either to lex loci contractus or to lex loci solutionis and such examples are virtually abundant. Renvoi as a Result of Different Characterization The identical connecting factors can also give rise to the problem of renvoi due to differences in the characterization of similar legal concepts by courts of different countries. For instance, the application of the concept of domicile for determining the lex personalis of a natural person can lead to the occurrence of the renvoi problem in the cases when the concept of domicile is interpreted differently in different jurisdictions. For example, under British law a person can be considered

9 See, e.g., A.N. Mandelstam. The Hague Conferences on the Codification of Private International Law. St. Petersburg, 1900, Volume 1. L.A. Lunts. Cited by Collected Works.

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as domiciled in the state of New York whereas according to the law of the state of New York the same person will be treated as domiciled in the United Kingdom.10 In this example, problem of renvoi is closely associated with another aspect of operation of the conflict rule the problem of characterization. Hidden Renvoi However, apart from the above two most typical and common examples of renvoi problem occurrence, there exist individual quite rare and specific cases when courts apply the doctrine of renvoi. For instance, one of the peculiar features of the German conflict law is the existing phenomenon of the so-called «hidden renvoi» (versteckte Ruekverweisung) the validity of which is doubted by the German scholars of the private international law themselves, though this fact does not preclude the German courts from its application. The formula of «hidden renvoi» can be expressed as follows: if a foreign law referred to by the conflict rule legis fori does not contain any prescriptions concerning the applicable law (conflict rules as such), then such rules shall be deduced in a speculative manner by interpreting the laws of civil procedure which determine the jurisdiction of the foreign court.11 To gain a better insight into this mechanism it seems worthwhile to illustrate the above thesis by an example. For instance, if a US citizen, who permanently resides in Germany, dies interstate and a question arises what law should govern all legal relations concerning the inheritance of real estate in Germany owned by the said US citizen as well funds on his/her accounts with the German banks, a German court authorized to consider the case will reason in the following way: the German conflict rule prescribes in such a case to refer to the national law of the testator, i.e. the law of the United States. In accordance with the principles of determination of an applicable law when referring to the law of a state with multiple legal systems it is established that applied in such a case should be the law of the state of New York. According to the prescriptions specified by Item 1 of Paragraph 4 of the Introductory Law within the German Civil Code, a German court should take into account the prescriptions of the conflict rules of the state of New York. However, the law of the state of New York does not contain any directions for determining the statute of inheritance. At the same time the laws of procedure of the state declare the New York courts competent to settle disputes concerning the inheritance of the following: · Movables left by a testator domiciled in the state of New York · Real estate on the territory of the state of New York Based on the above court jurisdiction rules, a German judge shall deduce the following conflict principles: · The issue of movables shall be regulated by the law of the testator domicile

10 Dicey and Morris. Op. Cit., p. 71. 11 K. Firschung, B. Hoffmann. Internationales Privatrecht. 5. Auflage. C.H. Beck. Muenchen, 1997, s. 231.

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· The issue of real estate shall be regulated on the basis of lex rei sitae Therefore, the conflict rules of the state of New York deduced in such a manner prescribe the application of the German law and a German judge admits such a renvoi in compliance with the fundamentals of the German conflict law.12 This approach, however, is being heavily criticized in Germany itself, since it is difficult to understand the connection seen by a German court between jurisdictional provisions pertaining solely to the law of procedure and establishing whether a court is competent to settle a specific dispute, on the one hand, and conflict rules determining what substantive law is applicable, on the other. As may be seen from the foregoing, the problem of renvoi does not occur in the case when the conflict rules of both countries determine the applicable law in a similar way. However, if the legislators of both countries take different approaches when establishing the conflict rules, then renvoi will not be the only consequence of the above difference. Another consequence of such a discrepancy can be the application of the law of a third country, if the conflict rules referred to by legis fori considers as competent some third legal order. As a result, the so-called renvoi to the law of a third country comes into play.13 Although both the problem of renvoi and the problem of reference to the law of a third country originate from

12 Considering the phenomenon of «hidden renvoi» it might be interesting to speculate on whether the same approach can be used by the Russian courts. Since the effective Russian law of conflict does not contain any indication of the subject of reference (the foreign law of substance or the foreign law as a whole), it should not be excluded that a court may refer to the conflict norms of a foreign state. This brings up the question: how should a judge act if he/she fails to identify the foreign conflict rules applicable to given legal relationship? It seems that this question can be answered in the following way. According to Article 157 of the Fundamentals of Civil Legislation of the USSR and Union republics, that regulates the process of determining the meaning of an applicable foreign law, in the case when a court fails to determine the meaning of a foreign law, the court should apply the Soviet law. Since the subject of renvoi is not determined and there are no specific instructions of a foreign conflict rule in place, a judge should apply the municipal law (in the given context he/she should be guided by the Russian conflict rule), we shall conclude that «hidden renvoi» cannot be applied by the Russian courts. 13 Taking into account a variety of situations caused by admitting the principle of renvoi, it is essential to make relevant comments on the usage of terms in the given article so as to avoid any misunderstanding in perceiving the material under discussion and to simplify the process of presenting the problems in question. Since, as we believe, fundamentally important to the existence of the doctrine of renvoi is obtaining a proper answer to the question what the subject of reference is the whole legal order of a foreign state, including its conflict rules, or solely its «internal» law of substance the issue of effect induced by incorporating the conflict rules of a foreign state into the scope of the subject of renvoi falls into the background. In this connection, pursuing the above stated objectives, while studying the issue of the subject of renvoi, the author will use the term «renvoi» for denoting both cases when the application of renvoi results in reference to the law of forum (remission) and cases when the application of renvoi results in reference to the law of a third country (transmission). Such a distinction between remission and transmission will come into appreciable importance only when we shall start analyzing the rules of application and principles of operation of the renvoi doctrine. While scrutinizing the above stated questions to be covered by our research within the dichotomy «reference to the law of forum» (remission) «reference to the law of a third country» (transmission) the term «renvoi» shall denote solely the former situation.

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one and the same source the science of private international law as well as the law of individual states are featuring dissimilar approaches to these two problems in point. Moreover, admitting the principle of reference to the law of a third country may give rise to the so-called «chain of references». The following chains of references can be distinguished: · The conflict rule of a third country refers back to the law of forum (reference of a judge to his/her national law) · The conflict rule of a third country refers back to the law of a country referred to originally by the conflict rule of the law of forum (which results in the emergence of the vicious circle that, however, does not affect the country of court) · The conflict rule of a third country may extend the chains of references and refer a judge to the fourth jurisdiction which could result in the occurrence of any of the above described situations mutalis mutandis The doctrine of renvoi, as is generally believed, emerged as a result of the Faurgot case considered classical for the private international law and solved by the Court of Appeals of France in 1878. It was precisely that case that had acquired the worldwide publicity in the legal community and laid a foundation for the doctrine of renvoi as one of the elements of operation of the conflict rule.14 However, having just emerged, the doctrine of renvoi immediately became the object of close attention and aroused a wave of arguments. The reason for such a discrepancy in opinions and bitter controversy consists in the fact that in the form of renvoi legislators and judges obtained an extremely powerful tool for restricting the application of the foreign law and respectively for expanding the scope of operation of their domestic law. Taking into account the existence of a wide range of contradictory references and numerous differences in their characterization as well as the generally careful attitude to the application of the foreign law, such a convenient possibility of reverting to the law of forum, based at that on the conflict rule of a foreign legal order which made it possible to elude any accusations concerning lop-sided judgments and lawless actions could not be left unnoticed. It is worth mentioning in this connection that in many cases one can easily see the desire to use the institution of renvoi primarily as an instrument for restricting the application of the foreign law which gave rise to justified objections and led to harsh accusations highlighting the fact that the principle of renvoi simply distorts the idea of the private international law per se. That is why a demand arose for creating a solid foundation to the theory of renvoi. It should be noted that the issue of renvoi is of significant importance in the sense that it is precisely the general question of private international law since it

14 However, a mention should be made of earlier cases concerned in this or that way with the problem of renvoi. For example, in 1861 the Court of Appeal of Luebeck considered a certain dispute when a reference to the law of a third state was applied for the first time, and in 1841 while considering the case Collier vs. Rivaz the British judge Jenner formulated the ideas currently underlying the doctrine of foreign court.

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determines the principles of application of the conflict rule. The disputes caused by the doctrine of renvoi gave birth to a wealth of absolutely diverse arguments related to the entirely different aspects of the private international law. However, none of the approaches in favor of admitting the concept of renvoi has made it possible to provide a consistent and comprehensive substantiation for this institution. On the other hand, so far no compelling arguments have been presented that would allow the legal community to give up the institution of renvoi for lost. In this connection, it seems only justified to accept a statement made by L.A. Lunts who in general supported the application of renvoi that in terms of logic this issue can be handled in various ways. Moreover, in the view of this scholar, it is quite possible that the concept of renvoi will be applied selectively depending on the legal relationship in question.15 Trying to bring the basic lines of renvoi studies to a certain system we can identify two major groups of theories:16

· Theories based on the principles of sovereignty as one of the fundamentals of the private international law · Theories concerned with studying the subject of renvoi Theories Arising from the Principles of Sovereignty in the Private International Law The theories substantiating the application of renvoi on the basis of the principles of sovereignty in the private international law include the following: · doctrine of comity, · doctrine of sovereignty, · doctrine of the coordination of national legal systems. Each of the above theories has been subject to enough criticism in legal literature. In view of this, we do not think we should discuss the main ideas of these theories in detail, point to their deficiencies and criticize them from the viewpoint of legal technics. However, some general remarks are worth making. They concern mostly the main thesis of these theories, which consists in the statement that the private international law arises from sovereignty of states, which are primary participants in the international intercourse. The theories based on the principle of sovereignty now seem less relevant17 for a number of reasons. The two main reasons are the main current trends of the development of law. First, the non-viability of these theories is determined by the

15 L.A. Lunts. Cited by Collected Works, p. 349. 16 This distinction is based on the differentiation performed by B.I. Koltsov. Critical Analysis of Bourgeois Theories Concerning the Operation of Conflict Norms in the Private International Law. Thesis. Upheld in the Moscow State Institute of Foreign Relations in 1973. Deposited in the Library of the Moscow State Institute of Foreign Relations, p. 11. 17 This thesis applies not only to the renvoi doctrine, but also to other issues of the private international law, which these theories touch upon in some way.

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growing opinion that the private international law is a branch of the private law.18 That is why the problem of the division of fields of competence between different jurisdictions, based on the doctrine of state sovereignty, as an institution of the interstate intercourse, can no longer be regarded as the main issue of the private international law. Second, even if we define the subject of the private international law as the division of fields of competence of countries, nowadays the principle of unlimited state sovereignty is subject to significant limitations, giving way to the principles of equal treatment of participants in the international commercial practice19 and human rights protection principles,20 whose violation may lead to the most unfavorable consequences for the violating state.21 Thus, it seems that under current conditions the attempts to find roots of the renvoi institution in state sovereignty seem fruitless and faulty. However, the doctrine of coordination is of some interest. We think that it can help overcome the main theoretical difficulties caused by the contradiction between the renvoi doctrine and the requirements of formal logic. Indeed, while in the first case the object referred to is a foreign law as a whole, it is not quite clear why in the case of renvoi the object referred to is the substantive law of forum (legis fori). Such an arbitrary change in the scope of the notion «law of the state» is an obvious violation of the rules of formal logic.22 However, the coordination doctrine can substantiate such a resolution of the conflict-law issue, which will ensure the application of renvoi. According to the modern interpretation of this doctrine, the conflict rule operation mechanism is as follows: since a possibility of renvoi is envisaged in the conflict rule itself, it is quite natural that the judge, ex officio,

18 Sukhanov E.A. System of Private Law. Bulletin of the Moscow State University (MGU), Series 11, Law, 1994, No. 4, p. 26-30. 19 As Russian researchers of private international law point out, the principle of the limited state immunity (in international trade relations, state immunity is a category derived from state sovereignty) is incorporated in the draft of Russias Federal Law «On the Immunity of Foreign States» (Khlestova I.O. Issues of the Immunity of the State in Legislation and Contractual Practice of the Russian Federation. Problems of the Private International Law. Collection of Articles in Memory of Lazar Adolfovich Lunts, Moscow, 2000, p. 80. 20 The processes that led to the limitation of the sovereignty principle in favor of the principle of the respect and protection of human rights became especially intensive in the late 1980s and early 1990s, when such documents as the Paris Charter for Free Europe of November 21, 1990 were drafted and signed. The charter proclaimed a new era of democracy, peace and mankind and affirmed human dimension as the main benchmark in international relations (See Current International Law in three volumes, Moscow, 1996, pp. 42-46). 21 One example is Yugoslavia, whose violation of human rights in Kosovo was a formal pretext for NATOs military interference in 1999. 22 In the formal logic the term «scope of notion» means the plurality of things that are conceived in the notion (Kirillov V.V., Starchenko A.A. Logic. Moscow, Jurist Publishing House, 1998, p. 34). If, in the event of renvoi, the legis fori conflict rule refers to a foreign legal order, the «law of the state» is construed as its law of conflict and its substantive law, while in the analysis of the reference of a foreign conflict rule the notion «law of the state» is construed exclusively as the substantive law. If otherwise, it would be impossible to put an end to the continuous shifts from one legal order to another.

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pays primary attention to conflict rules of the state that he was referred to by the national conflict rule. In the event of subsequent renvoi, the judge will immediately accept it because this will look as a consistent position of two legal orders on the case in question. The main principle consists in that that the conflict rule of another state is not applied, while the judge only takes it into consideration and finds out foreign legislators opinion about the issue, which, in fact, is prescribed by the conflict rule of the law of forum.23 Theories Studying the Object of Reference As for the second group of theories studying the object of reference of the conflict rule, they include the following widespread theories: · English «foreign court» doctrine · Theory of unity of the law of conflict and the substantive law «Foreign Court» Doctrine Despite a number of positive aspects of the «foreign court» doctrine, which is based on the intention to apply foreign law in a way similar to that used by the courts for which this law is the national law, the theory is not free from significant deficiencies. The first such deficiency is a possibility of situations in which English courts have to express their opinion on issues that are not regulated in the legal system to which the English conflict rule refers them. Taking into consideration the extreme complexity of the renvoi problem, all the ambiguities of foreign legislation will be a difficult problem for the English judge. The best-known example of such problem encountered by an English judge in connection with renvoi is the Duke of Wellingtons case, in which an English judge had to chose the law to be applied to real property succession and decide whether the Spanish court could accept renvoi in the absence of any prescriptions in the Spanish law or court practice.24 The English court found itself in a similar situation (Re Estate of Christopher William Adams) in 1985, when the question of the acceptance of renvoi arose again despite the fact that the issue had already been settled in Spain legislatively.25 According to Article 12.2 of the Introductory Law to the Spanish Civil Code, the reference to the foreign law is understood as a reference to the substantive law, without taking into account the foreign laws references to laws other than the Spanish laws. By way of thorough examination of expert opinions about Spanish succession laws and the dominant doctrine, the court decided that the acceptance of renvoi and application of the Spanish law to the succession of property owned by an Englishman but located in Spain (according to the English law, the lex rei sitae conflict principle should have been applied) could lead to the splitting of the statute of succession (in Spain, succession of movable and immovable property is

23 Mayer P. Droit International Prive. Paris. 1998, p. 146. 24 Dicey and Morris. Op. Cit., p. 82. 25 See http:// web.onyxnet.co.uk/antony.anderson-onyxnet.co.uk./adams.htm.

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subject to lex patriae), which would be a violation of the basic principle of the Spanish law of succession, that is the principle of the unity of the statute of succession. So, the English judge decided that, under such conditions, the Spanish court would have been unable to apply renvoi.26 As a result, the English law was applied. Another argument against using the «foreign court» theory for the substantiation of the institution of renvoi is the fact that its viability is determined by its originality. Indeed, if the English conflict rule refers to a legal order that uses a similar doctrine, the «renvoi carrousel» will spin much faster because each legal order will predicate its decisions on the other.27 Theories Based on the Bnity of the Law of Conflict and Substantive Law As for advocates of theories based on the unity of the law of conflict and the substantive law, they argue that the object of reference is law as a whole, owing to the simple fact that law of a country is a uniform and arranged system in which all legal norms, without exception, are created to achieve the single purpose, that is the general and the best possible legal regulation of all legal relations associated with this particular legal system.28 It is the internal consistency and systemic

26 This case is an excellent example showing that even the legislative resolution of the renvoi issue cannot eliminate problems of the renvoi application. 27 Nonetheless, not all the conflict-law experts regard such a situation as pernicious for the «foreign court» doctrine. For instance, some German legal experts do not regard the «foreign court» doctrine as non-viable when it is applied by courts other than British courts. When modeling a situation that a German court can find itself in when it begins to apply the «foreign Court» doctrine for referring to the British law, G. Kegel concludes that the vicious circle could be avoided. His reasons are as follows: Since, for natural reasons, England knows no precedents for taking into consideration the «foreign court» doctrine in the German law, the English judge would have applied the German law because this is what the German judge would have done because of traditional prescriptions of the German law of conflict. As a result, the German court accepting the inverse «foreign court» doctrine will find grounds for the application of the German law. If, for some reasons, the English court begins to apply the English substantive law in such situations, the German court that accepts the «foreign court» doctrine will immediately follow the suit. The desired harmony of decisions will be achieved, as a result (Kegel G. Internationales Privatrecht. 7. Auflage. C.H. Beck. Muenchen. 1995. S. 289). However, such sophisms are products of a mind juggling with paradoxes rather than a sound scientific theory that can help resolve the renvoi problem all by itself, irrespective of the English courts position. In addition, such models do not take into account one circumstance which is important from the viewpoint of the English private international law: In England, precedents are created only as a result of the application of the English conflict rule because, owing to the peculiarities of the Anglo-American legal system, the English court can not create the foreign law (O. Kahn- Freund. General Problems of Private International Law. Leyden. 1976, p. 117.). Thus, the circumstance that the English court knows only the precedents of the application of the German law by the operation of double reference does not relieve the English court from the obligation to study the German law of conflict. An English judge that has discovered the application of the «foreign court» doctrine in the German law will have, most probably, to look for conflict resolution means other than the «foreign court» doctrine. 28 Ennektserus K. A Course of German Civil Law. Moscow, Yuridicheskaya Literature Publishing House, 1949. Volume 1, p. 217.

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interrelations that make it necessary to refer to conflict rules of a foreign state in order to take into account the actual will of the legislator in full (it is easy to draw parallels with the argumentation in favor of primary qualification according to the law of court, according to which the national conflict rule is permeated with categories of the national law which the legislator uses). If, as a result of the analysis of a foreign states conflict rule, it is established that the foreign legislators intention is to keep from regulation of such legal relation and admittance of appropriate competence of the legal order of the country of court, the court will have all reasons for resolving the dispute in accordance with the norms of the national substantive law. Such argumentation, based on faulty ideas about consistency and internal unity of all elements of legal systems, which can be achieved only in abstract models but are hardly part of reality, are, in essence, of a dogmatic nature and aimed at the substantiation of renvoi in order to extent the area of national law application as much as possible. The notion of a legal system as a uniform and harmonious system makes it possible, in its turn, to discover its similarity with the «national spirit» doctrine developed by the German historic law school. However, the ideas about the uniform «national spirit» as a primary source of law can be disproved by the absence of the subject. The entire course of historic development demonstrates the separation of the society and continuous struggle of various social groups, whose legal conscience is different more often than not.29 Moreover, a certain functional interdependence between conflict- and substantive-law norms is mentioned as an argument against theories based on the unity of the law of conflict and the substantive law. For instance, proceeding from the unilateral conflict rule prescribing to apply the legis fori substantive law, B.I. Koltsov arrives at a conclusion that the application of a unilateral conflict rule is actually equivalent to the application of the substantive-law of the country of court. Thus, according to B.I. Koltsov, in the case under consideration the conflict rule cannot exist without the substantive-law rule. As for the multilateral conflict rule, it is intended to resolve the conflict between two competing laws. However, if one of them, as the unilateral conflict rule example shows, is a substantive law, the conflicting law can never be a law other than a substantive law. Therefore, there are no grounds for taking foreign conflict rules into account.30 Russian Private International Law Doctrine We place the description of the Russian private international law doctrines position on renvoi into a separate chapter because of certain specifics of the approach used and considerable progress in the research of this institution. On the whole, the most prominent Russian conflict-law scholars attitude to the institution of renvoi can be characterized as positive. L.A. Lunts spoke in

29 Pokrovsky I.A. Main Problems of Civil Law. Moscow, Statute Publishing House. 1998, p. 69. 30 Koltsov B.I. Op. cit., p. 18.

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favor of the application of renvoi as follows: When resolving the issue of the admissibility of renvoi, it is necessary to proceed from the purposes of the Soviet law of conflict. These purposes include consolidation of peace and promotion of international contacts and international economic relations. These purposes dictate the application of the foreign law and, consequently, determine and limit the scope of the rights arising by virtue of the foreign laws, which is recognized by the Soviet state institutions. For this reason, when applying foreign law, the Soviet state institutions have no reasons to go further than the relevant foreign institutions do. If the Soviet conflict rule refers to the foreign law containing a reference to the Soviet law, then the Soviet law must be applied.31 Similar considerations are expressed by other Russian private international law theorists. For instance: S.B. Krylov wrote: «If the Soviet conflict rule refers to bourgeois law, we must apply it precisely and truly. However, if the foreign law refuses to regulate a particular issue, there are no grounds for extending the sphere of its application.»32 It was therefore concluded that the application of the foreign law in that case was not necessary for further development of international relations, that is it was not dictated by the purposes of the Russian private international law. The Russian conflict rule refers to the foreign law, which it regards as an effective law, while the foreign legal order proclaims its own norm as inapplicable to that particular legal relation. In other words, the foreign law actually proves itself to be ineffective. As a result of this circumstance, the conflict rule that referred the court to that law looses its substance. For this reason, the Soviet court applies the national substantive law.33 The last thesis deserves special attention. It is based on the idea that the Soviet conflict rule has practical significance only together with the substantive-law norm to which it refers.34 If the foreign law fails to provide such a norm, the conflict rule is actually ineffective. This seems to be a reasonable ground for the courts application of the national substantive law in the event of renvoi. Thus, the vicious circle arising from renvoi is avoided. At the same time, negative views of the institution of renvoi were also expressed in the Russian jurisprudence. Moreover, the institution of renvoi was characterized not only in negative terms, but also as a completely alien to the Soviet law of conflict. For instance, the doctoral thesis of B.I. Koltsov, who studied the institution of renvoi very thoroughly, characterizes the institution as a product of the bourgeois theoretical thought. Taking into account the historic context in which he wrote his doctoral thesis, we can characterize such approach as distinctly negative.35

31 Lunts L.A. Op. cit., p. 349. 32 Peretersky I.S., Krylov S.B. Private International Law. Moscow, Yuridicheskaya Literature Publishing House, 1959, p. 50. 33 Peretersky I.S., Krylov S.B. Op. cit., p. 50. 34 Lunts L.A. Op. cit., p. 188. 35 We believe that such polarity of views clearly demonstrates the multifaceted nature of the institution of renvoi.

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Contemporary Private International Law and the Institution of Renvoi Based on all the above, we can draw a conclusion that none of the theories can provide a comprehensive substantiation to the institution of renvoi because each of the doctrines gives only a partially satisfactory explanation and is hardly invulnerable to criticism. A similar conclusion can be drawn in respect of the arguments against the institution of renvoi: being important for the doctrine against which they are directed, they are unable to demonstrate the inconsistency of the institution of renvoi as such. It seems that the root cause of the inability to resolve the renvoi dispute is the level at which the problem is discussed: the issue of the admissibility of renvoi is discussed exclusively within the institution itself, without an appropriate study of its place in the private international law and examination of its adequacy for the private international law purposes and the conformity of the institution of renvoi with the idea of permissibility of foreign law application. It seems that the resolution of the issue of the purposes of the law of conflict, which allow courts to apply the foreign legislation and consider the will of another legislator, is the key to the resolution of the renvoi issue. Indeed, in tackling the renvoi problem, the Soviet private international law doctrine attached much importance to purposes. However, the Soviet private international law theory proved unable to disengage from the fight and get beyond the limits of the narrow national mentality, substantiating the application of renvoi by norms of the Soviet law of conflict. The use of renvoi to serve the purposes of the state was the worst of all for this theory, which became a weapon rather than an instrument for the resolution of many difficult problems of the private international law.36 At the same time, we must not forget about the continuous evolution of views on the nature of law in general and the nature of the private international law in particular. Today, the close relation between foreign law application and issues of sovereignty, which was regarded as the main principle of international relations at some phases of historic development, can no longer be used as a basis of contemporary private international law doctrines, because sovereignty is now subject to human rights principles. Hence, greater humanization of the private international law. In addition, today we can regard the view that the private international law is a branch of the private law as established. This is usually forgotten when abstract «reconciliation» of interests of legal orders or «capitulation» of national legal norms are discussed. The private nature of the private international law reveals itself in the fact that the behavior of legal subjects is not regulated by authoritative precepts: the state only secures the relations between legal subjects.37 What is especially

36 We can point out that the Faurgot case decision was doubtful from the viewpoint of its objectivity, because the Court of Appeals decided in favor of the State Treasury. It was the states financial interests that could be the decisive circumstance in favor of renvoi. 37 On the relationship between the private and public law see Pokrovsky I.A., Op. cit., pp. 40-41.

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important is that the conflict rule is only a way to choose the method of securing such relations. In view of this, the interests of the state are secondary as regards the interests of an individual. Therefore, the blind following of the conflict rule, which may frequently be only an ingrained form of old traditions, may be at variance with the interests of an individual. Since the private international law is a branch of the private law, we cannot define its purposes in isolation from interests of persons, whose interests it protects. In this context, we can regard as correct the thesis that the law of conflict, as a constituent part of the private international law, is intended to «provide such a legal order that they patterned their behavior on which is appropriate for their social environment.»38 The second purpose of the private international law, which is inseparably linked to the first purpose and the necessity arising from it, is to ensure the maximum possible harmony of court decisions (Entscheidungseinklang) as a priority purpose of the private international law. This idea is especially strong in Germany, where the law of conflict took shape under the significant influence of Savignys ideas.39 The inseparable link between finding a legal order, which must regulate relations between parties, and harmony of court decisions consists in that there can be only one legal order sought, while, given the ideal resolution of the law of conflict issue, decisions of all courts must be uniform irrespective of the place of legal examination.40 However, owing to the above dependence, the harmony of court decisions is only a consequence of finding a legal order uniform for all bodies engaged in the application of law. For this reason, we can hardly find any other ways for achieving such harmony except establishing methods for determining such a legal order. In light of such views on the private international law, we must not permit «mechanical attachment» of legal relations to various legal orders, if such attachment does not take into account the actual interests of parties. Similarly, we cannot accept any conflict rule if it does not take into account such interests of parties. Of course, the necessity to take into account parties interests should not be understood as the necessity to satisfy all parties involved, but rather as a need to resolve the dispute in accordance with the legal norms that constitute its legal framework in a way that would ensure that the court decision meets reasonable expectations of parties and takes all the factual situation into account.

38 Rauscher T. Internationales Privatrecht. Heidelberg. 1999, s. 12. 39 Rauscher T. Op. cit. S. 13. 40 The American doctrine of the private international law is based on a slightly different approach. For instance, the Restatement Second Conflict of Laws says about a possibility of renvoi in those cases, when it leads to a uniformity of court decisions, if such uniformity is the purpose of the relevant conflict rule (E. Scoles. Conflict of Laws. St. Paul. Minn. 1982, p. 70). Such formulation is probably linked to the «interested state» concept, which is central in the American private international law doctrine, what allows a deviation from the harmony of decisions if a state has a special interest in applying its conflict rules.

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Consequently, it is necessary to determine a method that will make it possible to achieve the purpose of the private international law in view of its current humanization and to secure its private law nature. This method must underlie conflict rules being developed and explain the choice of particular legal solutions by the legislator. It must also explain why the application of the foreign law is accepted in principle. In our opinion, the application of the closest-connection principle can become the main principle of the law of conflict. It seems that such an answer was formulated most clearly in the course of discussion about the institution of renvoi. For instance, A.B. Levitin denied the possibility of adopting renvoi based on its incompatibility with the closest-connection principle, which must determine a legal order that meets the above-stated requirements best. It is hardly possible to disagree with A.B. Levitin in essence. However, the mechanism of the closest-connection principle implementation, which he actually advocates, could hardly be regarded as valuable and adequate for it purpose.41 It would be more correct to say that, in a system of very formal connecting factors, the closest-connection principle can hardly be implemented in full. Lets take, for instance law of conflict factors connecting to the law of the country of incorporation or the principle place of business of seller under a purchase and sale contract, which are used in Article 166 of the Basics of Civil Legislation of the USSR and Union Republics.42 In his time, when commenting on the General Delivery Terms of COMECON (GDT COMECON, 1958), which were adopted in 1958 and contained a similar rule, M.M. Boguslavsky characterized such reference rule as the only correct and right one, because the «center of gravity of each foreign trade transaction is in the fulfillment of a sellers obligations, which consist mostly in the timely delivery of goods of appropriate quality.»43 Thus, a close connection between a legal relationship and the law selected with the help of the conflict rule is obvious. However, it will be broken in the event of additional circumstances, such as the execution of a contract in a third country, execution of a contract in favor of a third party or other circumstances transferring a contract from the country of a seller. In such cases, the contemporary Russian law of conflict is unable to ensure the choice of the law implied by parties when they executed a contract. In fact, only the latest legislative acts dedicated to the private international law implement the closest-connection principle in full. To resolve this problem in finding a legal order with which a legal relationship is connected most closely,

41 It is maintained that, since the conflict rule is intended to determine a type of law that is most closely connected to a legal relationship, the only possible law is the law of substance, while the foreign element, in connection with which the question of the applicable law arose, can emerge only in connection with the law of substance, rather than the law of conflict. (Levitin A.B. Disputable Issues of Private International Law (Renvoi), VIYuN Proceedings. Issue 2 (6), Moscow, 1957, p. 70) 42 Basics of Civil Legislation of the USSR and Union Republics. Bulletin of Soviets of Peoples Deputies and the USSR Supreme Soviet. June 21, 1991, No. 26, p. 733. 43 Boguslabsky M.M. Regal Regulation of Purchases and Sales in Relations between Socialist Countries. Issues of Private International law. Moscow, 1960, p. 58.

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current laws include a general provision prevailing over other conflict rules and allowing sufficient flexibility of conflict-law regulation practically in any possible situations. For instance, Article 15 of Switzerlands Law on the Private International Law of 1987 stipulates that, in exceptional cases, when all the circumstances indicate that the case has only an insignificant contact with the legal order indicated in the conflict rule of the relevant Law, the legislation of a country which has the closest relationship with the relevant legal relationship will apply.44 A similar provision is contained in Book 10 of Quebecs Civil Code, which came into effect in 1994. Article 3080 stipulates that, in exclusive cases, when exceptional circumstances make it evident that the situation in question is only distantly related with the law specified in that Book and has a more close relationship with the law of another country, that law referred to by this Book must not be applied.45 The natural consequence of the closest-connection principle application is the limitation of the application of renvoi because it is no longer needed to continue looking for a competent legal order after the achievement of the conflict-law regulation purpose, since a legal order that has the closest relationship with the particular legal relation is already found. Thus, renvoi is considered as contradicting the purport of the German conflict rule, which determines the applicable law on the basis of the closest-connection principle, and must not be applied for this reason.46 In this connection, quite explainable is the abandonment 46 or limitation47 of the renvoi application in conflict-law regulation, which is stipulated by the legal acts under consideration. Conclusion of international law of conflict agreements, which can eliminate conflicts that cause the renvoi problem, is frequently discussed.48 The availability of uniform connecting factors also leads to the harmonization of court decisions. However, it seems that connecting factors established by international agreements are based on considerations similar to those that establish connecting factors on the national level. Therefore, the basic concept of an international act dedicated to conflict law issues must be identical to those underlying national laws that accept the closest-connection principle as the main conflict law principle. If an international agreement is unable to ensure the attainment of the purpose of the private international law, a court will have to use legal and technical techniques that will enable it to achieve just results. 44 The American Journal of Comparative Law (Volume 37), Number 2, Spring 1989. 45 Quebecs Civil Code. Moscow, Statute Publishing House, 1999, p. 451. 46 Palandt. Buergerliches Gesetzbunch. Muenchen. 1999, seiten 2208-2209. 47 According to Article 3080 of Quebecs Civil Code, when the foreign law must be applied, the law to be applied will be a foreign countrys law except its conflict-law rules. See Quebecs Civil Code. Moscow, Statute Publishing House, 1999, p. 451. 48 According to Article 13 of Switzerlands Law on the Private International Law, all foreign law provisions, which must be applied from the viewpoint of such law, must be applied. However, Renvoi is permissible only in cases when it is directly envisaged in the Swiss legislation. At the same time, according to Article 14, renvoi is permissible in the event of consideration of Private- and Family-Statute issues (See The American Journal of Comparative Law (Volume 37), Number 2, Spring 1989, p. 199).

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One confirmation of the above is the fact that an international treaty does not eliminate renvoi in those cases when a court decides that the application of connecting factors envisaged in the agreement may produce unjust results that is the results that do not meet the above-stated purpose of the private international law. In such case, court may apply the conflict rule of that state, whose law is referred to in the international agreement, provided that such conflict rule will be a sufficient basis for achieving more just results, from the viewpoint of court. One such example is Americas In Re Estate of Wright precedent. A question of the applicable law arose in a 1994 case concerning wills, succession and trusteeship. According to case circumstances, a US citizen domiciled in Switzerland, settled his property in favor of his second wife and children born from her, while subjecting his will to the legislation of the state of Maine. Deprived of their share, his children from the first marriage took legal action and demanded to recognize the will as invalid in the part that concerns their statutory share in accordance with the Swiss legislation. However, in accordance with the principle of free will, the will was valid from the viewpoint of the American legislation. At the same time, there was an 1850 Swiss-American agreement that regulated the applicable law issues. According to the provisions of this agreement, all property succession issues must be resolved in court in accordance with the legislation of a country in which the property is located, which meant the application of the Swiss law in this case. A question about the meaning of the notion «legislation of the country» then arose. The court conducting legal investigation concluded that the words should be understood as the entire legal order of a country. After resorting Switzerlands law of conflict, the court established that Article 90 of Switzerlands Law on the Private International Law allowed a foreigner to subject his will to his national law. As a result, the will was declared as valid. When doing this, the court suggested that the agreement should be analyzed from the viewpoint of its purposes, which, in the opinion of the court, consisted in granting equal status to citizens of each country, compared to the status of citizens of the country of their residence. Obviously, a decision discriminating a US citizen in rights, compared to other foreigners domiciled in Switzerland, would have contradicted the purposes of the agreement.49 Apart from some doubts about the courts competence to settle this case, we can point out that the court did not limit itself to only applying the connecting factor of the agreement, but also applied an additional Swiss conflict rule and renvoi in order to achieve the most just, in the opinion of the court, result. Thus, it is evident that simple unification of conflict rules will not make it possible to resolve problems of the private international law and ensure the achievement of purposes of this branch of law. The only way to ensure just and uniform decisions is the widest possible application of the closest-connection principle. However, the closest-connection principle is not implemented in full in all legal systems. In this connection, there arises a question about the possible 49 Mandelstam A.N. The Hague Conferences on the Codification of Private International Law. St. Petersburg, 1900, Volume 1, p. 238.

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extent of the renvoi doctrine application in order to achieve purposes of the contemporary private international law. Moreover, since we deny the public law nature of the private international law, which is sometimes pointed to in legal literature,50 we regard the application of conflict rules of a foreign state by court as admissible. Moreover, if we do recognize the public law nature of conflict rules, the trend revealing itself in the latest laws on the private international law makes it possible not to limit the application of the foreign law only to the field of theprivate law.51 Renvoi Principle Application Rules from the Viewpoint of Private International Law Having defined the purpose of private international law as finding a statute that is most closely connected to a legal relation, we must examine how well the renvoi doctrine can serve such purpose. As we have already noted above, renvoi cannot be applied in legal systems that use the closest-connection principle as the main law of conflict principle. As for legal systems that have not introduced this principle into their law of conflict, renvoi, as well as reference to a third law, can help a judge that can not find conflict rules competent to regulate a particular legal relation in the national legislation apply this principle (or a connecting factor of another sort to a legal order that is most closely connected to a particular legal relation) in order to resolve case in the most appropriate way. Thus, in the above-considered situation with conflict-law regulation of purchase and sale contracts in the Russian law, the only possibility that the system of Russian law of conflict provisions provide to court is the application of renvoi (reference to a third legal order) in cases when foreign conflict rules refer to a legal order connected to that legal relation most closely. There arises a question about possible obstacles to such «borrowing» of a foreign law of conflict principle. Obviously, the only possible obstacle is a direct prohibition to apply renvoi in any form or statements similar to those contained in the Introductory Law to the German Civil Code, according to which renvoi is acceptable as long as it does not contradict the sense of the conflict rule.52 Apart from the above example of renvois contradiction to the sense of the conflict rule that determines the applicable law on the basis of the closest-connection principle, renvoi can be regarded as incompatible with the conflict rule in those cases when law is selected by the parties of a contract, or when there is an alternative connecting factor. However, it is possible to resort to renvoi if a judge cannot find a competent law for dispute resolution.53 Besides, in view of the flexibility and vagueness of

50 The American Journal of Comparative Law, Volume 43, Number 1, Winter 1995, pp. 85-87. 51 Brun M.I. Introduction into Private International Law. Petrograd, 1915, p. 79. 52 According to Article 3 of Switzerlands Law on Private International Law, the application of a foreign law provision can not be excluded owing merely to the fact that it has a public-law nature (The American Journal of Comparative Law (Volume 37) Number 2. Spring 1989, p. 198. 53 Introductory Law to the German Civil Code. German Law. Part 1, Moscow, 1998, p. 501.

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the words «contradiction with the sense of the reference», there may be additional criteria for the rejection of renvoi. In addition, obstacles to renvoi application may lie in the area of the observation of the fundamentals of the national law and the limitations on the application of the foreign law connected with the national public policy, which frequently concur. For instance, in 1987 the German Federal Court refused to accept renvoi from the Italian law on the basis of the above-considered non-conformity of renvoi to the sense of the reference, though in that particular case renvoi should have been declined since the connecting factor of the Italian conflict rule was incompatible with the German public policy,54 because the Italian conflict rule determined the applicable law on the basis of the husbands national law. Such connecting factor contradicts the principle of the equality of man and woman, which is the German law, Germanys Constitution and many international documents. In May 1999, renvoi was rejected by Spains Supreme Court for the reason that the acceptance of renvoi will split the succession statute, which is incompatible with the single succession statute principle, what is the main element of Spains succession law. This decision was made despite the fact that the Spanish law expressly envisaged renvoi. It seems that there are no other obstacles to renvoi adoption at present. In addition, we probably have to agree with the statement that, when accepting the reference to a third countrys law, we must take into account the public policy of the country to which the conflict rule of forum refers to.55 This conclusion follows from the necessity to apply the foreign law as precisely as possible. As for the question about whether a foreign states public order should be taken into account, various opinions can be expressed.56 The application of renvoi can be envisaged either by an international convention or by a law to which the conflict rule of forum refers to. In the first case, the application of the renvoi doctrine is incorporated in a number of international documents, including those that concern fields other than order private law, where renvoi is a usual instrument for conflict resolution. For instance, Article 42 of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States (Washington Convention) envisages the application of the law of country participating in an investment dispute as an applicable law, including its law of conflict. Some writers specify that, in the event what case is considered by an international court or arbitration court, the very possibility of renvoi is absent because there is no lex fori as such, but reference to a legal system of another country is still possible.57 54 Palandt. Op. cit., seiten 2208-2209. 55 Heldrich A. Erfahrungen mit dem Neuen Neutschen Gesetz über das IPR. Österreichs Stellung heute in Europarecht, IPR und Rechtsvergleichung. Wien. 1989, s. 114. 56 Niederer W. Einfuehrung in die Allgemeinen Lehren des Internationales Privatrechts. Zuerich. 1950, s. 304. 57 W. Niederer, for instance, denied the necessity to take foreign public policy rules into account when accepting renvoi (Ibid, s. 304).

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In the second case, the obligation to apply foreign conflict rules may be incorporated in a foreign law itself. For instance, when defining the law governing the formalization of security interests, Section 9 of the Uniform Commercial Code of the United States (Articles 9-103), which regulates transaction security issues, provides various connecting factors and, at the same time, prescribes to use conflict rules of sate, which conflict factors contained in the Uniform Commercial Code refer to.58 In addition, a possibility of renvoi can arise during the implementation of international agreement prescription in the national legislation. This happened after the adoption of national bill-of-exchange laws on the basis of the Geneva Convention aimed at the resolution of some conflicts between the 1930 laws on promissory notes and bills of exchange. In accordance with this convention, a persons ability to assume bill-of-exchange obligations is determined by that persons national law, unless the national law defines his «bill-of-exchange capacity» in accordance with another law, which must be applied in this case. Such rules, for instance, are contained in the Russian59 and German60 legislation. A third countrys court will hardly have reasonable grounds for rejecting such references. On the basis of such considerations, it is possible to formulate the following rules of the renvoi application or, more precisely, renvoi can be applied in the event of the simultaneous presence of the following circumstances: · Law of conflict of a country of forum does not contain the closest-connection principle as a guiding conflict law principle. · Law referred to by the conflict rule of a country of forum has insignificant connection with the legal relation in question. · Conflict rules of a foreign law provide for the closest-connection principle or indicate a competent legal order in any other way, or if an international agreement or a particular foreign legal order directly point to the application of its conflict rule. · Law of a country of forum contains no obstacles to renvoi application (direct prohibition, inconsistency of renvoi application with public policy rules of a country of forum). On the basis of the rules formulated, we can advance an idea about the necessity to establish a specific «hierarchy of connecting factors», which must play a decisive roles in court trying to determine whether it should take into account prescriptions of a foreign conflict rule. The hierarchy consists in that the rule ensuring the finding of a legal order competent to regulate the dispute examined in court (we should remind that the «competence» of a law depends on how much the search for such law was conducted in accordance with the purposes of the private international law) must have precedence irrespective of which legal order provides such rule. Moreover, the top priority in such hierarchy must be given to a flexible connecting

58 Ibid, s. 276. 59 Uniform Commercial Code of the United States. Moscow, Statute Publishing House, 1998, p. 345-348. 60 Regulation for the Bill of Exchange and Promissory Notes. Collection of Laws of the Workers and Peasants Government of the USSR. August 21, 1937, No. 52, p. 221.

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factor referring to that law which is most closely connected with the disputable legal relation. Such hierarchy in action can be illustrated by the following example: in 1995 the Court of Appeals of the State of Maryland revised its traditional approach to contractual relations in the case American Motorists Inc. Co. Vs. ARTRA Group Inc. The suit was brought in the State of Maryland; the first-instance court applied its law of conflict, which contained a reference to the law of the state of the contract conclusion. (lex loci solutionis), that is law of the State of Illinois. However, Illinois conflict rules contained a flexible reference based on the closest-connection principle (it was taken from the Restatement Second). So, the Court of Maryland concluded that the legal relations in question showed the closest connection with Maryland, while Illinois legal order kept from the resolution of that dispute. The ambiguity of such decision was confirmed by the outcome of the case, which passed through three instances. However, the decision was confirmed by the Court of Appeals of the state, which formulated conditions for the renvoi application to disputes arising from contractual relations: · The relation in question shows the closest connection with Maryland, · The court of the state, to which Marylands conflict rule refers, refuses to apply its law and applies Marylands law instead.61 All the above allows us to draw a conclusion that Marylands courts recognize only renvoi and refuse to extend the same principles to references to a third countrys law. Such approach can hardly be justified because the very essence of the closest- connection principle demonstrates its unboundness by any formal conditions. Nonetheless, this decision can serve as an example of how court accepting the principle of the connecting factor hierarchy must act. We believe, such hierarchy is universal in its nature. In this connection, the demonstrated operation of the institution of renvoi based on the hierarchy of connecting factors can be applied to all special legal relations arising within the framework of the private international law, be they the conflict law regulation of law-of-torts relations, search for a property statute or definition of lex personalis of an individual, or any other institution. It seems that fixing the renvoi application by law is possible only until that time when the legislator shows enough resolution to introduce a flexible conflict law principle of the closest connection as the main conflict law principle. We also believe that the renvoi rules can be formulated in the most general form, in order to offset the effect of the closest-connection principle. We can agree with the argument that the renvoi application must depend on particular circumstances.62 The issue of the necessity to make a legislative decision on the acceptability of renvoi was nearly resolved in 1989-1990 in the Draft Law on the Private International Law and International Civil Procedure. Article 4 of this Draft Law provided for renvoi and reference to a third countrys law. Moreover, the area of their application was much wider as compared with previously taken approaches.

61 Law on Bills of Exchange. // German Law, Part III, Moscow, Statute Publishing House, 1999, p. 125. 62 The American Journal of Comparative Law, Volume 44, Number 2, Spring 1996, pp. 182-185.

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In particular, renvoi was allowed practically in all cases, except the situations when parties to a contract specified the applicable law or if a contract gave grounds to believe that its parties intended to subject their relations to that foreign law which must be applied in accordance with the provisions of this law.63 It seems that this flexible provision could ensure the renvoi doctrines ability to perform the function of finding a law that must be applied, because the closest-connection principle application was still subsidiary, which means that the closest-connection principle can be applied only if the application of the main connecting factors failed to help find a competent legal order. The only adjustment needed to ensure its adequate application was to envisage that renvoi is permissible if the conflict rules of a foreign state ensure the finding of a legal order that is most closely connected to the legal relation in question. We think that in the absence of such provision, renvoi can become a convenient means of rejecting the application of the foreign law. As long as legislation has no prescriptions regarding the renvoi principle, the problem must be resolved at the discretion of courts on the basis of the above rules. In addition, we must now admit that there is no difference between renvoi and reference to a third law, which now perform the same compensating function, that is the function of compensating for the insufficient application of the closest-connection principle. In view of this, it will be unreasonable to distinguish between these two doctrines from either the viewpoint of the relations between sovereign states or the viewpoint of the advocates of the widest possible application of national laws. In view of the above arguments, the approach taken by the authors of Part 3 of Russias Civil Code in order to achieve purposes of the private international law seems incorrect. The draft of Part 3 published in 1996 limits the application of renvoi to the following three cases: according to Article 1230 of the draft, any reference to the foreign law must be regarded as reference to the substantive law of the relevant country rather than reference to its law of conflict, except cases envisaged in that article. This article envisages the following cases in which renvoi can be applied: Article 1233 which determines lex personalis of a natural person, Article 1235 which determines the law that defines the legal capacity of foreign citizens and stateless persons, and Article 1239 which determines the law regulating tutorship and guardianship relations.64 At the same time, the closest-connection principle is still subject to other conflict rules and has only an auxiliary function. The closest-connection principle is intended to be applied only in those cases when connecting factors contained in the law do not help find a law to be applied. Under conditions of a limited application of the closest-connection principle, such approach to the renvoi problem seems to be unjustified and ill-founded. It only demonstrates the mechanistic following of the tradition. Renvoi is established 63 Fedoseeva G. Private International Law. Moscow, Ostozhye Publishing House, 1999, pp. 101. 64 Private International Law: Current Problems, Moscow, Russian Academy of Sciences, IgiP, 1994, p. 462. 65 Ivanov G.A. Romanova S.M. Discussion of Part 3 of the Civil Code: Private International Law. Zakonodatelstvo, 1997. No. 4.

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in that area of relations where it is interpreted most widely. There was neither critical analysis of the international experience nor any attempts to revise the renvoi doctrine based on new realities. As a result, the approach implemented in the draft has deficiencies that could have been eliminated if the most up-to-date developments in this area had been taken into account.65

66 Unfortunately, more recent drafts, dated December 1998, are not yet published. However, they do not provide for the wide application of the closest-connection principle either, and limit the application of renvoi to the determination of the civil-law status of a natural person. In fact, they assume the approach taken in the first draft with the only difference that they use more rational legal techniques.

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HISTORY OF THE OFFICIAL PUBLICATION OF THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (VIENNA, 1980) IN THE RUSSIAN FEDERATION IN THE CONTEXT OF APPLICATION OF INTERNATIONAL TREATIES IN RUSSIA

A.I. Muranov* The purpose of this article is to shed some light upon the history of the official publication of the United Nations Convention on Contracts for the International Sale of Goods (hereafter the Convention) in Russia. This quite remarkable though somewhat technical issue will be set forth in the context of the dependence of the Convention application on its official publication. It will also illustrate certain rather serious problems relating to the practical implementation of international treaties in Russia. The history of the official publication of the Convention in Russia is quite instructive. It mirrors the numerous problems related to the public release of the international treaties texts in Russia which have not yet been ultimately resolved. These include, among others, delays with publication or even failure to publish, the quality of published texts and the impact of availability or absence of the official publication on the applicability of a particular treaty. It should be noted at the outset that our focus is on the publication of the Convention in official Russian domestic sources but not in editions of international organizations. In particular, we should disregard the publication of the Convention in the UN edition Konferentsiya Organizatsii Obedinennykh Natsiy po dogovoram mezhdunarodnoy kupli-prodazhi tovarov. Vena, 10 marta 11 aprelya 1980 goda. Ofitsialnye otchety. Documenty Konferentsii i kratkie otchety plenarnykh zasedaniy i zasedaniy glavnykh komitetov published in New York in

* Alexandre I. Muranov Monastyrsky, Zyuba, Semenov & Partners Law Firm (www.mzs.ru), Candidate of Jurisprudence (Ph.D.), Professor of the Department of Private International and Civil Law, Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of Russia (www.muranov.com).

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19811 or the text in the edition Komissiya Organizatsii Obedinennykh Natsiy po Pravu Mezhdunarodnoy Torgovli. Ezhegodnik. Tom XI: 1980 god (United Nations Commission on International Trade Law. Yearbook. Volume XI: 1980), issued in New York in 1982. Obviously, if the publication of the text of the Convention in the above stated editions were considered to be its official release in Russia, the discourse discussed below would be superfluous. As we know, the Convention is an international agreement laying down universal regulations governing contracts for the international sale of goods. The Convention has struck a compromise between the approaches of continental law and common law and has been universally recognized: as of 1 January 2002 it was effective in 58 nations whose overall share in international trade exceeds two- thirds, and the number of contracting states keeps growing. These factors make the Convention a unique legal instrument without precedent in juridical history. The Soviet Union delegates took part in the United Nations Conference on Contracts for the International Sale of Goods which adopted the Convention. However, the USSR did not sign the Convention there and then. It was only ten years later, on 23 May 1990, that the USSR Verkhovny Sovet (Supreme Council) passed the Resolution On the Accession of the Union of Soviet Socialist Republics to the UN Convention on Contracts for the International Sale of Goods No 1511- I. The Resolution was published as item 428 in the official edition Vedomosti Sezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR (Gazette of the Congress of the Peoples Deputies of the USSR and the Supreme Council of the USSR), No 23 of 6 June 1990. The reason for the Soviet Union belated accession to the Convention is that some of the USSR authorities saw no sense in joining the Convention before its major trade partners did. Accordingly, those authorities put accession at the top of their agenda only in the late eighties, i.e. after the Convention had taken effect in the USA, France, Italy, Finland and some other nations. The instruments of accession of the USSR to the Convention were deposited with the Secretary-General of the UN on 16 August 1990. Accordingly, the Convention took effect for the USSR on 1 September 1991 by virtue of para. 2 of Article 99 of the Convention which stipulates: When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.

1 A UN publication A/CONF.97/19. It was released on the market under number R.81.IV.3. In English vide: United Nations Conference on Contracts for the International Sale of Goods. Vienna, 10 March 11 April 1980. Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and the Meetings of the Main Committees (New York, 1981), a UN publication A/CONF.97/19.

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Part 1 of Article 5 of the USSR Law On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of Peoples Deputies of the USSR, the Supreme Council of the USSR and Their Bodies No 307-I of 31 July 19892 which was effective at the time stipulated: International treaties which have entered into force for the USSR, concluded on behalf of the USSR and ratified by the Supreme Council of the USSR, shall, upon submission by the USSR Ministry of Foreign Affairs, be published in Vedomosti Sezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR. Further, Article 25 of the USSR Law On the Procedure for Conclusion, Performance and Denunciation of International Treaties of the USSR No 7770-IX of 6 July 19783 established that International treaties, concluded on behalf of the Union of SSR which have entered into force for the USSR and the resolutions on signing of which were passed by the Presidium of the Supreme Council of the USSR, international treaties of the USSR concluded on behalf of the Presidium of the Supreme Council of the USSR, ratified treaties and treaties acceded to in accordance with the resolutions of the Presidium of the Supreme Council of the USSR shall, upon submission by the USSR Ministry of Foreign Affairs, be published in Vedomosti Verkhovnogo Soveta SSSR [Gazette of the Supreme Council of the USSR]. International treaties concluded on behalf of the USSR which have entered into force for the USSR and the resolutions on signing of which were passed by the Council of Ministers of the USSR, treaties concluded on behalf of the Government of the USSR which are not subject to ratification, treaties acceded to in accordance with the resolutions of the Council of Ministers of the USSR shall, upon submission by the USSR Ministry of Foreign Affairs, be published in Sobranie postanovleniy Pravitelstva SSSR [Collection of the Resolutions of the Government of the USSR]. International treaties of the USSR, authentic texts of which are in foreign languages, shall be published in one of such languages along with an official translation into the Russian language. The procedure for publication of international treaties of the USSR of interdepartmental nature shall be determined by the Council of Ministers of the USSR. It is obvious that the Convention should have been published in the Gazette of the Congress of Peoples Deputies of the USSR and of the Supreme Council of the USSR (publication of which began in June 1989 replacing Vedomosti Verkhovnogo Soveta Soyuza Sovetskikh Sotsialisticheskikh Respublik (Gazette of the Supreme Council of the Union of Soviet Socialist Republics)), and not in

2 Vedomosti Sezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR (Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR), 1989, ¹ 9, item 205. 3 Vedomosti Verkhovnogo Soveta SSSR (Gazette of the Supreme Council of the USSR), 1978, No 28, item 439.

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Sobranie postanovleniy Pravitelstva Soyuza Sovetskikh Sotsialisticheskikh Respublik (Collection of Resolutions of the Government of the Union of Soviet Socialist Republics). Nevertheless, in 1991 the Convention appeared neither in the Gazette of the Congress of Peoples Deputies of the USSR and of the Supreme Council of the USSR nor in any other official edition of the USSR or Russia. There is no doubt that the publication of the Convention in the Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR (as of issue 41, 1991, its name was changed to Vedomosti Verkhovnogo Soveta SSSR (Gazette of the Supreme Council of the USSR)) was prevented by the fall of the USSR in December 1991. As a matter of fact, one ought to give due recognition to the Office for Publication of Acts of the Secretariat of the Supreme Council as the Gazette publisher: all of its 52 issues for 1991 were released, the final edition bearing the annual indicator, the last Decrees of the President of the USSR and the notice on discontinuance of the Gazette publication in connection with the abolition of the USSR Supreme Council. This evidently means that the official publication of the Convention in 1991 did not occur purely for certain technical reasons rather than by the omission of persons responsible for publications. As is well known, after the USSR had ceased to exist, the Russian Federation continued to perform the rights and fulfil the obligations following from the international agreements concluded by the USSR.4 Accordingly, the Convention continued to be effective for the Russian Federation. Hence the issue of its official publication in Russia continued to be topical. Nevertheless, after 1991 the Convention was neither published in Vedomosti Sezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR5 (Gazette of the Congress of Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR)6 nor in Sobranie postanovleniy Pravitelstva Rossiyskoy Sovetskoy Federativnoy Sotsialisticheskoy Respubliki (Collection of Resolutions of the Government of the Russian Soviet Federative Socialist Republic), issued through out 1991. Further, it was neither published in Sobranie postanovleniy Pravitelstva Rossiyskoy Federatsii (Collection of the Resolutions of the Government of the Russian Federation), issued in 1992 until July, nor in Sobranie aktov Prezidenta i Pravitelstva Rossiyskoy Federatsii (Collection of Acts of the President and the Government of the Russian Federation), published subsequently from July 1992 through April 1994. Similarly, up until now the Convention has not been published in official continuing editions such as Byulleten mezhdunarodnykh dogovorov (Bulletin of International Treaties) published from March 1993,

4 Note of the Ministry of Foreign Affairs of the Russian Federation to the Heads of Diplomatic Representations of 13 January 1992. Diplomaticheskiy Vestnik (Diplomatic Herald), 1992, No 2-3, p. 34. 5 The Russian Soviet Federative Socialist Republic. 6 Which as of issue No 6, 1992, was renamed to Vedomosti Sezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoy Federatsii (Gazette of the Congress of Peoples Deputies of the Russian Federation and of the Supreme Council of the Russian Federation). It was published in both 1992 and 1993. In 1993, however, its release was interrupted.

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and Sobranie zakonodatelstva Rossiyskoy Federatsii (Collection of Legislation of the Russian Federation) published from May 1994. However, it should be pointed out that the Convention was published in one of the departmental editions, namely in Vestnik Vysshego arbitrazhnogo suda (Herald of the Higher Arbitrazh Court of the Russian Federation),7 No 1 of 1994.8 The fact of the latter is undoubtedly of some importance in clarifying the issue of the official publication of the Convention in Russia. However, two essential circumstances prevent treating the publication of the Convention in the Herald of the Higher Arbitrazh Court of the Russian Federation as the full value official publication in Russia. Firstly, this publication lacks official status. The Herald itself and the Russian regulatory acts that are currently in force indicate only that it is the edition of the Higher Arbitrazh Court of Russia but its official character is not mentioned anywhere. Considering that under Russian law stare decisis doctrine is not applicable, this fact is not at all surprising. Secondly, the Herald is of a departmental nature. Does this mean that there is no official publication of the Convention in the Russian Federation? Not at all. In 1994, the publishing house Mezhdunarodnye Otnosheniya (International Relations) released in Moscow a book entitled Sbornik mezhdunarodnykh dogovorov SSSR i Rossiyskoy Federatsii. Vypusk XLVII. Mezhdunarodnye dogovory, zaklyuchennye SSSR i vstupivshie v silu s 1 yanvarya po 31 dekabrya 1991 goda, kotorye v nastoyashchee vremya yavlyayutsya dogovorami Rossiyskoy Federatsii kak gosudarstva prodolzhatelya Soyuza SSR (Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII. International Treaties Concluded by the USSR which Became Effective from 1 January through 31 December 1991 and are at Present Treaties of the Russian Federation as the Successor State of the Union of SSR). This Collection contains the text of the Convention on pages 335-357 and the following note is printed on the last page: Official and Documentary Edition. Moreover, it was published under the auspices of the Ministry of Foreign Affairs of the Russian Federation. Besides, this book, as one can see from its title, is volume XLVII of the special series of collections of international treaties of the USSR (published since the 1920s) the last issue published. Finally, one should take into account the fact that the book was published by a state-owned publisher. It appears that today the text of the Convention in the said edition can be considered as the only official and authoritative one. It should be noted that the publication was not of a departmental nature; one cannot allege that the reference in this book to the Russian Ministry of Foreign Affairs attaches departmental status to it. 7 Russian arbitrazh courts are the state judicial authorities and have nothing in common with arbitration tribunals. The Higher Arbitrazh Court of Russia is a top judicial authority in the system of the state arbitrazh courts in Russia which adjudicate private and administrative disputes of commercial and economic nature between legal entities and/or natural persons acting as entrepreneurs. 8 As to the editions of the other Russian higher judicial authorities, the Convention has never been published therein.

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However, this does not mean that the publication in question is an ideal one. Firstly, there is insufficient clarity regarding the status of the series of collections of international treaties of the USSR within which the book in question was published. For unknown reasons the note regarding the official status of the publications is not present in all volumes of this series. Secondly, the book was published in 500 copies only. Does one need to explain that this is an insignificant number for Russia? Finally, the book was not distributed through subscription but was on free sale (though it is quite likely that it was purchased by certain major libraries). It is obvious that today it is a bibliographical rarity. If one compares it with the Bulletin of International Treaties, to which anyone could subscribe and which was published in about 2,000 to 3,000 copies, the advantages of the latter are indisputable. Thirdly, the text of the Convention in the book in question contains at least two serious misprints (to say nothing of some minor inconsistencies with the text approved by the UN conference). Thus, for instance, instead of the Russian term àêöåïò (acceptance) in Article 12 of the Convention there is the word àêöåíò (accent). Instead of the Russian notion ïîñëåäñòâèå (consequence) in Article 74 there is the word äîñëåäñòâèå (additional inquest). However, after the blunders in publications, for instance, of the Federal Law On Joint Stock Companies No 208-FZ of 26 December 1995,9 and of the Tax Code of the Russian Federation (Part One) No 146-FZ of 31 July 1998,10 in which the number of errors increased by order of magnitude, the errors in the 1994 text of the Convention are not surprising, given the previous record of obvious inaccuracies in the mentioned series of collections of the USSR international treaties. Deviating from the main purpose of the present article, it should be noted that the Russian text of the Convention suffers from a kind of evil fate. It is well known that Article 68 of the official Russian text of the Convention adopted by the 1980 Conference11 through technical omission failed to incorporate some provisions which exist in the English and French texts.12 There are also other 9 Rossiyskaya Gazeta (Russian Newspaper), 29 December 1995; Sobranie zakonodatelstva Rossiyskoy Federatsii (Collection of Legislation of the Russian Federation), 1996, No 1, item 1. 10 Rossiyskaya Gazeta, 6 August 1998; Collection of Legislation of the Russian Federation, 1998, No 31, item 3824. The number of errors in the Code was so great that it was necessary to adopt separate Federal Law On Introduction of Amendments and Additions to Part One of the Tax Code of the Russian Federation No 154-FZ of 9 July 1999 which prescribed publishing the text of the Code once again mutatis mutandis (Collection of Legislation of the Russian Federation, 1999, No 28, item 3487). 11 Konferentsiya Organizatsii Obedinennykh Natsiy po dogovoram mezhdunarodnoy kupli-prodazhi tovarov. Vena, 10 marta 11 aprelya 1980 goda. Ofitsialnye otchety. Documenty Konferentsii i kratkie otchety plenarnykh zasedaniy i zasedaniy glavnykh komitetov (United Nations Conference on Contracts for the International Sale of Goods. Vienna, 10 March 11 April 1980. Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and the Meetings of the Main Committees), p. 216. 12 Venskaya konventsiya o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov. Kommentariy (Vienna Convention on Contracts for the International Sale of Goods. Commentary). Moscow, 1994, p. 236.

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discrepancies in the official Russian text as compared to the English one. In addition, the official Russian text of the Convention adopted by the 1980 Conference contains a number of grammar and punctuation errors. Finally, different texts published in Russia are not uniform either (although in most cases it is a matter of minor discrepancies). Suffice it to say that even in the first authoritative Russian commentary on the Convention the text of the Convention provided once again at the end of the commentary differs from the text commented.13 A detailed analysis of all the above points could well constitute a topic for a separate study. Such a study would not be redundant for Russian law, as an important international treaty is at issue. Since the quality of its publication is far from ideal, this also raises the issue of the quality of publication of other international agreements and of the methods to prevent this from happening in the future. Thus, on the grounds stated above it should be pointed out that although the Convention was officially published in the Russian Federation and was not departmental in nature, it was accompanied by some disappointing defects. Having established the fact of the official publication of the Convention in Russia, we should raise three other very important questions: a) from what date is the Convention deemed to be officially published?; b) did the official publication of the Convention in Russia have any legal significance or was it unnecessary?; c) could the Convention be applied by Russian law application authorities from 1 September 1991, even prior to its official publication? To the authors best knowledge Russian doctrine has so far not elucidated these issues. The courts too, have not considered them. The answer to the first question should be as follows: given that the precise date of publication of the book entitled Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII is not reliably known, it is not possible to determine the precise date of the official publication of the Convention in Russia. It will be approximate in any case, somewhere during early 1994. Considering that the text of the book, as stated therein, was passed to press on 24 March 1993, put to print on 2 November 1993 and published in Tula14 in 500 copies, one can assume 1 February 1994 to be the approximate date of the official publication of the Convention, allowing for all possible delays. We reiterate that the publication of the Convention in the Herald of the Higher Arbitrazh Court of the Russian Federation, No 1 of 1994, cannot be regarded as the official version. Therefore we shall not consider this further. The answer to the second question appears at first glance to be simpler. For instance, since under para. 4 of Article 15 of the Russian Constitution international treaties of the Russian Federation are a component part of its legal system and with regard to international treaties in general and to the Convention in particular, one can on the whole, omitting some legal details, apply the wording regulatory

13 Ibid. Compare, for instance, paragraphs 1 of Articles 39 or Articles 68 in these two texts. 14 A Russian regional centre about 200 km from Moscow.

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legal act, so these international treaties and the Convention shall be automatically covered by the following provision of para. 3 of Article 15 of the Russian Constitution: Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge (below, we shall proceed from the assumption that the Convention is not covered by the following first provisions of para. 3 of the same Article 15: Laws shall be officially published. Unpublished laws shall not be applicable. It appears that the term law in these provisions denotes a special form of internal regulatory act which is not to be identified with an international treaty. Nevertheless, the opposite opinion is also possible.15 In that case any international treaty which is subject to ratification must be officially published. This point should not be disregarded with respect to the study below. However, we shall not consider it in details further). Therefore it may follow from the above that the official publication of the Convention must have had substantive legal significance: without it the Convention would not be subject to application in Russia. This possible conclusion, however, requires further important circumstantiations. It should be also stressed that official publication of international treaties is considered to be an essential prerequisite for their application not only in Russia but also in many developed Western states. A substantive condition for the application of treaties by courts is their publication through an established procedure. Many cases are known where the courts refused to apply treaties not meeting this condition. On this basis the civil tribunal of the Seine Department in the judgment of 5 November 1955 in the case Nicholas Enterprises Company v. Trieste Company refused to apply the provisions of the Franco-Italian agreement of 1951. In the judgment of 19 March 1981, the Cassation Court of Belgium clearly upheld the view that a treaty cannot make individuals liable and cannot be invoked against them if it has not been duly published. The requirement that treaties be published and made public ensues from a major principle of law recognized by civilized nations under which an individual is obliged to abide only by those legal norms that have been published in a generally accessible form.16 In Austria, like in other West European countries though, great legal significance is attached to official publication. On 20 February 1952, the Supreme Court pronounced an Austrian-US intergovernmental agreement to be null and void in the intrastate sphere on the grounds that it had not been the consented to by the National Assembly and had not been published in ... [official]

15 The general provision of the Constitution on the publication of laws (part 3 of Article 15) extends to international treaties. Only officially published treaties may have direct effect. Kommentariy k Federalnomu zakonu O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii (Commentary to the Federal Law On International Treaties of the Russian Federation). Moscow, 1996, p. 18. 16 Lukashuk I.I. Mezhdunarodnoe pravo v sudakh gosudarstv (International Law in the Courts of States). St. Petersburg, 1993, pp. 132-133.

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bulletin. The fact that it had been published in the official Vienna Gazette was found to be insufficient.17 The view that part 3 of Article 15 of the Russian Constitution should also apply to the international treaties of the Russian Federation is vigorously advocated by the contemporary Russian doctrine.18 Accordingly, one cannot hold the view that para. 4 of Article 15 of the Russian Constitution19 is aimed at automatic transformation of provisions of international treaties of Russia (at least those that affect the rights, freedoms and duties of a human being and citizen) into national regulation, directly applicable all the time regardless of the official publication of such treaties. However, one has to admit a certain deficiency in the wording in the paragraph at issue, due to which some may hold an opposite opinion. The incorrectness of such an opinion is also proved by para. 3 of Article 5 of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 199520 which provides that The provisions of the officially published international treaties of the Russian Federation, not requiring the adoption of intrastate acts for application, are of direct effect in the Russian Federation. Appropriate legal acts shall be passed to implement other provisions of international treaties of the Russian Federation. However, one must admit that in the quoted Article too the principle of binding official publication of an international treaty as a sine qua non condition of its application in the domestic sphere is expressed somewhat indirectly. In connection with the above, one should make yet another substantial point: hereafter we shall proceed from the assumption that Article 27 Internal Law and Observance of Treaties of the Vienna Convention on the Law of Treaties of 23 May 196921 (A party may not invoke the provisions of its internal law as justification for failure to perform a treaty) applies exclusively in the sphere of international relations between states as subjects of international public law and not in the internal sphere. Only this interpretation of the rule in question can prevent

17 Ibid., p. 123. 18 It should be considered that part four of Article 15 does not require the official publication of international treaties as the essential condition of their applicability. One can assert, however, that the international treaties affecting the rights, freedoms and duties of a human being and citizen cannot apply if they have not been published officially for general knowledge. This follows from the general principle established by part three of Article 15; since the Article speaks of the need for official publication of any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen, it is obvious that this requirement also extends to the regulatory acts of an international legal nature. Konstitutsiya Rossiyskoy Federatsii. Kommentariy (The Constitution of the Russian Federation. Commentary) / General Editors: B.N. Topornin, Y.M. Baturin, R.G. Orekhov. Moscow, 1994, p. 118. 19 The commonly recognized principles and norms of international law and international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty shall apply. 20 Rossiyskaya Gazeta, 21 July 1995; Collection of Legislation of the Russian Federation, 1995, No 29, item 2757. This Law took effect from the day of its official publication. 21 Gazette of the Supreme Council of the USSR, 1986, No 37, item 772.

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the contradiction that otherwise arises between this rule and the requirement of the official publication of an international treaty, introduced not only by the Russian Constitution but also by the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995. Indeed, provided that Article 27 of the Vienna Convention on the Law of Treaties is recognized to be applicable in the internal sphere, any international treaty can be regarded as applicable in the Russian Federation from the moment of its entry into force for Russia, irrespective of the compliance with the requirement of Russian law that it should be officially published in Russia. This result, however, would only be possible given the following two assumptions: (a) If para. 4 of Article 15 of the Russian Constitution is viewed in isolation from para. 3 of the same Article and if the principle Non obligat lex nisi promulgata is ignored; and (b) If one recognizes the precedence of Article 27 of the Vienna Convention on the Law of Treaties over the Russian Constitution. Assumption (a), however, would be incorrect: the provisions of the Russian Constitution cannot be independent of each other, while the principle Non obligat lex nisi promulgata is specifically proclaimed in it. In addition, this assumption is rejected by contemporary Russian doctrine, as it has already been stated. Assumption (b) is equally impossible in the sphere of Russian law: In all circumstances one must presuppose that ratified treaties may revoke or establish any legal norm, except a constitutional one.22 As is well known Interpretare et concordare leges legibus, est optimus interpretandi modus. In light of this one is to assume that Article 27 of the Vienna Convention on the Law of Treaties is applicable exclusively in the sphere of relations between states as subjects of international public law. Thus everything falls into its proper place: a state cannot invoke, in its relations with other states, the provisions of its internal law in justification of its non-compliance with a treaty and must do everything it can so that such internal provisions will not obstruct the performance of a treaty and its application in that states territory. If a state does not do that it violates its own commitments vis-a-vis other states and will be liable. However, such an omission on the part of the state does not mean that the said provisions of its internal law should not apply in its courts. The situation in which an international treaty has entered into force for a state and must be fulfilled by it but is not recognized as applicable by its courts is not at all abnormal, if one regards the state as the subject of international public law, the obligations of which should not be treated as the obligations of its authorities responsible for application of internal regulations established by the state itself. This is also supported by linguistic interpretation of Article 27 of the Vienna Convention on the Law of Treaties. Thus, the Article uses the terms observance 22 Kommentariy k Federalnomu zakonu O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii (Commentary to the Federal Law On International Treaties of the Russian Federation). Moscow, 1996, p. 18.

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and failure to perform, while para. 3 of Article 15 of the Russian Constitution uses the term apply. They apparently refer to different spheres of regulation and do not intersect. The former refers to the states as subjects of international public law, while the latter refers to internal law application authorities which are not parties to an international treaty and are not obliged to abide by it but rather to apply it. Such application can only occur once the state has imposed prerequisites in the legislation and then only within the limitations of such prerequisites: It is absolutely obvious that a treaty, the existence of which has not been made known to the immediate performers, cannot be performed by them which means that the non-performance of an international treaty by specific persons automatically entails a violation of the treaty by the state. It follows from this that the publication of a treaty is one of the conditions of its bona fide performance but in itself has no effect on its validity.23 Further on, Article 27 of the Vienna Convention on the Law of Treaties uses the term a party. It is clear that this term applies only to the state in its relations with the other states rather than to the law application authorities of the former. In light of this it is impossible to require that such authorities be guided in their activities by Article 27 of the Vienna Convention on the Law of Treaties: it does not apply to them. Returning to the Vienna Convention 1980, we reiterate that para. 3 of Article 15 of the Russian Constitution requires official publication only with regard to those regulatory legal acts (including, as it has already been pointed out, international treaties) which affect the rights, freedoms and duties of a human being and citizen.24 Considering that the Convention was officially published after the Russian Constitution had taken effect (the Constitution entered into force on 25 December 1993, i.e. on the day of its official publication in Rossiyskaya Gazeta (Russian Newspaper)), we ought to decide what significance this circumstance may have with regard to possibility of applying the Convention in the Russian Federation in the period between the date of entry into force of the Russian Constitution and the date of the official publication of the Convention (assumed to be on 1 February 1994). In other words, does the Convention affect the rights, freedoms and duties of a human being and citizen? As regards para. 3 of Article 5 of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 which, as appears, deals with the official publication of all international treaties, not just those affecting the rights, freedoms and duties of a human being and citizen, this para. 3 should not be of interest to us, since by the time this Federal Law entered into force the Convention had already been officially published.

23 Galenskaya L.N. Primenenie mezhdunarodnykh dogovorov v arbitrazhnoy praktike (Application of International Treaties in Arbitrazh Practice). Zhurnal mezhdunarodnogo chastnogo prava (Journal of Private International Law), 1997, No 3 (17), pp. 5-6. 24 We do not consider the first and the second rules in para. 3 of Article 15 of the Constitution of the Russian Federation.

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So one might assert that the Convention, being a regulatory legal act, does not affect the rights, freedoms and duties of a human being and citizen. If this is really so, then it is obvious that the issue of the official publication of the Convention is irrelevant, the applicability of the Convention is unconditional and the further analysis in the present article is pointless. However, it appears that the Convention does affect such rights, freedoms and duties. Without going deep into details of what these rights, freedoms and duties are and giving the term to affect in the Russian Constitution the meaning of being related to something25 , let us point out that we may include among them the right to use freely ones abilities and property for entrepreneurial or other economic activity not prohibited by the law (part 1 of Article 34 of the Russian Constitution) or the right to have property in ownership, to possess, utilize and dispose of it both individually and jointly with other persons (part 2 of Article 35 of the Russian Constitution). Further on, one may assert that Article 1226 of the Convention as well affects the said rights, freedoms and duties. In addition, scholarly objectiveness requires avoiding a simplistic view, and instead prefers the approach of providing for the strictest conditions for the applying of the Convention in the Russian Federation. By virtue of the above it should be assumed that para. 3 of Article 15 of the Russian Constitution must be extended to the Convention. But if this is so, one can also assert that this paragraph applies not only in situations involving individuals but also in situations where the application of the Convention to relations with legal entities is at issue. In accordance with the interpretation provided by the Constitutional Court of Russia, the rules of the Russian Constitution also apply to legal entities since the latter are established by citizens for joint implementation of their constitutional rights, already mentioned, such as the right to use freely ones abilities and property for entrepreneurial and other economic activity not prohibited by law, as well as the right to have property in ownership, to possess, use and dispose of it both individually and jointly with other persons.27

25 But not the meaning of to infringe: the latter, more narrow interpretation, on the one hand, sharply reduces the scope of society control over the law-making activity and, on the other, sharply expands the scope for arbitrariness in the law application sphere. 26 Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article. 27 See, for example, Decision of the Constitutional Court of Russia No 20-P of 17 December 1996 on the case of verification of the constitutionality of paras 2 and 3 of part one of Article 11 of the Russian Federation Law On Federal Tax Police Authorities of 24 June 1993. Rossiyskaya Gazeta, 26 December 1996; Collection of Legislation of the Russian Federation, 1997, No 1, item 197; Vestnik Konstitutsionnogo Suda Rossiyskoy Federatsii (Herald of the Constitutional Court of the Russian Federation), 1996, No 5, pp. 22-29. For instance, para. 4 of its preamble says: The constitutional right of a human being and citizen laid down in Article 35 (parts 2 and 3) of the

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Accordingly, one ought to assume that para. 3 of Article 15 of the Russian Constitution also extends to the Convention as a regulatory legal act affecting the rights and duties of both individuals and legal entities. An important conclusion can be derived from the above: after 1 February 1994 (the assumed time of the official publication of the Convention) the possibility of its application in Russia is not subject to any doubt whatsoever, even despite all the imperfections related to its official publication. Neither the Russian Constitution nor the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995, nor any other Russian regulations render application of a regulatory act, including an international treaty, dependent in Russia on the absence of any errors in the publication or on the need to publish in excess of 500 copies. But what about the possibility of applying the Convention in the period preceding 1 February 1994? It has already been pointed out above that the provision of para. 3 of Article 15 of the Russian Constitution (Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge) may lead us to the conclusion that official publication of the Convention should have substantive legal significance. Without it the Convention would not have been applicable in Russia. Two points must be borne in mind, however, with regard to this conclusion: the absence in any regulatory act, as a general rule, of retroactivity and the special status of such legal acts as international treaties. Thus, the first point permits the assertion that since neither the Russian Constitution nor the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 had retrospective effect, the rules contained therein on official publication can only extend for a period beginning after their entry into force but do not apply to the temporary periods preceding it. This brings us to the third question: could the Convention be applied in the USSR or in the Russian Federation before the date of its official publication? Let us now try to find an answer to this question, leaving aside for a while the second one (concerning the legal significance of the official publication of the Convention in Russia), as in the final analysis the answer to the third question is expected to help us to resolve the second one with maximum objectivity. Considering the above, as well as the fact that 1 February 1994 can be taken as the assumed date of the official publication of the Convention, the third question can be modified as follows: could the Convention be applicable in the USSR or in the Russian Federation from 1 September 1991 to the moment of its official publication, especially between 25 December 1993 (the date of entry into force of the Russian Constitution) and 1 February 1994?

Constitution of the Russian Federation covers legal entities to the extent to which this right can by its nature be applicable to them.

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Let us examine the question primarily with regard to the period between 1 September 1991 and 25 December 1993. First and foremost, the following problem arises: were there in the USSR and/or in the Russian Federation during that period any regulatory provisions stipulating that in the absence of the official publication an international treaty that had entered into force for the USSR and/or the Russian Federation was not subject to application on its territory? The analysis of legislation in force at that time, as conducted by the author, permits the conclusion that these particular provisions were absent in the Soviet and/or Russian legislation. There is no doubt that in the period in question there existed certain regulatory acts concerning the publication of international treaties that entered into force but they said nothing about the imperative requirement of their official publication and still less provided that applicability was dependent on such publication. This clearly follows from the above cited Article 5 of the USSR Law On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of Peoples Deputies of the USSR, the Supreme Council of the USSR and Their Bodies No 307-I of 31 July 1989, as well as from Article 25 of the USSR Law On the Procedure for Conclusion, Performance and Denunciation of International Treaties of the USSR No 7770-IX of 6 July 1978. The same can be stated with regard to Article 5 of the RSFSR Law On the Procedure for Publication and Entry Into Force of the RSFSR Laws and Other Acts Adopted by the Congress of Peoples Deputies of the RSFSR, the Supreme Council of RSFSR and Their Bodies of 13 July 1990,28 to say nothing of the fact that it did not cover the Convention. Nevertheless, it cannot be omitted that on 29 November 1990 the USSR Committee for Constitutional Supervision adopted the Opinion On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens No 12 (2-12).29 The operative part stated: Based on the above stated and guided by Article 124 of the USSR Constitution, by Articles 12, 18 and 21 of the USSR Law On Constitutional Supervision in the USSR, the USSR Committee for Constitutional Supervision has concluded: 1. Publication of laws and other regulatory acts concerning the rights, freedoms and duties of citizens, i.e. making them in some way or other generally

28 International treaties concluded on behalf of the RSFSR and ratified by the Supreme Council of the RSFSR shall be published in the Vedomosti Sezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR [Gazette of the Congress of Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR], upon submission by the Ministry of Foreign Affairs of the RSFSR. International treaties of the RSFSR, equally authentic texts of which are in foreign languages, shall be published in the Vedomosti in one of these languages, supplied with the official translation into the Russian language. Vedomosti Sezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR (Gazette of the Congress of Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR), 1990, No 6, item 93. 29 Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR, 1990, No 50, item 1080.

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known is an essential condition for the application of these acts. Article 4 of the USSR Law On the Procedure for Publication and Entry Into Force of the Laws of the USSR and Other Acts Adopted by the Congress of Peoples Deputies of the USSR, the Supreme Council of the USSR and Their Bodies, paragraphs 1, 2, 5 of the USSR Council of Minister Resolution On the Procedure for Publication and Entry Into Force of the Resolutions and Decrees of the USSR Government No 293 of 20 March 1959 and other regulatory provisions in that part where they directly or indirectly admit entry into force of unpublished regulatory acts concerning the rights, freedoms and duties of citizens, do not correspond to the Constitution of the USSR and to international acts on human rights and they become ineffective in that part from the moment of adoption of the present Opinion. 2. Based on Article 22 of the USSR Law On Constitutional Supervision in the USSR previously adopted but unpublished regulatory acts concerning the rights, freedoms and duties of citizens are subject to publication by the appropriate state bodies within three months from the day of adoption of the present Opinion. Acts which are not so published will become ineffective upon expiry of this term (bold font supplied by the author A.M.). As one can see, this Opinion directly pointed to the fact that applicability of a regulatory act depends on its being published. In light of the above, one ought hereafter to put aside the other provisions of this Opinion for the sake of greater simplicity. Ones attention is drawn to two points in the Opinion: firstly, it covers only regulatory acts concerning the rights, freedoms and duties of citizens and, secondly, it establishes the need not for the official publication of such acts but rather the need to publish them in general, i.e. the need of bringing them, in an appropriate way, to general knowledge (no formal criteria are set out in the Opinion for what should be considered the appropriate way of bringing the regulatory act to general knowledge. It appears, however, that it does not mean that such criteria should be or are absent: the wording making generally known indicates that a certain minimal number of published or otherwise circulated copies should also be determined, always with the principle of reasonableness in mind). It follows from the above that the first of the two mentioned points is not supposed to have any significance with regard to the Convention: the latter ought to be considered as a regulatory legal act affecting the rights, freedoms and duties of both individuals and legal entities (moreover concerning them). The second point, however, is very substantial. The following question arises in this respect: was the Convention published by 1 September 1991 or was it published later, albeit unofficially, that is to say, was it made generally known in some way or other? The answer to this question must be positive: indeed, the text of the Convention was published, for example, by the publishing house of the Moscow Peoples Friendship University in 1989 in the book entitled Grazhdanskoe, torgovoe i semeinoe pravo kapitalisticheskikh stran. Sbornik normativnykh aktov. Obyazatelstvennoe pravo (Civil, Trade and Family Law of Capitalist Countries.

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Collection of Regulatory Acts. The Law of Obligations) in 7,550 copies. This text is to be considered one of the very first publications of the Convention in Russian legal writings, although it was published even before the Convention entered into force for the USSR. Moreover, in the early 1990s the publishing house Mezhdunarodnye Otnosheniya (International Relations) released in Moscow in 12,300 copies a book by I.S. Zykin entitled Dogovor vo vneshneekonomicheskoy deyatelnosti (Contract in the Foreign Economic Activity), the supplement to which contained the text of the Convention. Later on, in 1991, the book entitled Sbornik mezhdunarodnykh dogovorov i drugikh dokumentov, primenyaemykh pri zaklyuchenii i ispolnenii vneshneekonomicheskikh kontraktov (Collection of International Treaties and Other Documents Applied to Conclusion and Fulfilment of Foreign Economic Contracts) with the text of the Convention was released in 12,000 copies under the auspices of the Chamber of Commerce and Industry of the USSR and the All-Union Association Vneshekonomservis (book compilers: V.V. Ivanov, P.A. Kravchuk; the consultant and the author of the foreword M.G. Rozenberg). In addition, the text of the Convention was published in 1991 in the seventh and eighth issues of the journal Vneshnyaya Torgovlya (Foreign Trade) which was the theoretical and scholar-methodological edition of the Ministry of Foreign Economic Relations of the USSR (although it did not have the status of an official edition).30 Since all the publications mentioned were published before 1 September 1991, it should be pointed out that soon after 1 September 1991 the Foreign Economic Centre Sovinteryur in Moscow published in 6,000 copies M.G. Rozenbergs brochure entitled Zaklyuchenie dogovora mezhdunarodnoy kupli-prodazhi tovarov (Conclusion of Contract for the International Sale of Goods) which also contained the text of the Convention (it is quite difficult to identify a more accurate date of the release of the brochure, even from indications in it: they give no exact information on its passing for press and putting to print. Nevertheless, according to the author of that brochure and some eyewitnesses, the date may refer to October or early November 1991). Also significant is the fact that the brochure in question was distributed among lawyers and other law practitioners in numerous seminars and conferences of that time dedicated to regulation of foreign economic activity. It should also be noted that by 1 September 1991 the provisions of the Convention had been repeatedly examined in Russian legal writings31 and the fact

30 There were also the Russian texts of the Convention in the UN publications mentioned earlier in the present article. 31 Aktualnye voprosy pravovogo regulirovaniya vneshney torgovli SSSR (The Topical Issues of Legal Regulation of the USSR Foreign Trade) / Edited by M.G. Rozenberg. Moscow, 1981, pp. 82-87; Bardina M.P. Konferentsiya o vozmozhnosti soglasovaniya i sblizheniya mezhdu OUP SEV i Konventsiey OON o mezhdunarodnoy kuple-prodazhe (The Conference on the Possibility of Harmonization and Approximation of OUP SEV and the UN Convention on the International Sale

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of the USSR adherence to it did not pass unnoticed by the Russian legal community.32 It is also widely known that the text of the Convention was repeatedly published in different unofficial sources after 1 September 1991. Thus, since all the above publications were issued in Moscow (one of them being in the journal of the Ministry of Foreign Economic Relations of the USSR), both before and after the entry into force of the Convention, and the aggregate number of copies was quite significant, it should be stated that the requirements of the Opinion of the USSR Committee for Constitutional Supervision On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens No 12 (2-12) of 29 November 1990 as applied to the Convention were met: by 1 September 1991 the Convention was published, albeit unofficially, i.e. it was made generally known precisely through publication in different printed editions accessible to everyone. Therefore on 1 September 1991 the Convention not only entered into force for the USSR but also became applicable on its territory regardless of its official

of Goods). Sovetskoe gosudarstvo i pravo (Soviet State and Law), 1989, No 6, pp. 132-134; Komarov A.S. Kontseptsiya otvetstvennosti za neispolnenie obiazatelstv v Konventsii OON o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov (The Concept of Responsibility for Non-Performance of Obligations under the UN Convention on Contracts for the International Sale of Goods) / Iuridicheskie aspekty osushchestvleniya vneshneekonomicheskikh svyazey. Trudy kafedry mezhdunarodnogo chastnogo i grazhdanskogo prava MGIMO MID SSSR (The Juridical Aspects of Actualization of Foreign Economic Relations. Acta of the Department of Private International and Civil Law of the MSIIR of the MFA of the USSR). Moscow, 1979, pp. 64-72; Materialy seminara po Konventsii ob iskovoy davnosti i Konventsii o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov, razrabotannym v ramkakh Komissii OON po pravu mezhdunarodnoy torgovli (Proceedings of the Seminar on the Convention on the Limitation Period and the Convention on Contracts for the International Sale of Goods, developed within the framework of the UN Commission on International Trade Law). Moscow, CMEA Secretariat, 1983, pp. 15-17, 54-134, 140-143, 148-191; Medvedev E., Rozenberg M. Konferentsiya OON po dogovoram mezhdunarodnoy kupli-prodazhi tovarov (The UN Conference on Contracts for the International Sale of Goods). Vneshnyaya torgovlya (Foreign Trade), 1981, No 1, pp. 25-30; Musin V.A. Mezhdunarodnye torgovye kontrakty (International Trade Contracts). Leningrad, 1986, pp. 8-10, 58-71, 74-75, 80-106, 110-115, 144-150; Musin V.A. Poryadok zaklyucheniya dogovora mezhdunarodnoy kupli-prodazhi (The Procedure for Concluding a Contract for the International Sale). Sovetskoe gosudarstvo i pravo (Soviet State and Law), 1985, No 12, pp. 44-49; Rozenberg M.G. Mezhdunarodnoe regulirovanie postavok v ramkakh SEV (International Regulation of Deliveries within the CMEA Framework). Moscow, 1989, pp. 10-12, 67-72, 98, 130, 133-134, 255; Liset Peres E. Unifikatsiya norm, reguliruyushchikh mezhdunarodnuyu kuplyu- prodazhu (na primere Konventsii OON 1980 goda o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov) (Unification of Norms Regulating International Sale (By the Example of the UN Convention 1980 on Contracts for the International Sale of Goods)). Thesis for the Degree of Candidate of Jurisprudence. Moscow, 1988; Spasova-Stoyanova TS.A. IUNSITRAL i unifikatsiya prava mezhdunarodnoy torgovli (UNCITRAL and Unification of the International Trade Law). Synopsis of the thesis for the Degree of Candidate of Jurisprudence. Moscow, 1987, pp. 6, 10, 17-25. 32 Komarov A. Novoe v pravovom regulirovanii vneshnetorgovykh kontraktov (Innovations in the Legal Regulation of Foreign Trade Contracts). Vneshnyaya torgovlya (Foreign Trade), 1990, No 12, pp. 23-26; Rozenberg M. Konventsiya OON o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov 1980 goda (The 1980 UN Convention on Contracts for the International Sale of Goods). Khozyaistvo i pravo (Economy and Law), 1991, No 2, pp. 127-135.

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publication: for such applicability the legislation of that time was satisfied with quite an ordinary publication which was actually the case. The above is also confirmed by the following: on 5 September 1991 the Fifth Special Congress of Peoples Deputies of the USSR adopted the Declaration of Human Rights and Freedoms33 which in part 2 of Article 12 said: Publishing laws and other regulatory acts shall be the essential condition of their application. As it can be seen, this Declaration also confined itself to requiring an ordinary, rather than official, publication. It goes without saying that the Opinion of the USSR Committee for Constitutional Supervision No 12 (2-12) of 29 November 1999 and the said rule of the Declaration of Human Rights and Freedoms were only the first steps on the road to strengthening the principle Non obligat lex nisi promulgata in the Russian national law (this process has yet to be finished). In this connection ones attention is to be drawn to another two acts adopted in the Russian Federation, whose provisions have a bearing on the question now being examined. Firstly, the Resolution of the RSFSR Supreme Council No 1920-I of 22 November 1991 adopted the Declaration of Rights and Freedoms of a Human Being and Citizen,34 part 2 of Article 35 of which provided: The law providing for the punishment of citizens or restriction of their rights shall enter into force only after it has been published through the official procedure. Secondly, on 30 November 1992 the Russian Constitutional Court adopted the Resolution On the Case of Verification of Constitutionality of the Decrees of the President of the Russian Federation On Suspending the Activity of the RSFSR Communist Party No 79 of 23 August 1991, On the Property of the CPSU and the RSFSR Communist Party No 90 of 25 August 1991 and On the Activity of the CPSU and the RSFSR CP No 169 of 6 November 1991, as well as on Verification of Constitutionality of the CPSU and the RSFSR CP.35 The next-to-last paragraph of section I of the declaration in the Resolution said: Paragraph 6 of the Decree stipulated that it shall enter into force from the moment of its signing. However, under the general principles of law, any legal act which is generally binding and affects human rights, freedoms and duties, shall enter into force not earlier than it has been published or made generally known by other means. Para. 6 of section I of the operative part in Resolution established: To declare paragraph 6 of the Decree inconsistent with the general principle of law under which a law or any other regulatory act, providing for restriction of rights of citizens, shall enter into force only after it has been published through the official procedure.

33 Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR, 1991, No 37, item 1083. 34 Gazette of the Congress of Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR, 1991, No 52, item 1865; Rossiyskaya Gazeta, 25 December 1991. 35 Vedomosti Sezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoiy Federatsii (Gazette of the Congress of Peoples Deputies of the Russian Federation and the Supreme Council of the Russian Federation), 1993, No 11, item 400.

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Thus, on the one hand, the Constitutional Court of Russia reiterated the conclusions of the USSR Committee for Constitutional Supervision, and on the other hand thanks to the RSFSR Supreme Council, there appeared a provision in Russian law, later reiterated by the Russian Constitutional Court in its Resolution of 30 November 1992, under which a law or any regulatory act36 restricting the rights of citizens, shall enter into force only after its publication through the official procedure. It is interesting to note that the Russian Constitutional Court demonstrated inconsistency in the same Resolution: at first it mentioned the acts affecting human rights, freedoms and duties and raised the need for their publication in general but in the final analysis mentioned acts restricting the rights of citizens and then pointed to the need for their official publication. In this respect the following question arises: is the provision of part 2 of Article 35 of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 applicable to the Convention? It appears that the answer should be negative. Firstly, it is hardly possible to assert that the Convention, even being a regulatory act, has introduced any restrictions on the rights of citizens or legal entities. There is no doubt, as was indicated above, that the Convention refers to and/or affects such rights. But it is also obvious that it regulates, rather than limits them. Of course, one can try to assert that such rights are restricted by Article 12 of the Convention under which a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention must be made only in writing, if at least one of the parties has its place of business in the Russian Federation (since the USSR made the appropriate statement when adhering to the Convention). Article 12 stated that parties may not derogate from or vary the effect of this article. In response, one can point out that the Article in question does not constitute a restriction, given that Russian legislation had long ago prescribed a simple written form for foreign economic transactions under threat of its invalidity. This, in turn, can be countered by the argument that the fact of restricting rights is significant rather than the fact that they are more limited as compared to national legislation. This issue could be really disputed for a long time. But even if one agrees that the Convention has introduced some restrictions on the rights of citizens or legal entities (although it appears not to be the case) this will not be of any significance. The reason lies in the two above mentioned points: namely, the absence, as a general rule, of retroactivity in any regulatory act and the special status of such legal instruments as international treaties. Thanks to the former, it should be stated that the above provision of part 2 of Article 35 of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 became valid only after the moment of its entry into force and should not apply to regulatory documents that had become effective

36 Let us not interpret the term law in part 2 of Article 35 of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 restrictively, considering that the Constitutional Court of Russia has done the same.

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before that moment.37 When that moment was in reality is not important: of significance is that it occurred after the Convention had already been published. Indeed, since the Convention was published and under the valid legislation at the time (including the requirements of the Opinion of the USSR Committee for Constitutional Supervision No 12 (2-12) of 29 November 1990 and the Declaration of Human Rights and Freedoms of 5 September 1991) its application became possible, why would such a possibility cease to exist in conditions where the new requirement of obligatory official publication was not retroactive and nothing in the regulation indicated that the acts, previously capable of being fully applied, lost their applicability or needed to be officially published once again? It would be different if the Convention had not been published in the ordinary way by the time of introducing the requirement of obligatory official publication of regulatory acts or if the Declaration of Rights and Freedoms of a Human Being and Citizen had entered into force before 1 September 1991: in the case of the latter, there might be some doubts concerning the possibility of the application of the Convention. Indeed, had it been otherwise, would the Opinion of the USSR Committee for Constitutional Supervision On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens No 12 (2-12) of 29 November 1990 contain this provision: Based on Article 22 of the USSR Law On Constitutional Supervision in the USSR previously adopted but unpublished regulatory acts concerning the rights, freedoms and duties of citizens, are subject to publication by the appropriate state bodies within three months from the day of adoption of the present Opinion. Acts which are not so published will become ineffective upon expiry of this term? It appears that in absence of such provision all the regulatory acts previously not published would continue to be applicable, while this Opinion would be of importance for the future only (including its provision that Publication of laws and other regulatory acts concerning the rights, freedoms and duties of citizens, i.e. making them in some way or other generally known is an essential condition for the application of these acts). The above is less doubtful by virtue of the second point underlined: i.e. the special status of such legal instruments as international treaties. Indeed, putting aside all we said above, we can assume that the previously applicable but not officially published national regulatory acts are no longer applicable from the 37 As far as the author is aware, the Declaration was officially published on 25 December 1991. The moment of its entry into force was indicated neither in it nor in the Resolution of the RSFSR Supreme Council of 22 November 1991. Accordingly, it entered into force on 4 January 1992, since Article 3 of the RSFSR law of 13 July 1990 On the Procedure for Publication and Entry into Force of the RSFSR Laws and Other Acts Adopted by the Congress of the Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR and Their Bodies provided: The laws of the RSFSR and other acts of the Congress of the Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR of regulatory nature shall enter into force on the entire RSFSR territory simultaneously upon expiry of ten days from the day of their official publication. Gazette of the Congress of Peoples Deputies of the RSFSR and of the Supreme Council of the RSFSR, 1990, No 6, item 93.

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moment of introducing the provision on mandatory official publication of such acts. But how can one assert that a regulatory act of a special legal nature such as an international treaty that has entered into force for the USSR and Russia and at the same time has become applicable by virtue of its publication (albeit unofficial), suddenly loses its applicability only because Russian legislation is supplemented by a provision on the need for official publication of regulatory acts, and circumstances where nowhere it is stated that this provision is treated as retroactive and where nothing to the effect that previously applicable acts are subject to a repeated official publication is stipulated? Obviously, it is the special legal nature of international treaties as regulatory instruments sui generis, determined by the principle of international law Pacta sunt servanda, that does not make it possible to agree with such assertions. To justify the continued applicability of the Convention in Russia, despite the provision of part 2 of Article 35 of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991, one could also rely on considerations based on the correlation between the USSR law and that of the RSFSR and on the priority of the former from the viewpoint of the USSR which continued to exist until the end of 1991 but they appear to be overly complicated and redundant. Finally, there is another nuance that has to be emphasized separately. It concerns the Decree of the President of the Russian Federation On the Procedure for Publication of International Treaties of the Russian Federation No 11 of 11 January 1993,38 para. 1 of which provides that: 1. International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are subject to official publication in the monthly Byulleten mezhdunarodnykh dogovorov [Bulletin of International Treaties] of Iuridicheskaya Literatura [Juridical Literature] publishing house of the Administration of the President of the Russian Federation and also in Rossiyskie Vesti newspaper [Russian Tidings] in case of need. The said procedure applies to the international treaties of the Russian Federation, concluded or adhered to from 1 January 1992. International treaties of the Russian Federation may be made generally known by other mass media and publishing houses. Apparently parts 1 and 2 of the paragraph in question do not cover the Convention. However, this cannot be asserted with regard to part 3 of this para. 1. Thus, the previous conclusion to the effect that the absence of an official publication of the Convention could in no way prevent its application in Russia under the legislation in force at that time, is even more convincing, given that the Decree of the President of the Russian Federation No 11 of 11 January 1993 introduced the necessity of the official publication only for those international

38 Sobranie aktov Prezidenta i Pravitelstva Rossiyskoy Federatsii (Collection of Acts of the President and the Government of the Russian Federation), 1993, No 3, item 182. This Decree took effect from 26 January 1993.

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treaties of the Russian Federation that were concluded or adhered to starting from 1 January 1992, simultaneously stipulating that the international treaties of the Russian Federation may be made generally known by other mass media and publishing houses. It is obvious that, guided by the principles of Pacta sunt servanda and Favor pacti, this wording ought to be interpreted broadly. In different terms the wording is to be understood as not only providing an opportunity to make international treaties generally known unofficially as well as officially but also as including any unofficial publication of those international treaties that took effect for the Russian Federation before 1 January 1992. This broad interpretation is necessary to secure for such treaties their previously acquired quality of applicability, while ruling out their inapplicability on the grounds that their official publication is unavailable. It is a pity though that the Decree of the President of the Russian Federation No 11 of 11 January 1993 did not state so directly. We should also note that as of today part 3 of para. 1 of the Decree of the President of the Russian Federation No 11 of 11 January 1993 cannot be construed as revoking the requirement of international treaties official publication or as ranking the bringing international treaties to public knowledge through other mass media and publishers with their official publication. Such interpretation is even more unallowable given the legal effect of para. 3 of Article 1539 of the Russian Constitution and of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995.40 In other words part 3 of para. 1 of the Decree permits no more than unofficial parallel publication of international treaties along with the official one (and it can be also interpreted as stated above). However, sometimes courts in Russia misapprehend this provision in the Decree. For instance, the Federal Arbitrazh Court of the West-Siberian District held in the ruling of 15 October 2001 (case No F04/3120-669/A70-2001, a commercial legal entity v. Tyumen Customs Office41 ) that publication of an international treaty in a publicly available media is sufficient for its applicability in Russia, especially if the federal law on ratification of this treaty has been officially published. This approach seems to be wrong. Accordingly, considering that from 1 September 1991 the Convention not only entered into force for the USSR but was also applicable on its territory under the legislation in force at that time, by virtue of its ordinary, albeit unofficial, publication, one ought to admit that it was applicable up to 25 December 1993, even after the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 was adopted and after the Resolution of the Russian

39 Laws shall be officially published. Unpublished laws shall not be applicable. Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge. 40 Para. 3 of Article 5 of this Law stipulates: The provisions of the officially published international treaties of the Russian Federation, not requiring the adoption of intrastate acts for application, are of direct effect in the Russian Federation. Appropriate legal acts shall be passed to implement other provisions of international treaties of the Russian Federation. 41 Not published. May be found in electronic law database KonsultantArbitrazh: Zapadno-Sibirskiy Okrug (ConsultantArbitrazh: West-Siberia District).

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Constitutional Court No 79 was passed on 30 November 1992 which both mentioned the need for official publication of regulatory acts (to say nothing of the fact that the applicability of these two documents to the Convention is at best very debatable). In other words, the absence of an official publication of the Convention could not in any way prevent its application in Russia in the period between 1 September 1991 and 25 December 1993. We reiterate that doubts in respect of the above could only appear if the Convention had not been unofficially published by the time of the entry into force of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 (i.e. by 4 January 1992) or if the Declaration had entered into force before 1 September 1991. Considering that during the period between 1 September 1991 and 4 January 1992 the only full-scale publication of the Convention was effected by the above-mentioned brochure Conclusion of Contract for the International Sale of Goods by M.G. Rozenberg, it should be admitted that it is due to this writing that, in legal terms, the absolute possibility of applying the Convention in Russia in 1992, 1993 and in early 1994 (before its official publication) was ensured.42 If M.G. Rozenbergs brochure did not exist and no efforts had been made by him, then in light of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991, one could doubt the applicability of the Convention in Russia before 1 February 1994. It demonstrates how a timely private initiative can influence problems of a national nature, especially when the state does not wish to have anything to do with them. We have thus examined the possibility of applying the Convention during the period between 1 September 1991 and 25 December 1993. Our findings permit us to assert that our conclusions in respect of the subsequent period from 25 December 1993 to 1 February 1994 would not differ from the previous as regards the Convention applicability. Indeed, para. 3 of Article 15 of the Russian Constitution (Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge) could not in any way give rise to the impossibility of applying the Convention in Russia, although its wording regulatory legal acts does cover the Convention. The two points raised earlier are again relevant: the absence of retroactivity, as a general rule, in any regulatory act (including the Constitution) and the special status of such legal instruments as the international treaties. There is no need to repeat what has already been stated above. However we would like to

42 There may be a point of view that legal significance could only exist in the domestic publication of the Convention which took place after 1 September 1991 (i.e. after the entry into force of the Convention for the USSR) while up to 1 September 1991 any publications of the Convention were nothing but scholarly. In this case one is bound to admit that the possibility of applying the Convention appeared not on 1 September 1991 but later, after the above mentioned brochure by M.G. Rozenberg was released. Nevertheless, the author of the present article does not share this view, believing that the Convention could be applicable in Russia exactly from 1 September 1991 due to the fact that by that date it had already been published in the ordinary procedure.

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underline the fact that it is impossible to assert that a regulatory act, possessing a special legal nature, such as an international treaty which has taken effect for the USSR and Russia and has acquired the applicability by virtue of its publication (albeit unofficial), may all of a sudden lose such quality due only to a new provision (though constitutional) in the Russian law requiring the official publication of the regulatory acts. This is so particularly in the context where neither the Russian Constitution nor other federal acts grant any retroactivity to that provision, nor it is said anywhere that previously applicable acts are subject to further official publication. Thus, even in the absence of its official publication, the Convention could fully apply in the USSR and Russia exactly from 1 September 1991 up to 1 February 1994 (when it was officially published). This view may not be shared by some who believe there are technical legal grounds for asserting that from 25 December 1993 (or even from an earlier date) up to the moment of its official publication the Convention should not have been applied in the Russian Federation. Considering the incontestability of the provisions of the Russian Constitution, these grounds assume an even greater weight. From this point of view, any references to the Decree of the President of the Russian Federation On the Procedure for Publication of International Treaties of the Russian Federation No 11 of 11 January 1993 cannot be regarded convincing: although part 3 of para. 1 of the Decree uses the wording made generally known, as is also the case with the provision in para. 3 of Article 15 of the Russian Constitution, it does not imply the term officially. Accordingly, one can assert that technically part 3 of para. 1 of the said Decree contradicted the provision in para. 3 of Article 15 of the Russian Constitution and only the latter should have applied from that moment. However, in light of the above one should not agree with this point of view. It is clear that such a position could only appear due to the uncertainty in Russian law as to the applicability of international treaties in Russia, in particular those that took effect for the USSR but were not published officially or published after 25 December 1993. Nevertheless, in order to refute this incorrect position, one can point out that the Higher Arbitrazh Court of Russia rejected it and proposed each time to resort to part 3 of para. 1 of the Decree of the President of the Russian Federation On the Procedure for Publication of International Treaties of the Russian Federation No 11 of 11 January 1993. The Higher Arbitrazh Court suggested actually that in order to establish the possibility of applying an international treaty, the fact of its official publication should be disregarded. Thus, paragraphs 1 and 2 of the Resolution of the Plenum of the Higher Arbitrazh Court of Russia On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure No 8 of 11 June 199943 says: 1. Bearing in mind the provision of part 3 of Article 3 of the Arbitrazh Procedure Code of the Russian Federation

43 Vestnik Vysshego Arbitrazhnogo Suda Rossiyskoy Federatsii (Herald of the Higher Arbitrazh Court of the Russian Federation), 1999, No 8, pp. 5-6.

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that If the international treaty of the Russian Federation establishes legal procedure rules other than those provided by the legislation of the Russian Federation, the rules of the international treaty shall apply, the arbitrazh courts in adjudicating cases shall take into account the following. The arbitrazh court shall apply the international treaties of the Russian Federation which have entered into force and have been made duly generally known international legal agreements, concluded by the Russian Federation with (a) foreign state(s) or an international organization in writing, regardless of whether the agreements are contained in one document or several related documents, as well as regardless of their specific title. The international treaty of the Russian Federation is made generally known through publication. 2. Courts should take into account that treaties which entered into force for the Russian Federation (except those of inter-departmental nature) are subject to publication in Sobranie zakonodatelstva Rossiyskoy Federatsii [Collection of Legislation of the Russian Federation], Byulleten mezhdunarodnykh dogovorov [Bulletin of International Treaties], Rossiyskaya Gazeta [Russian Newspaper] and Rossiyskie Vesti newspaper [Russian Tidings]. International treaties of the Russian Federation, concluded by ministries and agencies, are published in official bulletins of such bodies. International treaties of the USSR that are binding on the Russian Federation as its legal successor were published in Collections of International Treaties of the USSR. International treaties of the Member States of the Commonwealth of the Independent States may be made generally known in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments entitled Sodruzhestvo [Commonwealth]. International treaties of the Russian Federation may be made generally known through other mass media and publishing houses (Decree of the President of the Russian Federation No 11 of 11.01.93 On the Procedure for Publication of International Treaties of the Russian Federation) (bold font supplied by the author A.M.). There is no doubt that this position of the Plenum of the Higher Arbitrazh Court of Russia carries certain value and supports the view advocated in the present article. At the same time, one may disagree with it and assert that the Plenum gave a somewhat free interpretation of existing laws, to say the least, and failed to take into account para. 3 of Article 15 of the Russian Constitution which must apply directly. Indeed, it cannot be denied that such a statement would be fair to a certain extent: the Plenum of the Higher Arbitrazh Court of Russia was at least inaccurate with regard to the dependence of the application of an international treaty in the Russian Federation on its official publication. It would have been much more

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complete and accurate if the Plenum had pointed out that: (a) An international treaty that entered into force for Russia after 25 December 1993 and before 17 July 1995 (when the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 was put in force) is to be applied in Russia exclusively after its official publication but only if it affects the rights, freedoms and duties of a human being and citizen (due to para. 3 of Article 15 of the Russian Constitution). If such rights, freedoms and duties are not affected by the treaty, it may be applied in Russia without official publication;44 (b) Any international treaty that entered into force for Russia after 17 July 1995 (when the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 was put in force) has effect in Russia only after its official publication (due to para. 3 of Article 5 of that Federal Law No 101-FZ); (c) An international treaty that entered into force for Russia between 4 January 1991 and 25 December 1993 has effect in Russia only after its official publication, if it provides for the punishment of citizens or restricts their rights (due to part 2 of Article 35 of the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991. If it does not provide for such punishment or restriction of rights, it may be applied in Russia without official publication; (d) An international treaty that entered into force for Russia before 4 January 1992 (and for the USSR before 26 December 1991, i.e. before the day when it ceased to exist) has effect in Russia even without official publication, if it has been published or, in other words, made in some way or other generally known (not necessarily officially) but only if it concerns the rights, freedoms and duties of citizens (according to the Opinion of the USSR Committee for Constitutional Supervision On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens No 12 (2-12) of 29 November 1990). If it does not concern such rights, freedoms and duties, it may be applied in Russia even without publication; (e) The foregoing is true only if an appropriate international treaty did not or does not require the adoption of an internal Soviet or Russian regulatory act to validate its provisions. As it has been demonstrated above, all these conclusions follow from Soviet and Russian legislation in force in appropriate periods. However, for some reason the Plenum of the Higher Arbitrazh Court of Russia opted to resort to a different, more simplified, approach. It certainly pointed out that International treaties of the USSR that are binding on the Russian Federation 44 Besides, one should consider the possibility to extend the first and the second rules in para. 3 of Article 15 of the Russian Federation Constitution (Laws shall be officially published. Unpublished laws shall not be applicable) to international treaties of Russia (footnote 15 supra). From this it may follow that any international treaty which is subject to ratification must be officially published under threat of its inapplicability.

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as its legal successor were published in Collections of International Treaties of the USSR. Since not all such Collections have the status of official publications, as has already been mentioned, such an indication may be considered as an indirect recognition of the fact that an international treaty which entered into force for Russia before 25 December 1993 (or at least before 4 January 1992 when the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 became effective) is applicable in the Russian Federation even in the absence of its official publication, if it was still published, i.e. made in some way or other generally known (not necessarily officially). However, a direct indication rather than an indirect one would be preferable and it should have been mentioned that international treaties of the USSR were published unofficially not only in the above Collections. Having failed to point this out, the Plenum of the Higher Arbitrazh Court of Russia implied that such publications should not be taken into account, although it is not so. In addition, it should also be said that while part 2 of para. 1 of the Resolution of the Plenum of the Higher Arbitrazh Court of Russia No 8 of 11 June 1999 uses the term duly with regard to the wording made generally known (which may be construed as an indication to the need for an international treaty to be officially published), the succeeding part 3 of para. 1 and part 3 of para. 2 do not use the term duly and first just say that an international treaty is made generally known through publication and then point out that this may be done through other mass media and publishing houses. It is curious that the Plenum of the Higher Arbitrazh Court of Russia limited itself to the mentioning just publication, without clarifying the scale of such publication or saying what scale is reasonable. In this connection we may draw a parallel between Resolution No 8 and Opinion of the USSR Committee for Constitutional Supervision On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens No 12 (2-12) of 29 November 1990. Although neither the Opinion nor Resolution No 8 contain formal criteria on how a regulatory act (including an international treaty) should be duly made known generally in some way or other, it does not mean that such criteria do not exist: the wording made generally known indicates that there must be a certain minimal number of published or otherwise circulated copies, and this minimum must be determined applying the criteria of reasonableness. Furthermore, we have certain doubts about the reference contained in the Resolution of the Plenum of the Higher Arbitrazh Court of Russia No 8 to the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments Sodruzhestvo (Commonwealth). At least rule 28 Publication of Documents of the Rules of Procedure of the CIS Council of the Heads of States and the Council of the Heads of Governments (approved by the Decision of the CIS Council of the Heads of States in Moscow on 17 May

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199645 ) does not say anything about official publication: The full texts of documents, adopted by the Council of the Heads of States and the Council of the Heads of Governments and open for publication, are published in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments Sodruzhestvo which shall be forwarded to the States and the Charter bodies. We did not find any indication in other international treaties and internal regulatory acts of Russia that this Herald has official status or that the texts of international documents published therein are of an official nature. At the same time Russian internal regulations mention other domestic editions, publications which are of an official status. Besides, the Information Herald Sodruzhestvo is published in Minsk, Byelorussia, that is outside Russia. Considering all this, as well as the fact that international treaties may revoke or establish any legal norm, except a constitutional one,46 we can say that the publication of international treaties of the CIS member states in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments Sodruzhestvo will not be official under part 3 of Article 15 of the Russian Constitution (bearing in mind what has been said above with regard to the applicability of international treaties in Russia depending on their contents, the time of entry into force and ordinary or official mode of publication). Therefore many of the CIS treaties may not be applied directly in the Russian Federation. However, in its Judgment of 15 July 199847 the Supreme Court of Russia ruled otherwise (but without any substantiation of its position): Sirotenko filed a complaint with the Supreme Court of the RF, asking it to declare null and void... the Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 On Determination of the Goods Origin from the CIS Member States. He indicated hereat that According to para. 1 of the Directive of the State Customs Committee of 30 December 1996, the Rules for Determination of Country of the Goods Origin, approved on 24 September 1993 by the Decision of the Council of the Heads of Governments of Member States of the Commonwealth of the Independent States (inclusive of the revised version of para. 9 of the Rules, approved on 18 October 1996) should be applied to determine the origination of goods from the CIS Member States. In the opinion of Sirotenko, the State Customs Committee cannot instruct on the need of application of the said Rules, since the text of para. 9 in revised version has not been officially published on the territory of the Russian Federation and has only been published on the territory of the foreign state in

45 Ekonomicheskiy Soyyuz (Economic Union), Supplement to Rossiyskaya Gazeta, 26 April 1997; Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitelstv SNG Sodruzhestvo (Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments Commonwealth), 17 May 1996, No 3, p. 55. 46 Kommentariy k Federalnomu zakonu O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii (Commentary to the Federal Law On International Treaties of the Russian Federation). Moscow, 1996, p. 18. 47 Byulleten Verkhovnogo Suda Rossiyskoy Federatsii (Bulletin of the Supreme Court of the Russian Federation), 1999, No 1, pp. 10-11.

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the city of Minsk in the Republic of Belarus, in the Information Bulletin Sodruzhestvo No 4 (24) of the Council of the Heads of States and the Council of the Heads of Governments of Member States of the Commonwealth of the Independent States which is not an official source of publication of regulatory acts of the Russian Federation. The demand of Sirotenko to declare null and void the Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 On Determina- tion of the Goods Origin from the CIS Member States is not to be upheld, since the said Directive does not contradict the requirements of the legislation in force and does not violate the rights and freedoms of the applicant. The Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 was registered with the Ministry of Justice of the Russian Federation on 14 May 1997 under No 1303 and was published in accordance with the procedure, provided for by the Decree of the President of the Russian Federation No 763 of 23 May 1996. It cannot be omitted that the judgment excerpts published in the Bulletin of the Supreme Court of the Russian Federation do not contain the following provision which is present in the judgment: The arguments that the said Directive establishes in para. 1 the applicability of the Rules for Determination of Country of the Goods Origin, approved on 24 September 1993 by the Decision of the CIS Council of the Heads of Governments, cannot be the ground for upholding the demand of Sirotenko to declare null and void the Directive of 30 December 1996. The Decision of 24 September 1993 of the CIS Council of the Heads of Governments came into force and has effect on the territory of the Russian Federation.48 Was the Supreme Court of Russia not determined enough to have this opinion published? It is obvious that the Supreme Court of Russia either did not understand the claimants argument or did not want and could not disprove it. It cannot be contested that the decision of the CIS Council of the Heads of Governments came into force for the states which adopted it. But its effect on the Russian territory and possibilities for the Russian authorities to invoke it are very doubtful. Unfortunately, the same approach was used by the Arbitrazh Court of St. Petersburg and the Leningrad Region and the Federal Arbitrazh Court of the North- Western District in a dispute over the same Directive of the State Customs Committee of Russia No 01-14/1465 of 30 December 1996.49 Besides, the publication of an international act in the Information Herald Sodruzhestvo was held sufficient for direct effect of that act in Russia by the Federal Arbitrazh Court of the Ural District in the rulings50 of 11 December 1997 (case No F09-681/97-ÀÊ), 48 Not published. The citation is taken from the text which may be found in electronic law database Garant. 49 Galenskaya L.N. Primenenie mezhdunarodnykh dogovorov v arbitrazhnoy praktike (Application of International Treaties in Arbitrazh Practice). Zhurnal mezhdunarodnogo chastnogo prava (Journal of Private International Law), 1997, No 3 (17), pp. 6-7. 50 Not published. May be found in electronic law database KonsultantArbitrazh: Uralskiy Okrug (ConsultantArbitrazh: Ural District).

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of 16 January 1998 (case No F09-779/97-ÀÊ), of 21 January 1998 (case No F09- 782/97-ÀÊ), of 5 February 1999 (case No F09-15/99-ÀÊ), of 23 June 2000 (case No F09-591/2000-ÀÊ). The Court also rejected the arguments that the international act had to be published in Russian official editions. The Arbitrazh Court of the Nizhny Novgorod Region took up the same position on this issue in rendering the judgment of 21 May 1997 (case No À\16-4451 ). All this enables us to say that the Russian courts, while allowing the application of international treaties which became effective for Russia after 17 July 1995 (when the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 entered into force) and which were not officially published, repeatedly prefer a path that is different from that used in many developed countries. It is rather strange though that the Russian authorities did not declare so far the Information Herald Sodruzhestvo to be an official edition in Russia. Doing this is no hardship. The foregoing also gives us grounds to doubt, from the viewpoint of technical observance of the law, the faultlessness of the position of the Plenum of the Higher Arbitrazh Court of Russia, stated in paragraphs 1 and 2 of the Resolution On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure No 8 of 11 June 1999. At the same time it is obvious that the approach of the Plenum of the Higher Arbitrazh Court of Russia is a practice-oriented palliative called upon to smooth over the unsatisfactory situation regarding the official publication in Russia of its international treaties. It offers courts a simplified approach to applying international treaties instead of taking into account complex and confusing regulations, as well as preventing wherever possible some undesirable situations where arbitrazh courts refuse to apply international treaties, if they have not been officially published in Russia (even though the necessity of such a refusal arises from existing laws). It is quite clear that strict compliance with regulatory requirements by courts at a time when issues of publication of international treaties do not get enough attention from the executive power may have extremely undesirable consequences. For example, the Convention between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains (Moscow, 15 February 1994) entered into force on 18 April 1997. However, it was officially published only on 5 July 1999.52 The Convention between the United States of America and the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital (Washington, 17 June 1992) provides even a more impressive example. Although it entered into force on 16 December 1993 (that is before the Russian Constitution became effective), its provisions became partly applicable from 1 January 1994. However, it was officially

51 Not published. May be found in electronic law database Garant. 52 Collection of Legislation of the Russian Federation, 1999, No 27, item 3188.

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published only on 19 April 1999 (as it appears from its publication in the Collection of Legislation of the Russian Federation53 ). The texts of the two international treaties above were published unofficially many times. Obviously, the application of these treaties in Russia before their official publication may be justified only by the fact that they were made generally known unofficially, that is, through some mass media and publishing houses. Regrettably, courts have to get out of the situation created by the omission of the executive power, by disobeying direct instructions contained in the laws but such are the realities of modern Russian regulation. On the whole, considering all the circumstances, we believe that the approach chosen by the Plenum of the Higher Arbitrazh Court of Russia is the least of two evils: let the state courts apply the international treaties effective for Russia, though published unofficially, as often as possible even in non-accordance with the domestic regulation, rather than refuse to apply them on the ground that they have not been officially published, thus trying to observe technically the domestic regulation but encouraging there through omission of the executive power. It is one of the cases when non-compliance with internal legislation may happen to be fairer than compliance with it. However, such an approach should obviously be used with great caution and always with regard to the consequences of application or non-application of an international treaty that has been published unofficially. Moreover, there is another point that has to be emphasized separately: application of an international treaty published unofficially can never be allowed if this may result in disadvantageous consequences for an individual or a legal entity (which is not a state authority). This is particularly fair for disputes involving a state agency seeking application of unofficially published international treaty to its advantage. As is well known Verba fortius accipiuntur contra proferentem. From this contra preferentem rule it follows that the state, once having declared the necessity of official publication of international treaties, is to be precluded subsequently from invoking the absence of such publication or irrelevance of publication exclusively to its own benefit. Indeed, why should the state interests be treated with preference under the circumstances where the state itself failed to take care of official publishing? Unfortunately, the chances that this approach will be formally upheld by the Supreme Court of Russia and the Higher Arbitrazh Court of Russia are remote. Some courts can though take this approach into account in particular cases. For instance, it follows from the rulings54 of the Federal Arbitrazh Court of the Volgo- Vyatskiy District of 9 November 2001 (case No 1046/5-k) and of 9 November 2001 (case No 977/5k) that the Ivanovo Customs Office invoked against a commercial legal entity the Agreement between the Government of Russia and the Government of the Azerbaijan Republic on Principles of Indirect Taxes

53 Collection of Legislation of the Russian Federation, 1999, No 16, item 1938; Byulleten mezhdunarodnykh dogovorov (Bulletin of International Treaties), 1999, No 6, pp. 17-39. 54 Not published. May be found in electronic law database Garant.

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Collection in Mutual Trade. The Arbitrazh Court of Ivanovo Region held this Agreement inapplicable since it had not been published officially. The Federal Arbitrazh Court of the Volgo-Vyatskiy District affirmed the judgement. At the same time the Federal Arbitrazh Court referred also to the Decree of the President of the Russian Federation No 11 of 11 January 1993 and pointed out that the Agreement was not published or made generally known otherwise. The Court did not mention the need of official publication. So, now we can finally formulate our answers to the questions raised above. Could the Convention be applied in Russia from 1 September 1991? The answer to this question is obvious now: yes, it could be applied because it became effective before 25 December 1993 and since the legislation effective at the time55 did not link the applicability of the international treaties to their mandatory official publication, as it considered making their contents generally known in some way or other (including unofficial publication) to be sufficient. The aforesaid enables us to answer the second question put in the beginning of the present article: did the official publication of the Convention have any legal significance or was it not necessary at all? There can only be one answer to this question: the official publication of the Convention was necessary only for the purpose of eliminating all doubts regarding the applicability of the Convention in the Russian Federation. However, official publication to ensure the applicability of the Convention in Russia was not necessary for the reasons already stated above. Nevertheless, why was the Convention neither officially published in the Soviet Union nor in the Russian Federation before 1 February 1994 (the date when it is believed to have been officially published) even though it became effective for the USSR as far back as 1 September 1991? There are two aspects to the answer to this question: one is factual and the other is legal. As for the former, it is quite simple. The adoption by the Supreme Council of the USSR of the Resolution On the Accession of the Union of Soviet Socialist Republics to the UN Convention on Contracts for the International Sale of Goods No 1511-I was initiated, for a number of reasons, by the Ministry of External Economic Relations of the USSR. Of course, this Resolution was adopted with the consent of the Ministry of Foreign Affairs but its role in this process was not decisive. However, Article 5 of the USSR Law On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of Peoples Deputies of the USSR, the Supreme Council of the USSR and Their Bodies No 307-I of 31 July 1989 said: International treaties which have entered into force for the USSR, concluded on behalf of the USSR and ratified by the Supreme Council of the USSR, shall, upon submission by the USSR Ministry of Foreign Affairs, be published in Vedomosti Sezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR [Gazette of the Congress of the Peoples Deputies 55 Apart from the Declaration of Rights and Freedoms of a Human Being and Citizen of 22 November 1991 and the Resolution the Russian Constitutional Court of 30 November 1992. However, their applicability to the Convention is rather questionable.

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of the USSR and the Supreme Council of the USSR] (bold font supplied by the author A.M.). Obviously, the Convention was not published in the Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR or the Gazette of the Supreme Council of the USSR for technical reasons, namely due to the slow work of the Soviet bureaucratic mechanism and the lack of quick interaction between the Ministry of External Economic Relations and the Ministry of Foreign Affairs of the USSR. The period of about a year and a half appeared to be not enough for them to prepare the official publication of the Convention, especially since no one expected the USSR to collapse. Had the Resolution of the USSR Supreme Council No 1511-I been initiated by the Ministry of Foreign Affairs, the Convention might have been published in the Gazette of the Congress of Peoples Deputies of the USSR and the Supreme Council of the USSR or in the Gazette of the Supreme Council of the USSR. From a legal point of view, after the possibility of publishing the Convention in the official edition of the USSR Supreme Council (due to its termination) had been lost, it could not have been published in the official editions of the Russian Federation in principle. Indeed, it could not have been published in Vedomosti Sezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR (Gazette of the Congress of Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR) or Vedomosti Sezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoy Federatsii (Gazette of the Congress of Peoples Deputies of the Russian Federation and of the Supreme Council of the Russian Federation), because Article 5 of the RSFSR Law On the Procedure for Publication and Entry Into Force of the RSFSR Laws and Other Acts Adopted by the Congress of Peoples Deputies of the RSFSR, the Supreme Council of RSFSR and Their Bodies of 13 July 199056 said that International treaties, concluded on behalf of the RSFSR and ratified by the Supreme Council of the RSFSR, are published, upon submission by the Ministry of Foreign Affairs of the RSFSR, in Vedomosti Sezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR [Gazette of the Congress of the Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR]. As we can see, the Convention did not fall under this Article. It goes without saying that the Convention could not have been published in Sobranie aktov Prezidenta i Pravitelstva Rossiyskoy Federatsii (Collection of Acts of the President and the Government of the Russian Federation). Further, when such an official edition as Bulletin of International Treaties was launched, the Convention could not have been published therein either, because the Decree of the President of the Russian Federation On the Procedure for Publication of International Treaties of the Russian Federation No 11 of 11 January 199357 says:

56 Gazette of the Congress of the Peoples Deputies of the RSFSR and the Supreme Council of the RSFSR, 1990, No 6, item 93. 57 Collection of Acts of the President and the Government of the Russian Federation, 1993, No 3, item 182.

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1. International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are subject to official publication in the monthly Bulletin of International Treaties of Iuridicheskaya Literatura publishing house of the Administration of the President of the Russian Federation and also in the newspaper Rossiyskie Vesti in case of need. The said procedure applies to the international treaties of the Russian Federation, concluded or adhered to from 1 January 1992. Obviously, part 2 of para. 1 of this Decree did not cover the Convention. Finally, the Convention could not have been published in the Collection of Legislation of the Russian Federation, because the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 which established the publication of the international treaties in this Collection could not have been applied to the Convention. It covered the relations which arose after 17 July 1995, and its Article 30 Official Publication of International Treaties of the Russian Federation could not have been extended to the Convention due to its easily noticeable different scope of application: 1. International treaties which have entered into force for the Russian Federation, the resolutions on the binding nature of which for the Russian Federation were taken in the form of a Federal Law, shall be subject, upon submission by the Ministry of Foreign Affairs of the Russian Federation, to official publication in Collection of Legislation of the Russian Federation. We can say that the Convention was caught in a sort of a legal vacuum: the USSR which entered into the Convention ceased to exist, while for the Russian Federation the Convention turned out to be if not indispensable, then at the initial stage at least, not necessary or understandable. Relying on the above, it is interesting to compare the history of the publication of the Convention with the history of the publication in Russia of another international treaty, namely the Convention Abolishing the Requirement of Legalization for Foreign Public Documents of 5 October 1961.58 As is known, the accession to this Convention was approved by the Resolution of the Supreme Council of the USSR No 2119-I of 17 April 1991.59 This Convention became effective not for the USSR but for the Russian Federation on 31 May 1992. Technically, it was not covered by para. 1 of the Decree of the President of the Russian Federation On the Procedure for Publication of International Treaties of the Russian Federation No 11 of 11 January 1993 either: it was signed and acceded to before 1 January 1992. Nevertheless, this paragraph of the Decree might have been construed broadly, i.e. as covering those international treaties that became effective for Russia starting from 1 January 1992. Therefore the Convention Abolishing the Requirement of Legalization for Foreign Public Documents was officially published in the Bulletin of International Treaties, No 3 of 1993. 58 Bulletin of International Treaties, 1993, No 6, pp. 13-16. 59 Gazette of the Congress of the Peoples Deputies of the USSR and the Supreme Council of the USSR, 1991, No 17, item 496.

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Therefore we can say that if the Convention had entered into force not on 1 September 1991 but only four months later, it could have been published officially in the Bulletin of International Treaties. But since it did not happen and since the Convention was caught in a legal vacuum (as well as many other international documents), it is obvious that in 1993 the Ministry of Foreign Affairs of the Russian Federation realized that the only way out of this situation was publishing a special official edition containing all international treaties that had become effective for the USSR in 1991 and which had not been published officially since then. So in 1994 the publishing house Mezhdunarodnye Otnosheniya (International Relations) released in Moscow under the auspices of the Russian Ministry of Foreign Affairs the above mentioned book Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII. International Treaties Concluded by the USSR which Became Effective from 1 January through 31 December 1991, and are at Present Treaties of the Russian Federation as the Successor State of the Union of SSR. It finished a special series of collections of international treaties of the USSR that had begun in the 1920s. And the last question: can the Convention be published in current Russian official editions? Obviously, its publication in the Collection of Legislation of the Russian Federation is not possible due to para. 1 of Article 30 of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995. At the same time para. 2 of the same Article stipulates: International treaties which have entered into force for the Russian Federation (except treaties of inter- departmental nature) are also to be officially published, upon submission by the Ministry of Foreign Affairs of the Russian Federation, in the Bulletin of International Treaties. Therefore although this Federal Law applies to relations which arose after 17 July 1995, we can assume in principle that the Convention may be published in the Bulletin of International Treaties. But will it make sense now, especially after the Convention has already been officially published, although in a small number of copies? It is quite doubtful. We can assert on the whole that the Convention is luckier than other international treaties of the USSR that entered into force in 1991 (judging from the Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII , there were more than 100 of them). The lack of the official publication of the Convention up until 1994 was compensated by its numerous unofficial publications, since outstanding Russian lawyers took part in drafting, adopting and promoting this unique document. If it had not been for this and the importance of the Convention subject of regulation, it would not have been published unofficially and there would not have been accessible information about it which in turn would have raised the issue of its inapplicability from 1 September 1991. There is no doubt that other international agreements of the USSR were not so lucky in this respect than the Convention.

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So, after we have considered the issues connected with the official publication of the Convention in Russia, in conclusion we can point out some of the serious problems related to the application in Russia of its international treaties. Firstly, all of the above shows that Russian law does not offer clear and definite regulation of the dependence of applicability of different international treaties of the Russian Federation on their official publication. At least para. 3 of Article 15 of the Russian Constitution speaks of mandatory official publication of any regulatory acts (which should mean international treaties as well) which affect the rights, freedoms and duties of a human being and citizen, while para. 3 of Article 5 of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 199560 requires impliedly official publication of any international treaty to ensure its direct effect in the Russian Federation. Paragraphs 1 and 2 of Article 7 of the Russian Civil Code make things even more confusing. 1. The commonly recognized principles and norms of the international law and the international treaties of the Russian Federation are, in accordance with the Constitution of the Russian Federation, a component part of the legal system of the Russian Federation. 2. International treaties of the Russian Federation are directly applicable to relations, indicated in paragraphs 1 and 2 of Article 2 of the present Code, except in cases where it follows from an international treaty that adoption of a domestic act is required for its application. As can be seen, para. 2 of this Article may be construed as declaring the applicability of any international treaty regulating civil law relations, even though it has not been published officially. Obviously, anyone willing can find many such discrepancies in Russian law. Secondly, the issue of dependence of applicability of different international treaties of the USSR in the Russian Federation on their official or unofficial publication is very confusing. Thirdly, the history of the official publication of the Convention in Russia serves as a vivid example of how negligently and carelessly the state authorities carried out what was and is called reforms in the legal field in Russia in the beginning of the 1990s. Fourthly, the quality of official publications of international treaties creates great misgivings. If the Convention contained so many deficiencies, what can one anticipate as regards less important or less known international treaties? Fifthly, it is quite surprising that many international treaties are published rather a long time after they have become effective for Russia. All this may cause serious difficulties for the legal relations participants. Sixthly, it is even more surprising that many international treaties of the Russian Federation that have become effective and have been ratified have not yet been officially published. One of them, in particular, is the Seoul Convention Establishing the Multilateral Investment Guarantee Agency of 11 October 1985. It was ratified 60 Rossiyskaya Gazeta, 21 July 1995; Collection of Legislation of the Russian Federation, 1995, No 29, item 2757.

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by the Resolution of the Supreme Council of the Russian Federation No 4186-1 of 22 December 199261 but has not been officially published yet. There may be only one reason for this: either Russia has not deposited the instruments of ratification for this Convention, or it has been simply forgotten about this Convention. Both are equally discouraging. Seventhly, the law application authorities of the Russian Federation are in a difficult situation due to the above mentioned attitude of the executive power towards the publication of international treaties in Russia. Sometimes law application authorities may have the need to violate the internal regulation in order to protect the interests of those involved in legal relations. Besides, due to absence of clear and simple regulation of these issues, they use either simplistic approaches (as follows from paragraphs 1 and 2 of Resolution of the Plenum of the Higher Arbitrazh Court of Russia On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure No 8 of 11 June 1999) or ignore existing problems altogether (as the Supreme Court of Russia did in its Judgment of 15 July 1998). It is quite surprising that up to date the issues of international treaties publication have not been reduced to order, although it is no hardship. Government agencies show obvious indifference to these issues. Probably, some of them find applying double standards advantageous. Indeed, it is rather convenient to refer in one case to applicability in Russia of a particular international treaty and in the other to invoke the lack of official publication of the other treaty as an excuse for refusal to apply it. Reference to the following example cannot be omitted: the Federal Arbitrazh Court of the North-Caucasus District in the ruling of 19 August 1999 (case No F08-1639/99-426A, a commercial entity v. Rostov Customs Office62 ) indicated that the Customs Office had produced the Letter of the Ministry of Foreign Affairs of Russia No 4828/dp of 7 April 1997 with elucidation that according to para. 2 of Article 3063 of the Federal Law On International Treaties of the Russian Federation No 101-FZ of 15 July 1995 the coming of international treaty into force for Russia is not dependent on existence or absence of its official publication. The Customs Office did it in proving applicability in Russia of an international act such as the decision of the CIS Council of the Heads of Governments which had not been officially published. The arguments in the Letter of the Ministry of Foreign Affairs of Russia are true but the coming of an international treaty into force for Russia, as has already been explained above, is not to be ranked with the

61 Gazette of the Congress of Peoples Deputies of the Russian Federation in the Supreme Council of the Russian Federation, 1993, No 1, item 22. 62 Not published. May be found in electronic law database KonsultantArbitrazh: Severo-Kavkazskiy Okrug (ConsultantArbitrazh: North-Caucasus District). 63 International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are also to be officially published, upon submission by the Ministry of Foreign Affairs of the Russian Federation, in the Bulletin of International Treaties.

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applicability of that treaty by the Russian courts under the circumstances where it has not been officially published. It seems that the Customs Office tried intentionally to prove the contrary to the detriment of the commercial legal entity. Accordingly, one should always keep in mind the risk of the likewise approaches on the part of government agencies. All the above facts cannot have but negative consequences for the Russian law in its entirety. Of course, the above mentioned issues do not exhaust the problem of application of international treaties under Russian law. However, a mere description of other similar aspects would go beyond the scope of the present article and could be a topic for a separate article. Thus, the history of the official publication of the Convention in Russia reveals not only the negligence of Russian state authorities regarding the official publication of international treaties (the importance of which is not questionable) but also the lack of attention of the state authorities to the application of such treaties in the Russian law. This history also helps to understand how careful and diligent the Russian legislator, the law application bodies and any lawyer should be while dealing with every legal relationship of an international nature or with a foreign element.

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ON REMEDIES AVAILABLE TO A FOREIGN SHAREHOLDER IN ONE OF THE MOST NOTED TRIALS IN THE HISTORY OF THE RUSSIAN STOCK MARKET (1995-2000)

Yu.E. Monastyrsky * The year 1994 was characterized by a booming stock market in Russia and investors growing interest in securities of Russian issuers. There was the hope that the purchase of shares meant partaking of the profits of privatised state enterprises constituting the backbone of Soviet economy. Russias many brokers and new financial institutions were busy buying up super-lucrative shares to amass a controlling interest and then sell it at a profit. The demand for shares was «stimulated» by foreign pension funds and investment companies with a so-called «share of risky investment» in the clients assets they controlled. The securities issued by companies owning basic elements of national infrastructure (communications, electricity supply and so on), steadily and predictably profitable due to the rising demand for their services and products, were, in the vigorous revival of Russias stock market, objects of active speculation and frequent resale, spurred by hopes of a rise in value. Against the backdrop of growing prices of such shares, these securities offered the most lucrative prospects to invest available capital. At the same time, however, one admits that the regulating, administrative and controlling mechanisms of the stock market needed streamlining. There were frequent disputes, misunderstandings and amusing incidents, related to security transactions. Our law firm took part in one of the most illustrious, edifying and fascinating cases in which many legal niceties came to light. I. Peculiarities of Circulations of Shares The advent of the new economy was characterized by high profitability in some of the business sectors. First came retail trade (i.e. the kiosk trade in literal sense), followed by wholesale, based on massive import of short-supply but cheap consumers goods in the yet inchoate system of quality and compliance control. Second in yield was the commercial activity of banks vying with each other in promises to pay a higher interest on deposits and operating outside the rules of supervision over the safety of the clients funds.

*Yuri E. Monastyrsky LLD, «Monastyrsky, Zyuba, Semyonov & Partners» Law Firm.

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From the year 1994 one observed a booming trade in shares, supported by licensed and specialized participants: registrars, depositaries, investment institutions, consultants and so on. A special role in facilitating the deals with the widespread non-documentary shares was assigned to the «register-holder» or «registrar». His function was to promptly enter into the electronic database the accurate results of many transactions which, if executed, would trigger a continual change of owners of different blocks of shares. The company would be managed, based on the registrars data, because the individuals, entered in the register as shareholders, would get the appropriate number of votes for the shareholders meeting to take a decision. Moreover, the registrar also determined the amount of dividends paid out only to individuals registered as owning the required number of shares in the registration system. So the data derived from the registrar was final and binding for the executive bodies of the joint stock company. In the pursuit of their activity, the stock market agents had an economic interest in having minimum formalities. The advantage would go to the buyer or seller executing a deal faster than others during a clear rise or fall of prices. For this reason most shares sales agreements were signed, with the seller still having to buy an agreed number of shares under another, previously signed agreement on stock purchase in order to gain from the change of prices. Thus, the speculative deals were carried out outside the shares register system and the registrars data. There was great convenience and opportunity for people carrying out transactions through the electronic trading system whose rapidity, reliability, discipline and the sense of responsibility of the actors were factors of effective marketing of the securities. In the year 1994, however, many deals were closed outside the stock market, through acceptance of offers coming not from well known sellers, who, under the existing market customs, would not be asked to confirm the respective registration of their rights in the register. Another reason for the high development of the market outside the stock exchange was that the profit taxation system stimulated the participation of foreign, mainly offshore companies, which, settling their reciprocal payments for the transactions with Russian shares abroad, did not pay taxes in the Russian Federation. As to the income of the Russian legal entities, who, unlike foreign companies, could obtain a license of a professional stock exchange participant, it was to be deposited on the ruble accounts and thus to be taxed. The mechanisms of control over elementary reliability and bona fide nature of stock exchange operations were still imperfect, albeit spelled out in detail. The registrar was supposed to make an entry in the register and eliminate the previous entry if someone with powers of attorney would present the so-called transfer order from the shareholder. Two stamps affixed to the said documents were enough to transfer a block of shares worth, say, several million dollars, into the ownership of another person mentioned in the transferring instruction.

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Ignorance concerning the reliability and the bona fide nature of parties to transactions was thought to be compensated by the procedure whereby investment institutions and banks registered agreements on stock acquisition. The registration was supposed to be accompanied by verifying the legal entity of the transaction participants, and that to the registrar keeping the register, the stamp of the bank or the investment institution was thought to be proof that they either knew or recognized the counterparts. In practice, however, banks and investment institutions would register deals without due verification. Not responsible for the results of the execution of the contracts, they tried to increase the receipts from such an overly simple service by not encumbering it with formalities and thus attracting a large number of clients. II. Issues of Legal Regulation of Non-documentary Shares During and after 1994, major issues of non-documentary securities regulation persisted. The basic legislation (Regulation on the register of shareholders of a joint-stock company (approved by RF Goskomimushchestvo Instruction No.840-r, of 18.04.94) and the Federal Laws «On Securities Market» of 22.04.96 No. 39-FZ and «On Joint-Stock Companies» of 26.12.95 No. 208-FZ) were drafted in a less than perfect way. The principal deficiency, however, was the lack of clarity and «finesse» of the regulation concept and the content of the basic legal notions. Neither the legal regulations nor judicial practice nor even scholars themselves were unanimous in assigning the non-documentary shares to an appropriate type of property rights or things. A fascinating dispute on this matter continued on pages of legal journals. Those claiming non-documentary shares to be rights managed to incorporate the notion of a «holder of a right to a non-documentary security» in Article 149 of the RF Civil Code. At the same time, it was not clear how the bona fide purchaser rule was applied to such shares (which applied to material objects only), without which a normal and sustainable turnover of stock is impossible since a defect or disruption in the remotest link of the chain of preceding transactions could nullify any shareholders right to a non-documentary security under the well-known Roman axiom: nemo ad alium plus juris transferre potest, quam ipse habet (nobody can transfer more rights than he has), laid down in Article 384 of the RF Civil Code. The law-makers have vainly tried to solve the problem, only creating glaring and large-scale contradictions in regulation. The term «right of ownership on issued securities», including non-documentary, was incorporated in Article 28 of the Law «On securities market». It was still unclear whether the expression of the «right of ownership on non-documentary securities as intangible assets ought to be considered as conventional, as there could be no ownership as regard with a right, or the enactment of specific rule actually aimed at changing the legal status of non-documentary shares.

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The provisions concerning the bona fide acquisition of non-documentary shares did not quite correspond to the jus civile concept of this principle as laid down in Article 302 of the RF Civil Code. Article 2 of the Law «On securities market» introduced the notion of a «bona fide purchaser». He is a person who, without the knowledge of the illegality of his counterpart, has already payed for the acquired securities. Consequently, the purchaser who hasnt paid for the shares due to the provision on delayed payment, could not be protected, while under the RF Civil Code (Article 302) the bona fide attribute means being unaware of the illegality without exercising of negligence in concluding the transaction, even if it happens to be free of charge. The Provisional Regulation On maintenance of register of the nominal securities owners (approved by decision of 12.07.95 No. 3 of the Federal Securities and Stock Market Commission under the RF Government) was effective from July 1995. This subordinate legislation came to include the rule (part 3.1.7), which further blurred the significance, role, scope and application of the legal principle in question. According to the provisional regulation, nominal non-documentary securities could not be requested from the bona fide purchaser. It was still unclear whether the rule should not apply either because it contradicted the RF Civil Code, supreme legislation, or because it resulted from the poor legislative drafting in attempt to extend the legal regime of things to the non- documentary securities concerning the protection of the bona fide purchaser through exposition of only a part of the rule. The said regulation could cover a more limited number of cases only the impossibility of recovering non-documentary securities, while if they, were stolen, then the general rule would require them requested. At the same time, certain legal scholars considered the rule provided by the Provisional Regulation as a legitimate exclusion from the RF Civil Code. Another problem in the legal regulation of non-documentary securities was the ambiguity of the registrars legal status, his competence and responsibility. Certain commentators characterized him as the person who essentially keeps the clients shares as «alien corn in the barn» and thus is responsible for their loss or incorrect transfer. Others asserted that the registrar merely performs the technical registration of transaction results as the professional controller of their accurate entry, responsible for safe maintenance of the register. It did not clearly follow from the analysis of those regulations whether or not the registrar was a kind of issuers representative, authorized to keep the register. In the former case the registrar had to obey the issuer, while the latter was supposed to be responsible for the actions of the registrar. At the same time, on the one hand, there was the term «independent registrar», while on the other rules were being introduced to the effect that the issuer «shall not be released from responsibility» for the maintenance and conduct of the register (Article 5.3, Regulations on register of shareholders of joint-stock company). The said principal issues of legal regulation of non-documentary securities were bound to generate difficulties and obnoxious omissions when the parties

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sought an effective way of legal defense. This is what happened during the court hearings which we address below. III. Theft of a Large Block of Shares from The AO Rostelecom Register and the Ccircumstances of the Ensuring Dispute In November 1994 a certain gentleman came to the organization (hereinafter, the «Responsible Registrar») which kept the register of AO Rostelecom. He was provided with powers of attorney from the shareholder (hereinafter, the «Foreign Shareholder») and an instruction to transfer a large block of shares of a Bahamas company (hereinafter the «Bahamas company»), as well as powers of attorney from the Bahamas company and the transferring instruction on the further transfer of the securities to the account of a company in Cyprus (hereinafter the «Purchaser»). He also presented the agreements to purchase the shares. Sensing nothing suspicious in the overly routine and oft-repeated operation, the Responsible Registrars officials transferred the shares to the account of the Purchaser and made the appropriate entry in the register. Quite a long time passed before the Foreign Shareholder discovered that he had a much smaller number of shares. A dispute arose. The claims of the Foreign Shareholder (hereinafter the «Plaintiff») were mainly addressed to the Responsible Registrar who, it turned out, made the entry based on forged documents, thus allowing a major theft to happen. Unidentified frauds had illegally appropriated and sold to the Purchaser a block of shares which, at the peak of their value, amounted to 15 million dollars. The request of the Foreign Shareholder to have the entry restored was declined by the Responsible Registrar. The latter produced from his files two powers of attorney, two transferring instructions and two simple share sale agreements with one forged bank entry concerning registration. The only apparent negligence of the Responsible Registrars officials was not paying any attention to the fact that the transfer order indicated the Foreign Shareholder as the nominee holder of the shares while the register referred to him as a shareholder. The head of the Foreign Shareholder claimed that he did not sign either the powers of attorney or the transferring instruction. In the ensuing criminal case, the block of shares held by the Purchaser, was arrested under Article 175 of the RF Criminal Procedural Code. The investigator ordered an expert examination which found that the signatures on the powers of attorney and the transferring instruction were forged. It became clear that such a fraudulent scheme could be devised by those with access to the Foreign Shareholders confidential information, possibly through his employees or persons who had been monitoring the operations on the stock market. By now are we able to observe that the authors of this crime are still not found after seven years. But let us now come close to the ensuing economic dispute.

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IV. Initial Stage of Litigation Shareholder claimed that the two successive transactions shall be found null and void and that the entries be restored in the shareholder register. The principal defendants in the case were the Responsible Registrar and our client, AO «Rostelecom». The sides to the transactions were called to join the litigation as third parties. Following this legal logic, the Foreign Shareholder accomplished some temporary results. The block of shares, held by the Purchaser, was arrested once again as a collateral, while the claim was granted with the ruling: «to obligate the registrar to restore the entry in the register». The Responsible Registrar attempted to defend himself by adducing two arguments, but to no avail. Firstly, he asserted that, in making the entry, he acted prima facie in good faith and in accordance with the applicable procedure. Secondly, the Responsible Registrar suggested the following qualification of the transaction between the Bahamas company and the Purchaser: it must be valid since the Purchaser received the shares encumbered with the rights of a third party, i.e. the Foreign Shareholder, which should only reduce the purchase price of the shares (Article 78 of the USSR Fundamentals of Civil Legislation). However, the latter version failed to get upheld by the court. The latter deemed both transactions invalid according to presented evidences, and accordingly adjudged the Responsible Registrar to restore the entry in the register. The Court passed a judgment which was quite bizarre in its essence. As to the claim to apply the consequences of the nullity of the invalidity of transactions, the court, firstly, did not call any of the participants as defendants, but only chose to treat them as third parties, which, by their procedural status could not be compelled to compensate, although the invalidity of the transactions leads to restitution between the parties and the obligation to return whatever had been received under the transaction in question; secondly, it obligated the Responsible Registrar to restore the entry, i.e. the rights of the Foreign Shareholder to the non-documentary shares, but did not specify from whom these non-documentary shares should have been taken. It was natural that such a paradoxical decision could not stand, and soon it was appealed and rescinded, while the case was returned for a new adjudication by the Court of original jurisdiction. In our opinion, such a failure of the court proceedings is explained by the wrong choice of remedy. We believe that the Plaintiff could obtain positive results much faster and simpler if he submitted a claim only to the Purchaser, without calling a plurality of persons to participate in litigation. In the meantime, the Part 1 of the RF Civil Code had already came into effect. Article 149 permitted obligating the Purchaser, not the Responsible Registrar, to restore the rights of the Foreign Shareholder, as supported by the non-documentary shares under Article 12, Part 3 of the RF Civil Code, because the Foreign Shareholder, firstly, was incorrectly and against his will deprived of the possession of shares and, secondly, these rights as a form of property were individualized and kept on the personal account of the

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Purchaser and under arrest. It was the Purchaser, not the Responsible Registrar, that was the possession of these rights. The fact of their potentially bona fide acquisition was of no legal effect as it was possible to assert that the rule to defend the bona fide purchaser under Article 384 of the RF Civil Code was not applicable to the rights. The Foreign Shareholders lawyers preferred however to stick to certain interpretation of the legal status of the registrar, which proved to be quite disadvantageous for them. They obviously considered him to be the responsible holder of the shares who in this particular case made a mistake and displaced things belonging to the Foreign Shareholder from one cell and put it in another, so nothing could prevent him, the holder, from restoring the shares to the first cell. As opposite to the above position, Article 149 of the RF Civil Code describes the registrar as the one who merely registers or fixes the rights of shareholders, and to whom the function of keeping the register is delegated by the joint-stock company under certain conditions. V. New Claims from the Foreign Shareholder. The Number of Litigeous Participants Increases In that complex and drawn out case our law firm represented the interests of the issuer of the shares Joint stock company (AO)»Rostelecom» and his New Registrar who replaced the previous after such an outrageous and notable case of fraud. Not long before our joining the case, almost two years after its start, the Foreign Shareholder filed three new claims, aiming at having his losses indemnified either at the expense of the Purchaser or the Responsible Registrar or at the expense of AO «Rostelecom» the largest and well-solvent participant from whom the indemnification would be the simpler and faster. The Foreign Shareholder claimed that the AO «Rostelecom» compensate the damage based on part 1 of Presidential Decree No. 1769 of 27.10.93 «On Measures to Safeguard the Rights of Shareholders», that the issuer is obligated to ensure the keeping of the register. This claim in question was the most dangerous one for our client, and if granted, could amount to losing the case. Two more requests, aimed at satisfying the claims to the Purchaser or the New Registrar, in our opinion, were not quite promising in concept, given that the prospect of having them satisfied under that circumstances was not reasonably estimated. The content of the new claims from the foreign shareholder and the way his arguments were coordinated should be addressed briefly. In the second hearing of the original case, the Foreign Shareholder changed the content of the pleading part of his claim and invoked a new remedy to apply the consequences of the invalidity to two null and void transactions which successive performance resulted in the block of shares getting transferred to the Purchaser. In this regard the Bahamas company and the Purchaser, who had concluded the allegedly null and void transaction were indicated as defendants.

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Purchaser was claimed to be obligated to return the shares as the transaction to purchase the shares was invalid for the reason of «being based on a previous invalid transaction». The second claim was based on the use of the concept of losses and, as mentioned above was addressed not to the Purchaser but to our client, AO «Rostelecom», and to the Responsible Registrar. The claim contained a reference to the general rule that AO «Rostelecom» was responsible, firstly, for the choice of the registrar, and, secondly, for the accurate conduct of the register and the safety of the entries. The demands of the second claim relied on joint liability of the debtors that were commercial legal entities (Article 322 of the RF Civil Code). Satisfying the second claim opened the door for recovery of the equivalent of the fair market value of AO «Rostelecom» shares or the positive price margin, if, in different case, the Foreign Shareholder was awarded to get the non-documentary shares in kind. The third claim against the New Registrar and AO «Rostelecom» pleaded for recognition of invalidity of the register entries on Purchasers ownership of shares and restoration of the previous entry that had been annulled as a result of the fraudulent actions by the unidentified criminals. The Foreign Shareholders lawyers presented the following argumentation supporting their claims. The entry on the transfer of the block of shares from the personal account of the Foreign Shareholder to that of the Bahamas company was made without due juridical grounds and thus was invalid, i.e. having no legal implications, which was why the previous entry had to be restored. Our client (the AO «Rostelecom») was involved as a co- defendant, since under part 5.3 of the said Regulation On the register of the joint- stock company the issuer was responsible for the registrars mistakes. The Foreign Shareholders lawyers insisted on defining the legal status of the Responsible Registrar as the representative of AO «Rostelecom». The fourth claim pleaded as follows: to recognize the rights of ownership of the shares, to request the return of the shares from the Purchasers unlawful possession. The claim filed against the Purchaser as a defendant, while the AO «Rostelecom» was indicated as the third party. The Foreign Shareholders claim was based on inaccurate legal construction of the nature of a share as a security: the non-documentary security was not only referred to as a tangible asset, subject to the right of ownership (contrary to Article 149 of the RF Civil Code, this is asserted by Article 28 of the Law «On Securities Market»), but also admitted of splitting the right of ownership with regard to non-documentary shares. There was no doubt that in this case the Claimants lawyers had been misled. According to their own reasoning one could, still remaining the so-called owner of the shares, transfer a part of the rights to them and thus forfeit the corresponding self-legitimacy as the titular shareholder. It turns out that the person entered in the register may not be the owner of all the rights to the shares, since the previous shareholder transferred to him only a part of the rights. There is no need to dwell

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at length on how much this contradicted to the very notion of a security as a document or an entry which linked all the rights in a way that they could not be transferred or exercised without the transfer or presentation of the appropriate document or data on the entry (part 1, Article 142 of the RF Civil Code). As an instrument of a market economy, shares can only exist as instruments publicly certifying the rights unencumbered with liens or property-related powers «in a pure form». If a security could be linked with undesignated encumbrance or a reduced set of rights, this would have meant that the principal function of securities couldnt be realized. Representing the defendants, we were satisfied with this ambiguity of claims, which had not been eliminated at the Courts initiative as it should have happened in the case like that. In the contested proceeding, hearing out the arguments of the parties, the judge is supposed to specify the substance of the demands and, if they are not formulated correctly, suggest their adjustment. Regardless of the above the court must decline the claims presented so incorrectly that their satisfaction and enforcement would be simply impossible. The most conspicuous, and perhaps the most amusing case in point is the third claim to recognize the entry, made by the Responsible Registrar, invalid «in virtue of failure to accord to the actual circulation of shares» and to restore the previous entry. It appears that the entry itself cannot be deemed invalid in the civilis meaning of the word. Invalid or devoid of legal effect there could be admitted the acts (such as transactions), or the legislative acts of authorities i.e. the legal facts that affect the emerge or existence of legal relationship. It is more correct in some situations to describe an entry as false, incomplete and so on. If the court accepts that the grounds for making an entry are invalid, this does not deprive the entry itself of a legal meaning. «Restoring the previous entry» is an imprecise term, for it is not possible to recreate what has disappeared or been destroyed, one can create something new but identical to the old. The entry complying with the formal requirements always has a legal meaning. What is admissible its replacement with another «valid» entry based on the transfer of ownership rights by according to contractual obligations or Courts order. Notable Russian legal scholar, E.A. Sukhanov points out that «an entry on the account», stored in the computer memory and made by its «owner» cannot be lost or transferred to another person despite the observance of any amount of formalities: it is just that one entry is simply changed or destroyed and replaced by another entry».1 In our opinion, there was also little promise in the case involving application of the consequences of invalidity of null and void transactions. Firstly, in the event of satisfying these related claims the block of shares should have been transferred to the Bahamas company and then the Bahamas company would turn it over to the

1 Commentary to the part 1 of Civil Code RF, Moscow. 1996, p. 22.

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Foreign Shareholder. Considering, however, that the foreign claimant and two foreign defendants participated in the case, it would tend to substantially prolong the process. Secondly, it was still unclear why the second transaction should be deemed invalid as it had been «based on the previous invalid transaction». To support the latter, the Foreign Shareholders lawyers actively used an ambiguous argument that the second transaction between the Bahamas company and the Purchaser must be admitted found void, since the Bahamas company disposed shares that had not belonged to it «in the right of ownership» at the time of the contract conclusion, although it is common knowledge that the seller has the right to enter agreements on transfer of movable property as well as ownership rights (part 4, Article 454 of the RF Civil Code) that he only intends to purchase (part 2, Article 455 of the RF Civil Code) and these rules are also applicable to the transfer of shares. VI. The Course of the Court Hearing The second stage of the court hearings was notable because a large number of defendants and third parties participating in different cases and different combinations. It was unavoidable for the defendants to be divided by their own preferences concerning the litigation strategy such as the possibility to speed up or suspend certain court proceedings with the help of trial ploys. Our clients interest was that the Court reached a decision awarding the Foreign Shareholder to recover all from the Purchaser. Other participants were interested that under the second claim our client (a largest nation communications operator) would have to indemnify all Foreign Shareholders losses, including of what had constituted the price difference in the block of shares. The latter decision would threaten the well-being of AO Rostelecom and thus at least procedural barriers ought to have been erected to prevent it. The hearings on the third claim to restore the entry were also fraught with a decision unfavourable to our second client the New Registrar. The claim however was based on arguments already rejected by the court of appeals which had dismissed the first decision. In the above cases (on recovery of losses and restoring the entry) we planned to file the motion to suspend the hearings on the ground of the impossibility of a decision being passed before the end of proceeding on the related cases. Regardless of this, our lawyers carried out a painstaking legal analysis and elaborated the substantial arguments on the matter. As to the case of the losses recovery, we filed the points of defence, where we asserted, that according to the applicable civil doctrine, the circumstances of the case should be construed as tort (causing harm) that is to be indemnified by the actual tortfeasor (Article 1064 of the RF Civil Code, Article 126, parts 1, 5 of the USSR Fundamentals of Civil Legislation). We pointed out that the grounds for civil obligations accrual are limited to those that listed in articles 3, 57 of the USSR Foundations of Civil Legislation

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(Article 307 of the RF Civil Code). In his claim, the Foreign Shareholder cited the provisions related to extra-contractual obligations to compensate the losses, i.e. the damage, notwithstanding the fact that Article 1064 of the RF Civil Code (Article 126 of the USSR Foundations of Civil Legislation) provided a mandatory principle that the caused harm should be compensated solely by the tortfeasor. We further asserted that by the time of the unlawful withdrawal of the shares (November 1994) there were no legal regulations concerning the responsibility of the issuer (AO «Rostelecom») for the mistakes of the registrar. The provision concerning responsibility for the actions of the Registrar were enacted only in 1995 according to an amendment into the Presidents Decree «On Measures to Safeguard the Rights of Shareholders» No. 1769 of 27.10.93 and thus could not be applied to the circumstances that had existed before. In addition, the issuer who authorized Responsible Registrar to conduct the register, is only responsible for the technical safety of the register entries in general and its ceaseless conduct, but not for the actions of the Responsible Registrar which fall within the framework of carrying out his professional and licensed activity of register the transactions with the issuers shares, on which the latter is not informed at all. In our response to the claim it was also accented that the arguments of the Foreign Shareholder on the alleged existence of the solidary obligations of the Responsible Registrar and AO «Rostelecom», had no legal authority because in the year 1994 the applicable rules were those of the Foundations of Civil Legislation of the USSR and the Union Republics, part 2, Article 67, which provided direct statement of law or the parties agreement as sole condition for joint liability, which was not the case at that time. Our firm also raised the following objections to the claim: The New Registrar had the status of an independent Register Holder (Registrar). Article 149 of the RF Civil Code provides that in cases defined by the law, the person who had been granted a license could register the rights certified by named non-documentary security. The applicable regulations provided limited grounds for making changes in the register: the owners order to transfer securities; other documents confirming the transfer of the rights to securities under the RF Civil Code (for instance, the Court addressed to the shareholders or documents of inheritance). By the time of litigation, the New Registrar was not obligated to make entries as there were no orders from Court or persons included in the register. All the three new claims were filed in November 1997. The most important of claims had failed from the outset. The shares recovery claim was declined by the court on the ground that the address of the Defendant (Purchaser) had been provided in English. The court applied the rule on the formal defect of the claim, citing Article 8 of the Code of Arbitral Procedure, which

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indicates Russian as the official procedural language. To file a corrected claim would have opened the possibility for the Purchaser to raise the objections as to the statute of limitations. As to the expiration of the three-year statute of limitations, it could be asserted by Claimant that he was not supposed to know about the violation of his rights exactly in November 1994 because he had not been obligated to inquire on the condition of his account in the register and also because the filing of a claim as to the case of the nullity of the transactions restored the limitations term (Article 203 of the RF Civil Code). Nevertheless, apparently in order to avoid the risk, the Courts decision to decline the claim on the said formal ground was appealed by the Foreign Shareholder. The court of appeals upheld the decision of the lower Court, however the Foreign Shareholder prevailed in the Court of cassation, and the case for the recovery of the shares, the most favourable case for us, was sent to the court of the original jurisdiction to be adjudicated. The case on losses recovery was initially dismissed according to the motion of the Responsible Registrar. The latter had discovered that under the Foreign Shareholders Charter, the powers of attorney on its behalf should be signed by two directors simultaneously. The Claim was signed although by a person who had been authorized by the powers of attorney which had been signed by one of two directors. The Foreign Shareholder appealed the court decision to dismiss which was satisfied only by the court of cassation, the latter had considered not only the provisions of the Charter but also the Irish law on companies of 1965- 1990. Construction of the provisions of that law admitted of the effect of the powers of attorney issued by one director. Thus, the case on losses recovery, the most unfavourable one for the AO «Rostelecom», was also passed to the first curcuit court. Prior to the beginning of hearings on the recovery losses case, the Foreign Shareholder filed a motion to suspend the hearings until the resolution of the disputes regarding the invalidity of the transactions and recovery of shares. It is not clear what reasons or estimations brought the lawyers of the Foreign Shareholder to another strategic mistake. Suspending a case could hardly be deemed reasonable. The case was favourable to them and non-contradicting to any of the other filed claims, moreover the participation of foreign companies was not required in the proceedings otherwise there was no need to notify them through diplomatic channels. Apparently, the Foreign Shareholder was convinced that the case on invalid transactions was a most important for them. Meanwhile, the court of cassation decision declining the previous decision regarding two successive deals as invalid, pointed to the need to «specify the requirements of the Plaintiff.» In the judicial parlance this meant that the claim ought to be changed in question and the grounds for it should be based on different rules and so on. The motion was very actively argued in hearings. The Purchaser categorically objected to the suspension of the case, alleging that the recovery of losses case,

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was a separate matter, that the clarification of circumstances and modalities of the liability of the Responsible Registrar and the AO «Rostelecom» was in no way related to the nullity of the deals and the application of appropriate legal consequences, and that the real issue was mere proof of negligence of AO «Rostelecom» in choosing the registrar, etc. We supported the motion, arguing that without the courts most important determination on whether the Purchaser had acted in good faith the possible guilt of the Foreign Shareholder and the involvement its responsible employees in fraud, it was impossible to consider issue of liability of the AO «Rostelecom» and its ex-registrar. The court granted a motion and suspended the case, which was the most unfavourable one to our client. It is noteworthy, that the court decision to dismiss the claim to recover the losses was actively appealed by the Purchaser, who participated in hearing as a third party. His appeal was declined. The court of cassation upheld the following arguments which were raised by us in response to the claim.

In response to the Purchasers allegation that the court may suspend the case only after it had started to adjudicate it on the merits, we cited the provision of Article 81 of the RF Arbitral Procedure Code, which provides the rules applicable to the pre-hearing proceedings but not to the adjudicating the case on the merits and argued that, under Chapter 14 of the RF Arbitral Procedure Code, the first stage of litigation was the submission of claim rather than Court hearing (Chapter 16 of the RF Administrative Procedure Code).

In his cassation appeal the Purchaser also alleged that the court had significantly restricted his procedural right under Articles 33 and 39 of the RF Arbitral Procedure Code by narrowing the framework of the hearing to a mere consideration of the motion. We objected to this since the very concept of case suspension, as laid down in Chapter 8 of the RF Arbitral Procedure Code, is not aimed to restrict the rights of the individuals involved in the case, but rather at ensuring the examination of all relevant evidence after the hearing renewal. The rights of parties to a case are observed to a greater extent after the court has resumed examining the losses recovery case following the delivery of the decisions in other trials since, for instance, the circumstances of the shares recovery case are directly linked with the grounds for the claim in the case in question, and delivered decisions could have res judicata effect for the suspended case. We have also managed to reach the suspension of case on restoration of entry. Thus, the proceedings which threatened our clients turned out to be suspended. Then the Purchaser tried the same stratagem to suspend the shares recovery case, in which he was the principal Defendant. This was to no advantage for our clients, therefore we actively objected his motions. The court of appeal granted our motion not to suspend the case.

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Further on, however, the other consequences of the conceptual strategic mistake of the Foreign Shareholders lawyers in choosing a wrong request, which was to apply the consequences of the invalidity of void transactions, came to effect. This implied judicial proceedings involving a large number of foreign participants had no interest in adjudication. In preparing for the hearings, the court had to, (according to Russias commitments under the 1954 Hague Convention Relating to Civil Procedure (Article 1), notify foreign respondents and third parties through diplomatic channels. This led to an automatic and, alas, inevitable delay in litigation. With the aim to delay the resolution of the shares recovery case, the Purchaser succeeded in decision to call the Bahamas company as a third party in the case that was most disadvantageous to him. Unfortunately, such decision is not subject to appeal under Article 160 of the RF Arbitral Procedure Code. The failure of foreign participants appear for the hearings had forced the judges to postpone hearings by three to six months at a time. Over a year elapsed in this manner. VII. Crucial Motion from AO «ROSTELECOM» Our clients were not happy with the development of the proceedings. The situation kept them on edge and involved expenditures; worse, pending cases that involved claims worth millions of dollars tended to affect the financial indicators in the reporting periods and made the AO «Rostelecom» stock less attractive to investors. We were asked to speed up the dispute resolution process, therefore an additional analysis of the proceedings was conducted that brought us to the following conclusion: (1) to move for elimination of Bahamas company from the process, because the latter, as followed from the newly presented documents, had been temporarily excluded from the register of legal entities at the place of incorporation for failure to pay the annual fee (2) to explore the matter of the Purchaser having acted obviously in bad faith when buying the shares. We drafted and filed the addendums to the statement of defence to the Court and to the parties, where we argued that in the shares recovery case there existed the following circumstances indicating the Purchasers bad faith. 1. The Purchaser acquired the disputed shares through his proxy, a broker on the securities market. Less than two weeks before the acquisition of the shares from the Bahamas company, the Purchaser had signed a contract with the broker, under which the latter had acted on behalf and at the expense of the Purchaser as his representative. 2. The counterparty of the Purchaser under the brokerage services contract entered a sales agreement sygned by someone with a Russian name, indicated in the text of the agreement as «the authorized representative acting in accordance with the Charter» of the Bahamas company. Meanwhile, the person authorized to sign agreements, under the RF legislation and under the 1989 Law of the Bahamas

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Islands, should be either the director (general director, president) of the company or a person acting under legalized powers of attorney. We argued that the above circumstances should have arisen the suspicions of a prudent contractor who concluded the agreement worth several million US dollars as regards the autharity of the Purchasers counterpart to dispose of the shares. We insisted that the Purchasers representative did not duly abided the business customs as they had developed on the Russian stock market by 1994 and did not exercise due diligence, which brought about a situation in which the Purchaser himself could be regarded as a person acting in bad faith and committing, through his broker, an act of gross negligence. The above developments, as we stated in the addendum to the statement of defence, made it possible to reach at a sufficiently well-grounded conclusion to the effect that, at any rate, there was no exercise of due care, caution and diligence in establishing whether the person disposing of the shares as benefit of the Purchaser had the authority to do so. We further asserted, on behalf of the client, that there were grounds for satisfying the claim at the expense of the Purchaser by virtue of his representative having acted in bad faith in purchasing the disputed block of shares. The motion to exclude the Bahamas company from the proceedings was based on Article 161 of the USSR Fundamentals of Civil Legislation on the personal status of the legal entity and the interpretation of the provision of the Bahamas foreign companies law to the effect that the legal entities excluded from the register but not liquidated had their legal capacity restricted and thus could participate in litigation only as defendants. Hence, we concluded that such persons could not act on the side of the Plaintiff or the third party and that was why their participation in court proceedings on the territory of Russia was not possible and meant no importance for the dispute resolution. Outrunning the story, we should mention here, that the addendum to the statement of defence, although not evaluated by the court by virtue of the circumstances outlined below, produced due effect: having considered them, the Purchaser entered into negotiations with the Foreign Shareholder to settle the dispute and to conclude an agreement. Under the settlement agreement and for an appropriate undisclosed consideration, the Foreign Shareholder withdrowed all the claims and these withdrawal were accepted by the court. The Purchaser became due owner of the block of shares he had purchased. AO «Rostelecom» and the New Registrar were only supposed not to objection to the revocation of the claims. Thus, this long-drawn-out, complex and one of the most noted cases ended favourably to our clients, who were not required to reimburse or transfer anything to anyone.

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VIII. In Remedies Avaliable to Purchaser of Non-documentary Shares. Conclusions The court proceedings described above, require a separate analysis and discussion for a number of reasons. They brought to light some of the problems of legal regulation of the times when our national economy was going through the first period of rapid growth, not based on actual development of production of goods or services but merely on investment expectations, and therefore was fraught with a similarly rapid meltdown of the financial markets. The said drawbacks of the legal regulation on securities circulation and the lack of judicial practice regarding the respective legal concepts, revealed themselves in the proceedings and cases described. Since, non-documentary registered shares have gained wide commercial usage in Russia, the crucial legal issue of protection of good-faith purchasers has also emerged. Article 302, which is included in Chapter 20 on «Protection of Right of Ownership and Other Rights In Rem», of the RF Civil Code only applies to the rights in rem, but not to the right in personam. Although, Article 28 of the Law «On Securities Market» provides the ownership right to the non-documentary securities, the latter could not be construed as the material objects. That would directly contradict to the literal meaning of Article 149 of the RF Civil Code. The mixture of non-documentary shares and things could cause a great confusion and many misunderstandings as the entire structure of the civil concept of ownership is designed for the regulation of the material objects. For instance, if one considers non-documentary shares as material objects, one must admit that they remain with the registrar, whose legal status is to be then determined by the bailment regulations under Article 906 of the RF Civil Code, that the registrar is obligated, as regard to each and every shareholder, to deliver an appropriate number of shares, and that in general there is direct correlation between the registrar and the bank collecting the deposits from clients. However, this does not quite conforms with the nature of the registrar-shareholder relationship. The former never collects shares from a client and is not obligated to return them in the event, for instance, of a new issue of shares, distributed in proportion among the shareholders. This is a function of the issuer. Furthermore, if one admits that non-documentary shares have material substance, while the things are property with material substance (weight, form and dimension), and that such shares are «kept» by the registrar, the liability for negligence (part 2, Article 901 of the RF Civil Code) and any mistakes of the latter should be regulated by the provisions of the contract of bailment, and one can file a claim to have an entry in the shareholders register restored. It would not be realistic however to have such a claim adjudicated because of the intangible essence of non-documentary securities.

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If one treats non-documentary shares as things, the agreement to sale them automatically falls within the provisions of part 3, Chapter 30 of the RF Civil Code on goods supply agreements, while these provisions explicitly barred from application to the sale of such shares. The above mentioned civil case has made it possible to conclude that it could only be accurate to consider non-documentary securities as property rights, rather than things. The concept of ownership does not apply in this case, because in the event of an actual dispute, the remedies in rem proved to be inapplicable. Meanwhile, it is vitally important for the securities market to have the bona fide purchaser concept as regard to non-documentary shares. The aim of the concept is to protect the commercial turnover from unjustified claims by third parties that could undermine the confidence of any shareholder in the soundness and integrity of his or her title.

It is a common knowledge that there are rights on shares (the right to sell or mortgage them, or otherwise dispose of them) and the rights derived from shares (the shareholders right to participate in the shareholders meetings, to vote and to distribute dividends and assets upon liquidation). The rights on shares are always rights in personam, regulated by law of obligations. When we talk about in rem remedies available for bona-fide purchaser of shares we only refer to the rights on shares. The documentary medium formalizes and makes as of the characteristics and essential features of a share precise and accessible. That is why the rights on shares circulate, similar to things, that have their useful attributes, so to say, «laid out.» The property rights certified by non-documentary shares have an even higher degree of reliability and clarity of essence than the things which characteristics only reveal when being utilized. In this sense they are quite different from the rights in personam, which substance is not visible for third persons. The public authenticity of non-documentary shares is even greater than that of a documentary security, as information about the former is accessible simultaneously to a wider circle of persons. Another feature distinguishing non-documentary shares from the rights in personam is that they do not get terminated or cease to exist in the event of the death or liquidation of the shareholder/lender, but rather remain unchanged to certify the scope of legal faculties of the heirs or the purchaser through their being realized as part of the liquidation assets. In this sense, the non-documentary shares are closer to things. That is why the in rem remedies should be available for their bona-fide purchaser as well. Addressing the importance of soundness of commercial circulation of non- documentary shares, the RF High Arbitration Court ruled in 1999 that the bona- fide purchaser concept should also be applicable to non-documentary securities as well. Commentators, however, did not readily and fully support the above decision

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RF High Arbitration Court: «Article 128 of the RF Civil Code considers the securities as things, and under Article 149 of the RF Civil Code securities, including shares, could be issued in non-documentary form, but even latter this case they are not excluded from the objects of the rights in rem.»2 Thus, it is suggested that non-documentary securities should be referred as things, which, as the hearing of the above civil cases has demonstrated, leads to many misunderstandings in practice. Furthermore, Article 149 explicitly addresses «holders» rather than «proprietors» or «owners» of non-documentary securities. Part 2 of this Article stipulates the mandatory registration of «restrictions on the rights.» It is hard to assume the rights arising from shares could be restricted on an individual basis. Hence what we consider here are encumbered rights on non-documentary shares, such as arrest, lien, and etc. These are not explicitly stipulated in the list of the rights in rem, in civil code they must be implied for the list of those rights is open. We are clearly confronted with an issue that should have been resolved by amending the laws on securities without coming into conflict with the concept of Article 149 of the RF Civil Code. In accordance with the opinion of Professor E.A. Sukhanov, the issue of regulating governmental non-documentary securities in Germany, for instance, was solved by «making such rights in personam subject to the legal regime of movable things (regarding primarily procedures of their transfer and protection of bona-fide purchasers) by establishing a juridical fiction». In our opinion, Article 302 of the RF Civil Code could be applied for protection of bona-fide purchasers of non-documentary shares by the following reasons. The rights on shares and those derived from shares, as described above, are the rights of a general character, but there are also others, for instance, the right to receive extracts from the register, the right to transfer shares to a nominee holder, and so on. Firstly, given the nature of securities, all the legal rights exist inseverably, i.e. in their combination (part 1, Article 142 of the RF Civil Code). Secondly, the rights on shares are primary (they are the first to be acquired, while the rights from shares follow them). All said rights on non-documentary shares rights from non-documentary shares are in the nature of the right in personam, and they cannot be an object of in rem remedies. But the right to obtain a certain number of shares in documentary form, accordance to the register data i.e., the right to acquire certain things in the future - is precisely of an in rem nature since the shareholder may require any third person to refrain from actions violating this right. This is not the shareholders right in personam addressed to the issuer regarding the delivery of a certain number of shares, the ownership right which first goes to him and then is transferred to the shareholder, but rather it is the right in rem on a future documentary security, which become an object of ownership right as soon as such a movable asset appears in documentary form. According to provisional (not-limited) list of rights in rem 2 T.S Shapkina, Bulletin of RF Higher Arbitral Court. 1999 No. 5, on 91.

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(part 1, Article 216 of the RF Civil Code), the right to a future movable asset under Article 305 of the RF Civil Code may be accompanied by a legitimate objection from the bona-fide purchaser. The right to a future documentary share is one of the rights of the shareholder, when his or her company has issued non-documentary securities. The remedies against the claims of previous shareholder (who had lost his possession of shares as a result of illegal action) are available through application of Article 302 of the RF Civil Code, which considers the bona-fide purchaser as the legitimate holder of the right to future documentary shares according to the register data and also of all the other related rights, i.e., as the owner of the entire set of interrelated rights in personam as certified by the non-documentary security. Ordinary registered shares, which useful attributes are the so-called rights derived from shares transferred through an assignment of rights (Article 146 of the RF Civil Code) and cannot enjoy the protection based on in rem remedies. What is protected is the right to the share derived from the right to own the documentary medium of the share. We believe that this analogy justifies the application of the bona-fide purchaser concept to non-documentary shares as to non-material objects.

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MY STUDIES IN HARVARD UNIVERSITY

Dmitry Melnik* Making a Choice «Mitch was their man » Thats how the book began. The first two or three pages were rather dull: someone was looking through somebodys files, personal data, studies in a law school were described. And I had a long second-year students night before me. I had to summarize a couple of foreign constitutions, learn a multitude of new hieroglyphs and memorize an excerpt from «Headway». So, John Grishams «The Firm» had all chances to stay unread, if it were not part of our homework. The third and fourth pages were dedicated to salaries of Harvard law school graduates seecking employment in law firms. I began to read more attentively. By the morning, no more than twenty or thirty pages were left. I had devoured the book and, at the next English lesson, asked the teacher how one can enter Harvard University. After three years of studies at the Department of International Relations, I entered fifth year the International Law Department. The question «What next?» was already looming large at that time. I had already done my summer internship in the Russian Foreign Ministrys Legal Department and even worked there part-time during my third year. I was lucky to get in the Legal Department, which handles all the paperwork of the Foreign Ministry. Yakov A. Ostrovsky, the then First Deputy Director of the Foreign Ministrys Legal Department and lecturer at my institutes International Law Department at that time, helped me in everything and advised to continue my studies. When working with him and other specialists in the area, I understood the importance of the legal qualification level and knowledge of foreign legal systems. It was my desire to become an international-class professional that was the first reason behind my entering a foreign law school. This desire became stronger when I encountered many new legal problems during my work at John Tiner & Partners, a law firm I joined after leaving the Foreign Ministry. There I met with many graduates of the Yale, Harvard and Cambridge law schools, which reputation became another incentive for continuing studies for me. Of course, your knowledge is what matters most, but the indication of a first-class, world-known educational institution in a resume should not be underestimated either. So, my desire to learn something new about taxation, which was my specialty in the law firm, and the desire to «associate» myself with an elite foreign university forced me to once again take the matriculants thorny road.

* D. Melnik LLM, Moscow State Institute of International Relations; LLM/ITP (International Tax Program), Harvard Law School.

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Entering The matriculation process consists of a number of phases, including examinations, submission of documents (references and copies of diplomata) and writing an essay. Simultaneously, the matriculant may begin looking for sources of funds to finance his education. Various schools booklets describe the entire process in detail. So, I will make only several remarks based on my own experience. Examinations will hardly be a problem for a MGIMO student. Even an average MGIMO student can pass the TOEFL test successfully. But paying for the exam is a problem. It was practically impossible to transfer $53 abroad an exam charge in 1996. Todays matriculates will have no such problem. It can be resolved in any bank. However, one shouldnt postpone the payment for the last minute. Necessary details of the registration requirements and TOEFL exams can be found in the Internet at www.toefl.org. Learning manuals are available in specialized bookstores or can be ordered through the Internet at Amazon.com. In addition, one can test ones preparedness for the TOEFL exam at the American Cultural Centre at the Library of Foreign Literature in Moscow. The second exam was called the Law School Admission Test. It must be taken only by the enrolees for the three-year Juries Doctor (JD) course and is not obligatory for those targeting at the masters course. However, I decided to take it and never regretted because good test results can only help those who plan to continue legal education in the United States seriously. The mechanism for the enrolment for the test is similar to that for the enrolment for the TOEFL test. Details can be found in the Internet at www.lsat.org. References (recommendations) are important sources of information about the candidate. As a rule, they are much more important than application questionnaires. I asked references from my teachers and colleagues in the Legal department. As a result, the universities received references from prominent professors of law, who held various posts in international law organizations. For instance, Professor Anatoly L. Kolodkin, who recommended me to Harvard and Cambridge Universities, was the chairman of the International Law Association and member of the International Tribunal for the Sea Law. Since recommendations are usually given by very busy people, I advise to discuss universities requirements to such recommendations with them. First, the recommendation must specify the duration of a candidates relations with the professor or law practitioner involved. This will make it possible for admission offices to determine how sound and well-founded the opinion about candidate for entry is. This requirement will also prompt a candidate to choose a recommendation and references provider that knows him best and can assess his abilities and potential needed to get a diploma in law from a prestigious university. Second, the reference must not only list facts and events, but also contain a summary and assessment of various abilities of a candidate. For instance, if a candidate managed to successfully complete his or her term paper ahead of time, cite various hard-to-reach sources

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and analyse the application of various rules of law in different situations, then the level of a candidates organizational skills, his or her ability to use sources and apply legal knowledge in practice will be an important information for the admission office. Third, since the reference can hardly be an extensive document, one should not try to reflect all personal achievements. Instead, one should give a detailed description of key abilities and some convincing examples of their progressive development. Fourth, it must be taken into account that different references may be required for the enrolment for some joint programs/degrees. In this case, it will be reasonable to get references for both programs. I chose a joint program for a Masters degree in law from the Harvard Law School and an international taxation certificate of the John F. Kennedy School of Government. I submitted all the documents in duplicates, including my essay, except a recommendation from Yakov A. Ostrovsky. By that time, he had already left for his new place of employment at the UN International Tribunal for Rwanda. So, I had to write to him to receive another copy of his references. Thats why one should carefully plan the entire enrolment «logistics» in order to avoid such situations, which can significantly lengthen the document submission. A candidates essay is also an important source of information about various aspects of a candidates preparedness for further studies. First, esseys give an indication of a candidates maturity and his/her preparedness for a legal or any other carrer, since they disclose his/her further goals, aspirations, and priorities. For instance, Harvard University, which prides itself for the fact that its graduates are leading figures in many fields of activity, can assess an entrants leadership potential on the basis of an entrants essay. Second, essays also make it possible for admission departments to assess a specific entrants possible contribution to the universitys life («community contribution»). Harvard University is known for strong competition among students, whose progress is assessed not against the absolute scale, which makes it possible for any student to get the highest marks, but relative to other students progress (the so-called «bell curve»). Some students, especially foreign ones, may even withdraw into themselves, study alone and feel rather lonely because of it. The departments in charge of the LL.M. students make much effort to prevent such developments. Their measures range from organization of «obligatory-attendance» parties to the enrolment of foreign students for introductory courses in the American law. However, it is much easier for them to identify «deep introverts» at the admission phase and prevent them from becoming part of the carefully-selected students family. For this reason, it will be appropriate to pay much attention to the relevant part of the essay. Third, essays show a candidates ability to express his/her thoughts in writing. This is important for many foreign universities that lay stress on writing skills and hold written examinations. Last, writing an essay is an excellent opportunity for a candidate to distinguish himself from other candidates and demonstrate his or her originality. This aspect

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should not be underestimated because an admission offices personnel have to read a huge number of documents and essays. A prominent essay or description of an entrants experience increases an entrants chances for admission. So, equipped with all the above (and many other things), I sent my documents to the university, doing it just in time to meet the final acceptance date. In March, in the midst of the «diploma fever», I received a congratulation letter from the head of the admission office. But I went to Harvard University to pursue my studies a year later because I had to resolve some problems first. Besides, I didnt have enough money at that time. During that year I filed an application for a joint program-international taxation and managed to find funds needed to pay for education (tutition) and to cover other expences. Tis item of expenditure (textbooks, accomodation and meals) must not be underestimated. As for financing education, I arrived to a conclusion that one should not overlook any possibility. Any letter to a trust, sponsor or bank increases chances for getting a scholarship or a loan. The sources of information I used were the Internet and the Library of Foreign Literature. One can find a huge amount of information about specifics that can be asked for financial support there. Studies The beginning was stunning. I was amazed by a number of things. One was the absence of any time for getting in full swing. In late August, professors assign tasks to students that have enrolled for their courses. So, the first lesson of the fall semester is conducted at full capacity. My academic year began on June 29. My summer semester was dedicated to the fundamentals of the American law, accounting, basic tax analysis and economics of taxation. I arrived to Cambridge, Mass., on June 24, moved into the dormitory, got acquainted with other students and immediately received my textbooks and assignments for the first class. Quite naturally, Boston, where I came for the first time in my life, attracted me more than introduction to the American law. So, I spent the time before the beginning of studies there, with my new friends, studying the city and shopping. Later, I had to regret that I had wasted my time on choosing a bicycle instead of studying the American Constitution. In the class I felt uneasy and my cheeks turned red, when I tried to recollect what the Commerce Clause of the American Constitution (Article I, Section 8.3) was about. I was especially upset when I learned during that lesson that this clause, which restricts the states rights to regulate inter-state economic relations and vests this right in the US Congress, was present in the Russian

1 Resolution of the Constitutional Court of the Russian Federation No. 5-P, «On the Examination of the Constitutionality of Paragraph 2 of Item 2 of Article 18 and Article 20 of the Law of the Russian Federation On the Basics of the Tax System in the Russian Federation of December 27, 1991" of March 21, 1997: « it is inadmissible to impose taxes that upset uniformity of the economic space of the Russian Federation it is inadmissible to impose regional taxes that can directly or indirectly restrict free movement of goods, services and capital within the common economic space and regional taxes that make it possible to form budgets of some territories at the expense of tax revenues of other territories or transfer tax payments on taxpayers in other regions ».

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legislation practically in the same form1 and had helped me very much at the time, when I worked in the law firm, helping clients plan their operations in various Russian regions. Second, there are no lectures as such. Each class is conducted as a seminar. Quizzes and case study examinations are followed by explanations of legal details of legislation and their application and pass on into discussions of new subjects. Moreover, emphasis is always put on the analysis of each situation from different viewpoints (for instance, those of a taxpayer sued and the Internal Revenue Service). As a rule, one and the same student must provide both arguments and counter- arguments of the parties, as if the seminar were held to get prepared for real court hearings. Here is one example: At a lesson dedicated to international taxation, Professor David Rosenbloom, a top Harvard law school graduate (he graduated top in his class, but without any special honours, as far as I remember), and currently partner at Caplin & Drysdale, a Washington-based law firm, asked students to analyse a legal case in which a prominent scientist asserted his stand in a dispute with the Internal Revenue Service. Professor Paul Karrer, a 1937 Nobel Prize winner (synthetic vitamin structure), was the head of the Zurich Institute of Chemistry. His research in the field of the B-2 vitamin synthesis seemed very promising (indeed, they won him recognition and a Nobel Prize later). Thats why F. Hoffmann-LaRoche & Co., Ltd., a Basle- based company, offered him to finance his research in exchange for the right to use his product, know-how, formulal and patents. The agreement concluded in 1934 also provided for the scientists right to receive part of the revenues from the sale of his product during 12 years. Having discovered the structure of the B-2 vitamin, Mr. Karrer began to study vitamin E, which was envisaged in another similar agreement. F. Hoffmann-LaRoche & Co., Ltd. forbade Mr. Karrers contacts with other scientists, while all his publications had to be approved by the company. In accordance with the Swiss legislation, all the agreements between Mr. Karrer and F. Hoffmann-LaRoche & Co., Ltd. were special-form labour contracts according to which Mr. Karrer provided compensable services to the company with the right to use his discoveries and know-how. In 1941, the Swiss company signed an agreement with Hoffmann-LaRoche, Inc. (USA), according to which the American company received the right to use the patent registered in the United States in the name of Mr. Karrer and undertook to pay him a percentage of the vitamin sales revenues envisaged in the initial agreement. The payments to the scientist were indicated as royalties to be paid. The US Internal Revenue Code of 1939 envisaged that all fixed and regular payments (interest, dividends, lease payments and fees) made by American residents to non-residents not conducting operations on the US territory were taxable, while taxes had to be withheld by the relevant payer - fiscal agent.2

2 Article 211(a)(1)(A).

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When the company withheld taxes, Mr. Karrer sued the government. (Karrer v. United States).3 The total amount of the taxes paid in 1941 through 1946 was $201,504.88 a sizable sum at the time. Mr. Karrers position was that though the American company reported all payments to him as royalties paid, those payments were actually remuneration for services provided. Second, since Mr. Karrer provided those services to a Swiss company outside the United States, they were not to be taxable in the United States. Did Mr. Karrer have any contractual relations with the American company? No, but payments from the United States were justified because the American company bought rights for the use of Mr. Karrers discoveries and had to pay for it. So, the question was about the actual nature of those payments and the location of the source of Mr. Karrers income. The Code distinguished between the two types of payments - royalties and service fee - according to sources of income: (1) royalties for the use of rights and patents were defined as those with a source in the United States (Article 119(a)(4)) (2) payments to American residents for services provided outside the United States were defined as those with no sources in the United States (Article 119 (c)) Accordingly, the Internal Revenue Service insisted that the above payments were actually royalties, i.d. payments for the use of rights and patents registered in the United States, and had to be taxable. After a thorough analysis of evidence and legal provisions, the court decided that, since Mr. Karrer had no contractual relations with the American company and provided vitamin synthesis development services to a Swiss company outside the United States, the payments he received from the United States could not be subject to the American taxes. The American government refunded the overpaid taxes together with interest (accrued as of 1957). Was the court decision a correct one? The position and major arguments of Mr. Karrer are understandable. What could be the «crushing argument» of the tax authorities? It could be pointing to the fact that the remuneration depended on the companys profits. Such dependence is more typical for royalties than for remuneration for the services provided. Especially in view of the fact that there were no contracts between Mr. Karrer and the American firm. In this way the teacher prepares his students for work on both sides of the «front line» and formulation of an opponents position in order to be able to support ones own position better. Later, the analysis of this case turned into a discussion of legislative and judicial practice trends and court decisions made in similar cases. For instance, in a more recent case payments to a German musician, which were defined in the contract as royalties, were recognized by the court as payments for services, which, unlike royalties, could not be relieved from the American income tax in accordance with an agreement on the avoidance of double taxation.4 Naturally, an analysis of the case by all the students follows the announcement of the courts decision by the teacher. What were the differences between the contracts with the 3 Karrer v. United States, 152 F.Supp. 66 (Ct.Cl.1957). 4 Pierre Boulez v. Commissioner, 83 T.C. 584 (1984).

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German musician and agreements with of the Swiss scientist? How did the international treaties between the countries of residence and work of these two men change? What were the differences between the nature of work for these participants in the well-known legal cases? By the end of the seminar, students clearly understand that one and the same payment or source of income can be described from different viewpoints and can lead to exactly different tax consequences. They also can draw conclusions for the future, specifically, reconcile taxpayer rights defence logic with a counsels argumentation used in the above cases under present-day conditions. For instance, electronic commerce problems depend directly on the legal classification of payments, property, locations, etc. Can, for example, rights for the use of digitazed information be recognized as property rights subject to royalty payments on the basis of the Karrer case logic? Most probably, they can. Can the provision of such information be regarded as the provision of downloading services to PC users? Probably, it can. On and the same product of civilization can be presented differently. Hence, different tax consequences. To understand it is essential for any tax lawyer. Last, the diversity of subjects taught at the law and other schools was a complete surprise. In addition to obligatory subjects, both JD - and LLM- degree seekers can choose from a significant number of subjects, including those taught in other schools, such as the Harvard Business School. Beginning from the fall semester (I had four semesters in all, including the summer, fall, winter and spring semesters), I attended two obligatory courses, Tax Administration and Value Added Tax, and prepared an obligatory written work on tax aspects of various financial instruments. As for the written work, when preparing it I once got in a rather comical situation. Having discussed the work in general with our professor and scientific advisor, we decided to make a comparative tax analysis of various financial instruments. Instruments called ZEBRAS were mentioned during the discussion. I wrote down the name but forgot to ask immediately what it actually meant. I tried to find the word in the Lexis-Nexus and Bloomberg information systems, but with little result. However, I learned much about African animals of the same name, problems of the American zoos and even about a virus somehow brought into the Great Lakes. But I know that it means hybrid financial instruments called «zero-coupon based rate adjusted securities» used to pay shareholder dividends (which are not deductible from the companys taxable base) disguised as interest payments (which are deductible). One of the first companies to have issued such instruments was the Walt Disneys company. The whole plan was very much appreciated by investors and other market participants.5 As for non-obligatory subjects, students can choose from a multitude of them. The list of the obligatory courses for each category of students can be found at the Harvard Law Schools Internet site (www.harvard.law.edu). In addition, Harvard Universitys site (www.harvard.edu) contains hyperlinks to all the school sites. 5 See: Tom Pratt, Disney Plans Hybrid Zeros with Play on TV Business. The Investment Dealers Digest: IDD, New York, October 21, 1991.

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So, students can chose subjects taught in other schools. For instance, I choose a number of courses taught in the Law School and the School of Government. They included the following: Federal Taxation of Income (basic course), Corporate Taxation (advanced course, mostly dedicated to tax aspects of corporate reorganizations), International Taxation (tax aspects of relations between persons within different tax jurisdictions), Corporate Finance (legal aspects of relations between company shareholders, creditors, managers and directors) and International Finance (fundamentals of international capital markets). Of course, one can tell much more about education abroad in general and in Harvard University in particular. Those who need more details or have questions about the Harvard law school can send me an e-mail to: [email protected]. It should be pointed out that my way to Harvard University began in the Moscow State Institute of International Relations (MGIMO). I am grateful to all MGIMO teachers and officials who supported and still support me. No matter how difficult the entry process and financial problems may be, everything is achievable for those who have received MGIMOs training. A friend of mine, who was a MGIMO graduate and who advised me to enter this institute (which seemed unrealistic to me at the time), wished me good luck and instructed me with the words: «There is no royal road to learning». Now I can repeat his words to everyone wishing to enter a foreign law school.

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THE SHANGHAI CONVENTION ON COMBATING TERRORISM, SEPARATISM AND EXTRIMISM

(Unofficial translation) The Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tadzhikistan and the Republic of Uzbekistan (herein the Parties), guided by the objectives and principles of the UN Charter, first of all, concerning the maintenance of international peace and security, development of friendly relations and cooperation between states; realizing that terrorism, separatism and extremism represent a threat to international peace and security, development of friendly relations between states, and also implementation of the basic rights and freedoms of man; recognizing that the above phenomena seriously threaten territorial integrity and security of the Parties, and also their political, economic and social stability; guided by the Alma-Aty joint statement of 3 July 1998, the Bishkek Declaration of 25 August 1999, The Dushanbe Declaration of 5 July 2000 and the Declaration on the creation of the Shanghai Cooperation Organization (SCO) of 15 June 2001; being firmly convinced that terrorism, separatism and extremism, as they are defined in this Convention, irrespective of their motives, cannot be justified under any circumstances, and persons guilty of committing such deeds, must be held responsible in conformity with the law; being convinced that the joint efforts of the Parties within the framework of the present Convention are an effective form of struggle with terrorism, separatism and extremism, have agreed on the following: Article 1 1. For purposes of this Convention the terms used in it mean: 1) terrorism: a) any deed recognized as crime in one of the treaties listed in the Attachment to the present Convention (herein Attachment), and as it is defined in this treaty; b) any other deed aimed at causing death of any civil person or of any other person not taking active part in hostilities in the situation of an armed conflict, or cause to him serious bodily injury, and also to cause considerable material damage to any material object, as well as organization, the planning of such a deed, assistance in its commitment, incitement to it, when the purpose of such deed due

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to its character or context consists in that that to intimidate the population, to breach public security or force the organs of power or an international organization to commit any action or abstain from its commitment, and persecuted in criminal procedure in accordance with the national legislation of the Parties; 2) separatism any deed aimed at breach of the territorial integrity of a state, including at separation of a part of its territory or disintegration of the state committed by violence, as well as the planning and preparation of such deed, assistance in its commitment, incitement to it, and persecuted in criminal procedure in accordance with the national legislation of the Parties; 3) extremism any deed aimed at a violent seizure of power or violent holding of power, and also at violent change of the constitutional order of the state, as well as violent encroachment on public security, including organization for the above purposes of illegal armed formations or participation in them, and persecuted in criminal procedure in accordance with the national legislation of the Parties. 2. The present article shall not inflict damage to any international treaty or any national legislation of the Parties, which contain or may contain a provision on a broader application of the terms used in this article. Article 2 1. The Parties in conformity with the present Convention, other international obligations, and also taking into consideration their national legislation carry out cooperation in the field of prevention, detection and elimination of the deeds indicated in item 1 of article 1 of the present Convention. 2. In the relations between them the Parties consider the deeds, indicated in item 1 of article 1 of the present Convention as crimes entailing extradition. 3. In the course of realization of the present Convention in the issues connected with extradition and rendering legal assistance on criminal cases, the Parties carry out cooperation in accordance with international treaties, in which they participate, and taking into account the national legislation of the Parties. Article 3 The Parties take such measures which may be necessary, including relevant cases in the field of national legislation, to ensure that the deeds indicated in item 1 of article 1 of the present Convention, were not subject under any circumstances to acquittal on consideration of exclusively political, philosophic, ideological, racial, ethnic, religious Or any other character and entailed punishment in accordance with their seriousness. Article 4 1. Within 60 days after the notification of the depository about the fulfillment of the intrastate procedures necessary for the coming into force of the present

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Convention. The Party provides the depository through diplomatic channels in writing a list of its central competent organs responsible for the fulfillment of the present Convention, which the depository dispatches to the other Parties. 2. The central competent organs of the Parties on issues connected with the fulfillment of the provisions this Convention contact and interact between themselves directly. 3. In case of making amendments in the list of central competent organs of any Party it notifies the depository about this, which sends this information to the other Parties. Article 5 Upon mutual consent the Parties may hold consultations, exchange opinions, coordinate their positions on the issues of combating the deeds indicated in item 1 of Article 1 of the present Convention, including at international organizations and international forums. Article 6 The central competent organs of the Parties in accordance with the present Convention carry out cooperation and render assistance to each other by way of: 1) exchange of information; 2) execution of inquiries on carrying out operational search actions; 3) development and adoption of coordinated measures for prevention, detection and forestalling of the deeds indicated in item 1 of Article 1 of the present Convention and reciprocal notification on the results of their implementation; 4) adoption of measures for prevention, detection and forestallment on the territory of their state of the deeds indicated in item 1 of Article 1 of this Convention, aimed against the other Parties; 5) adoption of measures for prevention, detection and forestallment of financing, supplies of arms and ammunition, rendering other assistance to any person and/or organizations for the commitment of deeds indicated in item 1 of Article 1 of this Convention; 6) adoption o f measures for prevention, detection, forestallment and banning the activity for training of persons to commit deeds indicated in item 1 of Article 1 of this Convention; 7) exchange of normative legal acts and materials on the practice of their application; 8) exchange of experience of work for prevention, detection and forestallment of the deeds indicated in item 1 of Article 1 of this Convention; 9) training, retraining and raising skills of their specialists in different forms; 10) achievement upon mutual consent of the Parties of understandings on other forms of cooperation, including, if need be, rendering of practical assistance on forestalling the deeds indicated in item 1 of Article 1 of this Convention, and liquidation of their consequences. Such understandings are formalized by relevant protocols, which constitute an integral part of the present Convention.

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Article 7 The central competent organs of the Parties exchange information of mutual interest, in particular, on: 1) imminent and accomplished deeds indicated in item 1 of Article 1 of this Convention, detected, and also forestalled attempts of their commitment; 2) preparation to commit deeds indicated in item 1 of Article 1 of this Convention, in regard to Heads of State and other statesmen, employees of diplomatic representations, consular offices and international organizations, other persons, enjoying international protection, and also participants of state visits, international and state political, sporting and other events; 3) organizations, groups and individuals preparing and/or committing deeds indicated in item 1 of Article 1 of this Convention, and also otherwise participating in these deeds, including their goals, tasks, ties and other data; 4) illegal manufacture, acquisition, storage, transfer, movement, sale and use of potent toxic, poisonous, explosive substances, radioactive materials, arms, explosive devices, fire arms, ammunition, nuclear, chemical, biological and other types of mass destruction weapons, materials and equipment, which can be used in the process of its creation, to commit deeds indicated in item 1 of Article 1 of this Convention; 5) detected or implicit sources of financing the deeds indicated in item 1 of Article 1 of this Convention; 6) forms, methods and means of commitment of deeds indicated in item1 of Article 1 of this Convention; Article 8 1. The interaction between the central competent organs of the Parties within the framework of this Convention is carried out in bilateral and multi-lateral formats on the basis of the inquiry to render assistance, and also by way of informing on the initiative of the central competent organ of one of the Parties. 2. An inquiry or information are sent in writing. In urgent cases an inquiry or information can be sent orally, but no later than in 72 hours they must be confirmed in writing, if need be, with the use of technical means of transmission of the text. In case of a rise of doubts in he genuineness of inquiry or information or their content it is possible to request an additional confirmation or explanation of the indicated documents. 3. The inquiry must contain: a) name of the inquirer and the inquired of the central competent organs; b) goals and substantiation of the inquiry; c) description of the content of the inquired assistance; d) other information, which can be useful for a timely and due use of the inquiry; e) indication of the degree of its secrecy, if this is needed. 4. The inquiry or information sent in writing are signed by the manager of the

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inquiring central competent organ or his deputies or certified by an official seal of that central competent organ. 5. The inquiry and the documents accompanying it, and also information are sent by the central competent organ in one of the working languages indicated in Article 15 of this Convention. Article 9 1. The inquired central competent organ takes all the necessary measures to ensure a rapid and possibly more complete execution of the inquiry and in possibly short time limits informs on the results of its consideration. 2. The inquiring central competent organ is immediately notified about the circumstances hampering the execution of the inquiry or essentially delaying its execution. 3. If the execution of the inquiry is outside the competence of the inquired central competent organ, it transfers the inquiry to another central competent organ of its state, which is competent to execute it, and immediately notifies about that the inquiring central competent organ. 4. The inquired central competent organ may request additional information necessary, in its opinion, for the execution of the inquiry. 5. The legislation of the inquired Party is applied in the execution of the inquiry. Upon request of the inquiring central competent organ the legislation of the inquiring Party may be applied, if this does not contradict the basic principles of the legislation or international obligations of the inquired Party. 6. The execution of the inquiry can be postponed or its may be refused completely or partially, if the inquired central competent organ believes that its execution can inflict damage to sovereignty, security, public order or other essential interests of its state or contradicts the legislation or international obligations of the inquired Party. 7. The execution of the inquiry may be denied, if the deed, in connection with which it was received, is not a crime under the legislation of the inquired Party. 8. If in accordance with items 6 or 7 of the present article a refusal is made fully or partially in the execution of the inquiry or its execution is postponed, the inquiring central competent organ is notified in writing. Article 10 The Parties will conclude a separate agreement and adopt other necessary documents with a view to create and provide for the functioning of a regional anti- terrorist structure of the Parties located in Bishkek for an effective fight with the deeds indicated in item 1 of Article 1 of the present Convention. Article 11 1. In view of realization of this Convention the central competent organs of the Parties may set up a line of urgent communication and hold scheduled or extraordinary meetings.

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2. For purpose of the implementation of the provisions of this Convention the Parties can if need be provide technical and material assistance to each other. 3. Materials, special means, equipment and materiel received by one Party on the basis of this Convention from the other Party, without preliminary written consent of the Party that supplied them shall not be subject to transfer. 4. The data shall not be subject to disclosure on the methods of holding operational search measures, characteristics of special forces and means, material supplies used by the central competent organs of the Parties for rendering assistance within the framework of this Convention. Article 12 The central competent organs of the Parties may conclude agreements between them, regulating in greater detail the order of execution of this Convention. Article 13 1. Each Party provides for the confidentiality of the information and document received, if they are of secret nature or the transferring Party considers their disclosure undesirable. The degree of secrecy of information and documents shall be determined by the transferring Party. 2. The information or the results of the execution of the inquiry received on the basis of this Convention, without a written consent of the Party that granted them cannot be used for other purposes than those for which they were requested or e granted.. 3. The information and documents received by one Party on the basis of this Convention from the other Party, without the preliminary consent that granted them, are not subject to transfer. Article 14 The Parties independently bear the costs connected with the execution by them of this Convention, if not otherwise agreed.

Article 15 The Russian and Chinese languages are the working languages during the implementation of cooperation by the central competent organs within the framework of this Convention.

Article 16 The present Convention does not limit the rights of the rights of the Parties to conclude other international agreements on the issues which are the subject of this Convention and which do not contradict its goals and object, and also do not concern the rights and obligations of the Parties, stemming from other international agreements, whose participants they are.

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Article 17 Disputable issues arising during interpretation or application of this Convention shall be resolved by way of consultations and negotiations between the Parties concerned. Article 18 1. The Chinese Peoples Republic shall be the depository of this Convention. The official copies of the present Convention are sent out by the depository to other Parties within 15 days after its signature. 2. The present Convention comes into force on the 30th day after receipt by the depository of the last of the notices in writing from the Republic of Kazakhstan, the Chinese Peoples Republic, the Kyrgyz Republic, the Russian Federation, the Republic of Tadzhikistan and the Republic of Uzbekistan on the fulfillment by them of the intrastate procedures necessary for the coming of this Convention into force. Article 19 1. Other states may join it after the coming of the present Convention into force with the consent of all Parties to it. 2. For a joined state this Convention comes into force on the 30th day after receipt by the depository of the notice on the fulfillment by it of the intrastate procedures necessary for the coming of the present Convention into force. From that date the joined states become a Party to the present Convention. Article 20 1. Amendments and additions may be made in the text of this Convention upon consent of all Parties, which are formalized by Protocols, being an integral part of the present Convention. 2. Any Party may leave this Convention by sending a written notification about this to the depository 12 months in advance of the would-be date of departure. The depository notifies other Parties about this intention within 30 days from the moment of receipt of the notification about the departure. Article 21 1. At moment of handing over the notice to the depository on the fulfillment of the intrastate procedure necessary for the coming of the present Convention into force, the Party, not participating in one of the treaties listed in the Attachment may declare that in applying this Convention to this Party it is believed that this treaty is not included in the Attachment. Such statement becomes invalid after the notification of the depository about the coming of this treaty into force for this Party. 2. When the Party ceases to be a participant of one of the treaties listed in the Attachment, it makes a statement, as this is envisaged by item 1 of the present article.

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3. The Attachment can be extended by the treaties which comply with the following conditions: 1) open for participation to all states; 2) have come into force; 3) were ratified, adopted, approved or which were joined by at least three Parties of the present Convention. 4. After the coming of the present Convention into force any Party may propose an amendment to the Attachment. The proposal on making the above amendment to the Attachment shall be submitted to the depository in writing. The depository notifies the remaining Parties about all proposals answering the requirements of item 3 of the present Article and requests their opinions whether the proposed amendment should be accepted. 5. The proposed amendment is considered to be accepted and comes into force for all Parties in 180 days after the circulation by the depository of the proposal about this amendment, save the cases, when one third of the Parties to the present Convention object to it, by notifying the depository about this in writing. Done at Shanghai on 15 June 2001 in one original copy in the Chinese and Russian languages, both texts being equally authentic.

(Signatures)

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Note to the document: The Treaty comes into force in accordance with Article 70. Information on ratification: Tadzhikistan the ratification instrument was deposited on 21.06.1999; Kazakhstan the ratification instrument was deposited on 16.08.1999; Belarus ratified the Treaty (Law No. 303-3 of the Republic of Belarus of 09.11.1999); Russia ratified the Treaty (Federal Law No. 55-FZ).

THE TREATY ON A CUSTOMS UNION AND A UNIFIED ECONOMIC AREA*

(Moscow, 26 February 1999) The participating states in the present Treaty, hereinafter referred to as the Parties; guided by the Treaty between Belarus, the Republic of Kazakhstan, the Kyrgyz Republic and the Russian Federation on Deepening Integration in the Economic and Humanitarian Fields of 29 March 1996, hereinafter referred to as the Treaty of 29 March 1996, the earlier concluded agreements for its realization, and also taking account of the decisions adopted by the organs of integration management; complying with the agreements signed between the Parties on free trade, on the common order of regulation of the external economic activity, on a Customs Union, on ensuring mutual convertibility and stabilization of the exchange rates of the national currencies, on the prevention of double taxation and evasion of paying taxes on income and capital;

* The Treaty On a Customs Union and a Unified Economic Area was signed by the Presidents of the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic and the Russian Federation at the meeting of the Interstate Council on 26 February 1999 in Moscow. Later Tadzhikistan joined this treaty. The treaty was ratified by all the participating states and came into force on 23 December 1999. The main goal of this document is the formation of a Customs Union and creation of a Unified economic area. It determines the main goals and principles of formation of the Unified Economic Area, it contains the program of actions of the participating states to terminate the creation of the Customs Unions of five states. The treaty simplifies to the maximum the procedures of customs control on the internal borders, envisages coordination of joint actions of the consequences of the financial and economic cooperation and the overcoming of the aftermaths of the financial and economic crisis. It lays down the foundations of the common customs tariff, the single principles of application of protective measures in trade, levy of indirect taxes. Measures are defined to strengthen interaction of the national currency and financial systems. The parties agree on the formation of the unified market of services, labour market and social policies. The beginning was made of the formation of the common legal area, they formulated the directions of rapprochement and harmonization of national legislation.

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proceeding from the existing production and scientific and technological ties, interdependence and inter-complementarity of economies; determined to impart a new impulse to the development of closer integration, rapprochement of the economies of the participating states in view of social progress and improvement of well-being of the peoples; recognizing that elimination of the existing barriers and restrictions will call for coordinated actions, harmonious development of market relations of states and creation of equal conditions and opportunities to economic subjects; confirming friendly relations, binding states and peoples, wishing to ensure their prosperity, proceeding from the principles of the Charter of the United Nations Organization, the Charter of the Commonwealth of Independent States, the Agreement On the Creation of the Economic Union of 24 September 1993, the norms and principles of international law; taking into consideration the desire of the Parties to become members of the World Trade Organization; respecting sovereignty, territorial integrity of states and guaranteeing non- interference in internal affairs; expressing determination to complete the formation of a Customs Union and create a Unified Economic Area, agreed on the following: CHAPTER I. NOTIONS AND TERMS Article 1 For purposes of the present Treaty the notions and terms given below shall have the following meaning: the unified economic area is an area, consisting of the territories of the Parties, on which the same mechanisms function for the regulation of economy, based on the market principles and use of harmonized legal norms, the unified infrastructure and a coordinated tax, money and credit, currency and financial, trade and customs policy is carried out, ensuring free movement of goods, services, capital and labour; the unified customs territory a territory, consisting of the customs territories of the Parties, applicable to which the Parties have established a common customs tariff, the same measures of non-tariff settlement are applied, the common customs rules are in operation, ensuring the unified management of customs services and cancellation of the customs control on the internal customs border; the common (internal) market a totality of economic relations on the unified customs territory; the common customs tariff the agreed list of single rates of import customs duties applied to goods imported into the customs territories of the participating states in the Customs Union from third countries, systematized in accordance with the Single goods nomenclature of foreign economic activities of the Commonwealth of Independen6t States;

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the internal customs border the limits of the customs territory of each of the Parties, being at the same time the limits of the customs territory of the other Party; the external customs border (external perimeter) the limits of the unified customs territory of the participating states of the Customs Union, separating the territories of these states and the territories of the states, which do not belong to the Customs Union; the indirect taxes a tax on the added value and excise taxes on goods and services. CHAPTER II. GENERAL PROVISIONS Article 2 In conformity with the conditions of the present Treaty the Parties assume a commitment upon themselves to complete the formation of a Customs Union and create a Unified Economic Area on its basis. Article 3 The main goals of the formation of a Unified Economic Area are as follows: effective functioning of the common (internal) market of goods, services, capital and labour; creation of conditions for a stable development of the structural remaking of the economy of the Parties in the interests of raising the living standards of their population; implementation of coordinated tax, money and credit, currency and financial, trade, customs and tariff policy; development of the unified transportation, energy and information systems; creation of a common system of measures of state support to the development of priority branches of economy, production and scientific-technological cooperation. Article 4 The most important principles of formation of a Unified Economic Area are: the principle of non-discrimination, the principle of mutual benefit; general (universal) principles: mutual assistance, voluntariness, equal rights, responsibility for the assumed commitments, openness. Article 5 The formation of a Customs Union and of a Unified Economic Area are ensured by the following organs of management of integration: the Interstate Council, the Council of the Heads of Government, the Inter-Parliamentary Committee. Each organ of integration management acts within the framework of the powers defined by the Provision on this organ.

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Following a decision of the Interstate Council other organs of integration management can be set up. Article 6 The participating states agree upon the economic policy to form a Customs Union and a Unified Economic Area in accordance with the provisions of the Treaty of 29 March 1996 concluded between the Parties by agreements and adopted decisions for its implementation. The Parties undertake to refrain from any actions, which might pose a threat to the achievement of the goals of the present Treaty. Article 7 The Unified Economic Area shall be formed stage by stage. The length of the stages, the totality of measures in each of the stages and their implementation shall be determined by the Interstate Council. The transition from stage to stage shall be conditioned by the actual achievement of specific goals of the present Treaty and fulfilment by the Parties of the commitments assumed under it. The first stage is aimed at the completion of the formation of a Customs Union and of a unified customs territory. The second stage envisages the creation of a Unified Economic Area, including the formation of a common (internal) market of goods, services, capital and labor, the implementation of a common economic policy and creation of a unified infrastructure, completion of harmonization of legislation of the Parties, ensuring the functioning of the Unified Economic Area. In the following stages of economic cooperation the Parties shall strive toward coordination of parameters of the main macro-economic indices. CHAPTER III. COMPLETION OF FORMATION OF THE CUSTOMS UNION Section 1 REGIME OF FREE TRADE IN GOODS Article 8 The Parties in their mutual trade ensure realization in full measure of the regime of free trade without withdrawals and restrictions on the basis of the bilateral and multilateral agreements on free trade existing between the Parties. Article 9 The Parties proclaim the following goals of the functioning of the regime of free trade in goods: non-application of tariff and quantitative restrictions in regard to goods, originating from the customs territory of one of the Parties and exported (imported) into the customs territory of the other Party, and destined for free circulation on the customs territory of the Parties;

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use of the common system of levying indirect taxes; nothing shall impede one of the Parties to temporarily employ protective measures in regard to the import of goods from the other Party in accordance with the generally accepted international norms and rules or national legislation; not to grant without the consent of the Parties to any third state, which is not a participant of the present Treaty, a more favourable trade regime than the Parties reciprocally grant to each other; elimination of restrictions of competition caused by the behaviour of the economic subjects or caused by the interference of state and territorial organs to the extent to which this may influence the mutual trade of the economic subjects of the Parties; reciprocal non-use by the Parties of any measures (also including collective measures) of a limiting or fiscal nature, which directly or indirectly can result in the discrimination in regard to the commodity, originating from the territory of one of the Parties, as compared with similar goods, originating from the customs territory of the other Party. Article 10 The Parties undertake the necessary efforts for the elimination on their territories of the administrative, fiscal barriers, of a local or regional nature and impeding the normal functioning of the regime of free trade in goods. For purposes of this article of the present Treaty nothing shall obstruct the Parties to apply national legislation, concerning entry, stay, work, establishment of firms, companies, implementation of services to physical and legal persons. In this case they apply the regime in such a way in order not to annul or to restrict the advantages received by either Party under the present Treaty. Section 2. REGULATION OF FOREIGN TRADE IN GOODS Article 11 The Parties establish a common order of regulation of foreign trade activities within the framework of their commitments under the agreements on the Customs Union and through harmonization of the norms and rules envisaged by the bilateral agreements on the common order of regulation of foreign economic activities, effective between the Parties on the date of the coming into force of the present Treaty. Article 12 The common order of regulation of foreign trade activities and adoption of coordinated decisions on its synchronous change and addition comprises the following areas: tariff regulation of foreign trade activities; non-tariff measures of regulation in the trade with third countries; establishment of a trade regime in relations with third countries;

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indirect taxation of foreign trading operations with third countries; currency regulation of foreign trading operations. Article 13 The Parties in developing Decision No.2 of the Council of the Heads of Government of 22 January 1998 On Common Tariff of the Participating States of the Agreements on a Customs Union shall conclude the relevant accords. The Parties shall adopt a coordinated system of tariff benefits and tariff preferences in trade with third countries, including the common order of making changes and addenda in it. The Parties have reached understanding that the order of levying and receipt of customs duties, taxes and charges, having an equivalent action, shall be determined by separate agreements. During preparation of the above accords the Parties shall take into account the adopted decisions and subsequent understandings, which will be reached by the Parties on this issue on a bilateral or multilateral basis. Article 14 The Parties shall abide by the common order of applying measures of non- tariff regulation in trade with third countries and for these purposes they will be applying in full measure the Agreement on Common Measures of regulation in the formation of the Customs Union of 22 October 1977. The single order of regulation of foreign trading activity does not comprise the trade of the Parties in armaments, military hardware, and other products for military purposes, nuclear materials, equipment, special non-nuclear materials and relevant technologies, and also goods and technologies of double purpose indicated in Article 5 of the Agreement on common measures of non-tariff regulation in forming a Customs Union. The Parties will conclude a separate agreement for these purposes. Article 15 As regards trade in goods with third countries the Parties undertake coordinated actions for a step-by-step establishment of a single trading regime. Changes of the trading regime in regard to third countries, introduction or lifting of temporary restrictions, will be made by the Parties, as a rule, simultaneously. For these purposes the Parties shall sign relevant Protocols. In trade with the countries, with which one of the Parties has an agreement on free trade regime, this Party shall coordinate with the other Parties of the present Treaty the lists of withdrawals and restrictions from the regime of free trade or the forms of compensation, stemming from the existing divergence of the trade regimes. Independent talks on joining the World Trade Organization, the process of their integration into international economic and financial structures must not be an insurmountable obstacle in their desire to ensure a step-by-step harmonization of trade regimes.

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In view of achievement of the necessary level of coordination of the negotiating positions the Parties shall effectively make use of the mechanism of regular consultations envisaged by the Protocol on international trade talks of the participating state in the Customs Union when entering the World Trade Organization of 3 June 1997 and Decision M27 of the Interstate Council of 28 April 1998. Article 16 The Parties shall apply a single system of levying indirect taxes in trade with third countries. The rates of indirect taxes on exported and imported goods shall not exceed similar rates, which are levied on goods of national production. In trade with third countries the Parties go over to levying indirect taxes, proceeding from the principle of the country of destination. In importing and exporting goods in trade with third countries the Parties shall abstain from granting individual tax benefits in the part concerning rates and the order of levying the value added tax and excises duties on excisable goods. Any of the Parties is entitled to demand information regarding the application of rates and the mechanism of imposition of taxes, affordable tax benefits for residents and non-residents carrying out trade operations with goods from third countries, from the other Party and receive it within thirty calendar days. Article 17 The Parties apply a coordinated order of currency regulation in foreign trading operations based on monitoring the existing legislation in the participating states in a given area, on regular exchange of information between central (national) banks, including the information on the current and capital operations of the balance of payment. In the future the Parties will work out a separate agreement on the use of a common system of currency supervision. Article 18 The Parties confirm that a single order of regulation of foreign trade activity will be established along with the unification of legislation taking account of the current and long term foreign trade, economic interests and potentials of the Parties. All changes and addenda into the single order of regulation of foreign trade activity in the area indicated in Article 12 of the present Treaty, shall be made following coordination of the Parties at the phase of draft decisions of the governments of the Parties. The Parties shall be entitled to introduce individual restrictions in trade with third countries in accordance with the generally accepted international norms and rules. Such measures are of a temporary nature and will be applied in conformity with procedures established by the Parties.

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Article 19 The Parties shall consider the application of the single order of regulation of foreign trade activity as the most important and necessary condition for the establishment on a mutual basis of the regime of free trade without withdrawals and restrictions. The departure of one of the Parties from the regime of free trade of regulation of foreign trade activity, envisaged by Articles 11-18 of the present Treaty, may be considered by a Party or Parties as pretext for raising the issue of discontinuing the regime of free trade without withdrawals and restrictions in regard to this Party. Section 3 CUSTOMS UNION Article 20 The Parties confirm that their desire to ensure the completion of formation of a Customs Union is based on the functioning of the regime of free trade, a step-by- step establishment of a single order of regulation of foreign trade activity and compliance with obligations, stemming from the principles and provisions of the Agreements on a Customs Union. Article 21 On accordance with the generally accepted norms and rules the Parties shall create a Customs Union as a trade and economic association, having: a unified customs territory; a common customs tariff; a regime not allowing any tariff and non-tariff restrictions (licensing, quotas setting) in reciprocal trade, save the cases envisaged by the present Treaty; simplification and subsequent repeal of customs control on internal customs borders; same type mechanisms of regulation of economy and trade based on the universal market principles of economic activity and harmonized economic legislation; organs of management; a single customs policy and application of the same customs regimes. The Integration Committee shall be the executive organ during the stage of formation of a Customs Union. Article 22 Following the fulfilment of the conditions stipulated in Article 21, goods imported from third countries to the unified customs territory and released for free movement in one of the participating states shall not be restricted for movement across the internal customs borders. The Parties shall unify the norms and rules of customs clearance and control in regard to goods, originating from third countries, and will sign relevant

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documents on simplification and subsequent repeal of customs clearance and control on the internal customs borders. During customs clearance of goods moved by physical persons across the internal borders of the Customs Union, the Parties shall be guided by the Protocol on the simplified order of customs clearance of 22 January 1998 and in the future shall lift customs clearance and control for good on the internal customs borders. For these purposes the Parties shall sign relevant documents. Article 23 The Parties shall determine by additional covenants the time frameworks of completing the formation of a Customs Union taking account of the generally accepted norms and rules. During the establishment of trade regimes with third countries the Parties shall grant each other a preferential regime by way of withdrawal from the regime of the most favoured treatment in favour of the Parties, forming the Customs Union. Article 24 The Parties will take care of the unification of the customs territories of the Parries into a single customs territory upon completion of creation for this of the necessary legal, economic and international conditions. For these purposes the Parties have agreed to conclude a treaty on completing the creation of Customs Union, a regulating mechanism of the functioning of a single customs territory.

CHAPTER IV. CREATION OF A UNIFIED ECONOMIC AREA Section 4 COMMON ECONOMIC POLICY AND DEVELOPMENT OF INFRASTRUCTURE Article 25 The Parties coordinate the main directions and phases of structural rebuilding of economy of the participating states, providing for an effective use of their production potential, formation of a favourable investment climate, support of highly effective productions, implementation of a coordinated anti-monopoly, tax and financial policy, and also creation of conditions for fair competition within the framework of a Unified economic area. Article 26 The Parties shall create the necessary conditions for a stable economic development of the states-participants in the present Treaty, they carry out a coordinated state support of their priority branches and productions, effective conversion and reforming of their defence complex enterprises.

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Article 27 Various forms of subsidies (aid) given by a participating state in the form of a grant or at the expense of state resources, which violate or threaten to violate competition by way of creating more favourable conditions to certain enterprises or production of separate types of goods, shall be considered as incompatible with the principles of a Common economic area to the extent in which they concern trade between the Parties, except the following cases: assistance of a social nature rendered to individual consumers on condition that is granted without discrimination; assistance, having the purpose of repairing damages caused by natural calamities and some other extraordinary occurrences of a natural or technogenic nature; subsidies aimed at contributing to the socio-economic development of the regions, where the standard of living in a relevant state is below the living wage determined by each Party, or where low employment is observed; subsidies aimed at promoting the implementation of a project of state significance or called on to improve a serious violation in the economy of a participating state; other types of subsidies (aid) which can be determined by a decision of the Interstate Council. Article 28 The Parties shall apply a single system of indirect taxation in their reciprocal trade according to the principle of the country of destination, and for this purpose they will conclude a relevant agreement. The rates of indirect taxes on imported goods in reciprocal trade must not exceed the tax rates, which are imposed on the goods of internal production. Article 29 In view of pursuing a coordinated excise policy the Parties shall abide by the basic list of excisable goods manufactured and imported on the customs territory of the participating states. Article 30 The Parties in view of collecting taxes in full, and also for the exchange of information between the tax organs of the participating states of the present Treaty will realize the provisions of the Agreement on cooperation and mutual assistance on the issue of observance of tax legislation of the Parties of 25 March 1998 and Decision No.4 of the Council of the Heads of Government of 22 January 1998 based on the principles of interaction tax services of the states participants in the Treaty of 29 March 1996. Article 31 The state regulation of the economies of the Parties is geared toward implementation of institutional transformations, effective management of property, regulation of relations of the spheres of economy with the banking sector, creation

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of new mechanisms of attraction of financial means, normalization of inter-state settlements. Article 32 The Parties will contribute to the creation of effective mutually assisted productions taking account of the economic interests of the states. Article 33 The Parties shall take measures toward inadmissibility of abusing their dominating position by one or several economic subjects in order to prevent: use of methods of unfair competition; restriction of production, markets or technical development to the detriment of consumers; application of unequal conditions in regard to equal value deals with other trade partners, thus creating unfavourable conditions of competition for them. In case of detection of damping practices, the losing Party has the right to take adequate measures of protection, which are determined by the national legislation, upon coordination with the Parties. Article 34 The Parties will create a Transport Union in accordance with the Agreement between the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic and the Russian Federation on the formation of a Transport Union of 22 January1998. The Parties define the Transport Union as an integrated system of transport complexes of the Parties, functioning on the basis of mutually agreed technologies and parameters and a unified normative and legal base. The creation of a Transport Union will be carried out step-by-step, by gradually deepening integration processes and it presupposes realization of measures to ensure legal, economic and organizational conditions for a an obstacle free movement of transport means, implementation of carrying passengers and cargoes between the Parties and transit of goods across their territories. The formation of a Transport Union of the participating states will be completed during the second phase. Article 35 The Parties shall carry out transit in accordance with the Agreement on the single conditions of transit across the territories of the participating states in Customs Union of 22 January 1998. Article 36 The participating states will carry out a coordinated agrarian policy, implement joint financial programs and projects, providing for the development of production of agricultural produce and raw materials in accordance with the list agreed upon by the Parties. In the course of carrying out common agricultural policy, the Parties shall take into consideration:

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the need to ensure food security of the participating states of the Treaty; special nature of agricultural activity, conditioned by the production and social structure of agricultural economy, as we as the natural resources of the Parties; the need for improvement of the structure of agricultural production. Section 5 COMMON MARKET OF SERVICES Article 37 The participating states shall strive to grant to each other on a mutual basis the national regime of access to the market of services. The Parties gradually eliminate the existing restrictions of access to their national markets of services within the framework of a Common economic area for legal and physical persons of the states participants of the present Treaty. For these purposes the Parties shall adopt a common program of developing trade in services within the framework of a Common economic area, during whose preparation they will abide by the generally accepted international norms and rules. Article 38 The Parties shall pursue in regard to third countries a coordinated policy of trade in services. During the establishment of the regime of trade in services with third countries, the Parties will grant to each other a preferential regime of way of withdrawal from the regime of the most favoured treatment in favour of the countries, forming the Customs Union. Section 6 COMMON LABOR MARKET AND SOCIAL POLICY Article 39 The Parties shall ensure a free movement of citizens of the participating states inside a Common economic area. The free movement presupposes abolition of discrimination in regard to citizens of the Parties and creation of a unified legal regime in the part of employment, remuneration, other conditions of work and employment. This presupposes the possibility to: - freely move, going in for labour activity on the territory of the Parties; - simplify to the maximum the procedures of adoption and departure from citizenship; - grant to citizens, permanently residing on the territory of any of the Parties, a legal status, approaching to the maximum the status of citizens of the country of residence; - freely cross the borders and stay on the territory of the Parties with the passport of a citizen of one of them; - establish single norms for the carriage of foreign currency and duty free luggage across the border of the participating states;

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- apply national regimes in regard to citizens of the participating states when crossing their borders; - stay in one of the participating states, going in for labour activity in accordance with legislation regulating employment of citizens of this states; - remain on the territory of one of the participating states, following the end of labour activity in this state. For these purposes the Parties shall sign relevant agreements. Article 40 The Parties have reached agreement that the length of work service of citizens employed in labour activity on the territory of the participating states will be included into the overall length of work service, including the calculation of pensions and allowances. Article 41 Each of the Parties shall assume obligations not to introduce without consultations with other Parties additional restrictions on the right of choice of the place of residence and implementation of economic activity on their territory for citizens of other participating states from the day of signature of the present treaty. The Parties shall step-by-step abolish restrictions on the right of choice of the place of residence and implementation of economic activity, including the right of creation of legal entities by the citizens of the participating states on each others territories. Article 42 The Parties shall continue a single visa policy in regard to third countries, including in view of prevention of uncontrolled migration. For these purposes the Parties shall conclude relevant agreements. Article 43 Each of the Parties shall provide to citizens of other Parties free urgent medical aid during their stay on the territories of these states. For this purpose the Parties shall conclude relevant agreements. Article 44 The Integration Committee together with the governments of the Parties shall study and examine problems concerning social sphere, and following the results it will submit its conclusions and recommendations to the Council of the heads of government on the following issues: - employment; - professional training and raising qualifications; - development of minimum standards of social protection; - prevention of accidents in production and occupational diseases; labour hygiene; rights to creation of professional associations and conclusion of collective bargaining treaties.

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Article 45 The Parties shall ensure the creation of a coordinated system of education, raising skills, training and retraining of cadres, single rule and conditions for entering general educational and professional schools, higher educational institutions, post- graduate studies, and also mutual recognition and adequacy of documents on education, scientific degrees and title.

Section 7 MOVEMENT OF CAPITAL Article 46 The Parties, realizing agreements on mutual convertibility of national currencies, will continue consistent liberalization of currency policy in the part of lifting restriction for using currency of other states for current operations, introduction of a single rate of exchange of the national currency for current operation of the balance of payments, access of non-resident banks to the internal currency markets, lifting restrictions on import and export of national currency by the authorized banks and join Article 8 of the Charter of the International Monetary Fund. In view of realization of measures to ensure interaction of national currency and finance systems and to complete these measures the Parties shall sign relevant protocols. Article 47 The Parties shall realize the provisions on the elimination of double taxation and prevention of evasion from payment of taxes on income and capital. Article 48 The Parties will agree upon the mechanism of establishment of the currency rates of exchange of their national currencies. Article 49 The Parties shall form a payment system of the participating states for serving settlements on goods turnover in the interstate and entrepreneur spheres, non- trade operations, services of transport, communications and other branches, and also on state, banking and commercial credits, currency exchange operations. Article 50 Each Party is entitled to adopt protective measures in the field of capital movement with immediate notification of other participants in the Treaty, if the existing movement of capital causes violations in the functioning of the internal market of capital. Article 51 The Parties shall strive to enhance the degree of liberalization of capital movement along with the improvement of economic situation of the participating states.

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The Parties shall not introduce new restriction in addition to the existing ones in the field of currency operations, which would hamper capital movement and current payments connected with it, and also not increase restrictions in the existing rules. The possibility of a temporary non-use of the provisions of this Article shall be regulated by separate agreements. Section 8 SCIENTIFIC-TECHNOLOGICAL AND INFORMATION DEVELOPMENT Article 52 The Parties shall carry out a coordinated scientific-technological policy. For these purposes they shall adopt a joint program on priority directions of realization of national scientific studies, technological developments and experimental production facilities in view of integration and further development of scientific- technological potentials of the participating states. Article 53 The joint program shall be implemented through the concrete programs developed on the main directions of activity. Each program determines methods of its realization, fixing deadlines and envisaging sources of financing. The coordination of scientific-technical work and fulfilment of joint programs shall be carried out at the national level together with the Integration Committee. Article 54 The financing of scientific studies of fundamental and applied nature implemented on interstate programs and projects shall be carried out on the basis of interstate order and commercial terms, as well as at the expense of joint funding. The parties shall create a single system of scientific-technical, economic and legal information and relevant data banks. Article 55 The Parties shall provide for freedom of exchange and circulation of radio and TV programs, other mass media on the territory of the Parties, access of legal and physical entities to the systems of telecommunications taking into account the national interests of the Parties, expansion of exchange of information with third countries and shall conclude relevant agreements.

CHAPTER V. RAPPROCHEMENT AND UNIFICATION OF LEGISLATION Article 56 The Parties adopt coordinated measures for the rapprochement and unification of legislative and other legal acts of the Parties (herein referred to as measures on

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harmonization of legislation), which exert direct influence on the fulfilment by the Parties of the provisions of the present Treaty. For purposes of rapprochement and unification of legislation the Parties will take measures, including: coordination of activity for preparation of draft legislative and other legal acts, including projects of legal acts on making amendments in laws and other acts; conclusion of international treaties; adoption of model acts; adoption of relevant decisions by the Interstate Council or by the Council of the Heads of Government; other measures, which the Parties will deem it purposeful and possible on condition of approval of such measures by the Interstate Council. Article 57 The Interstate Council shall adopt decision to the effect what legislative and other legal acts of the Parties, taking into account the object and purposes of the present Treaty, are subject to rapprochement and unification, it will establish the sequence of implementation of relevant measures for harmonization of legislation. Such decisions can envisage the adoption of measures on harmonization of legislation both in regard to specific acts, valid on the territories of the Parties, and in regard to certain areas of legal regulation. The Interstate Council will also decide the issue what measures on harmonization of legislation should be taken in regard to relevant legislative and others legal acts of the Parties either taking into account decisions made by the Interstate Council or a relevant area of legal regulation. Article 58 In cases when according to the general opinion of the Parties this is necessary and justified, the Interstate Council is entitled to make: decisions establishing single rules for the participating states in the present Treaty, which are obligatory in all their parts and are subject to direct application by the participating states; resolution, being mandatory for the participating state or participating states, to whom they are addressed, in that that this concerns the expected result, given the preservation by the organs of the Parties of the freedom of choice of forms and methods of actions; recommendations which are not compulsory. Article 59 The decisions envisaged in Article 57 and 58 of the present Treaty, shall be adopted by the Interstate Council on basis of proposals of the Integration Committee submitted after consultations with the Inter-Parliamentary Committee and approved by the Council of the Heads of Government.

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The proposals on the adoption of measures on harmonization of legislation submitted by the Inter-Parliamentary Committee are subject to preliminary consideration by the Integration Committee, which after consultations with the Inter-Parliamentary Committee puts forward relevant recommendations to the Council of the Heads of Government. This provision does not restrict the right of the Inter-Parliamentary Committee to adopt model acts, of a recommendation nature, as this is envisaged in Article 22 of the Treaty of 29 March 1996. The proposals on the adoption of measures on harmonization of legislation must be based on an unbiased and all-round estimate of the situation in the relevant area of legal regulation in the context of relations between the participating states and problems, arising in this connection for the implementation of the aims and principles of the present Treaty. Article 60 The powers of the Interstate Council granted to it on the basis of Article 57 and items b and c of the present Treaty may be delegated to the Council of the Heads of Government, on condition of adoption of relevant decision by the Interstate Council. CHAPTER VI. FINAL PROVISIONS Article 61 In case of action or threat of action on the part of third countries, capable of inflicting economic damages to one or several participating states of the Treaty, the governments following a proposal of one or several Parties will immediately start consultations for elaboration of coordinated measures for the prevention of economic damages or threat of inflicting such damages. Article 62 The present Treaty concerns the obligations of the Parties on their earlier concluded international treaties with third states, including within the framework of the Commonwealth of Independent States. Article 63 The present Treaty is open for adherence to it of any new state, recognizing its principles and stating its readiness to assume in full measure the obligations stemming from the present Treaty, and that sent a relevant request to the Interstate Council via a depository. The conditions of adherence to the Treaty of a third state shall be determined by a relevant decision of the Interstate Council. Article 64 The Parties can submit proposals to the Interstate Council on making changes and additions to the present Treaty. The Interstate Council unanimously makes decisions on amendments and addenda to the present Treaty, which will come into force following their ratification by all participating states.

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Article 65 The present Treaty shall be subject to registration at the UN Secretariat. Article 66 The Parties decide disputable issues, arising during the execution of obligations of the Parties, interpretation and application of the provisions of the present Treaty, by way of holding consultations, negotiations and other method about which they reach understanding. The Parties shall conclude an agreement on the responsibility of the Parties for non-compliance of the adopted obligations, stemming from the present Treaty. Article 67 The location of the organs of management of integration shall be established by the Interstate Council. The organs of management will function on the territory of the participating states in accordance with separate agreement on the conditions of stay. Article 68 The Integration Committee shall be the depository of the present Treaty. Article 69 Each Party may depart from the present Treaty, by notifying the depository in writing about this no later than 12 months before the date of departure. Article 70 The present Treaty is subject to ratification and comes into force, for the states, which ratified it, from the date of receipt by the depository for safe keeping the ratification instrument from the third participating state. For each of the remaining participating states of the Treaty it comes into force from the date of receipt of the ratification instrument for safe keeping by the depository. For the Republic of Tadzhikistan the present Treaty comes into force after receipt by the depository of the instrument on ratification by the Republic of Tadzhikistan of the present Treaty and completion of legal registration of its adherence to the Treaty on a Customs Union of 6 and 20 January 1995. Done at Moscow on 26 February 1999 in one copy in the Belorussian, Kazakh, Kyrgyz, Russian and Tadjik languages, both texts having equal force. In case of arising differences of the Parties on the text of the present Treaty the Parties shall make use of the text in the Russian language. The original copy of the Treaty shall be kept at the Integration Committee, which sends its certified copy to each state that signed the present Treaty. (Signatures)

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THE RUSSIAN FEDERATION THE FEDERAL LAW ON THE RATIFICATION OF THE TREATY ON A CUSTOMS UNIION AND A UNIFIED ECONOMIC AREA

Adopted by the State Duma On 16 May 2001 Approved by the Council of Federation On 16 May 2001

To ratify the Treaty On a Customs Union and a Unified Economic Area signed in the city of Moscow on 26 February 1999, with the following reservation to articles 16 and 18; The Russian Federation in its mutual trade with the participating states of the Treaty on a Customs Union and a Unified Economic Area, except the Republic of Belarus, and other participating states of the Commonwealth of Independent States, goes over from 1 July 2001, if a different deadline is not stipulated by the international treaties of the Russian Federation on the order of levying indirect taxes according to the principle of the country of destination, with the exception of the levying of taxes in the realization of oil, including stable gas condensate, and natural gas.

V. Putin President of the RF

Moscow, the Kremlin, 22 May 2001 No. 55-FZ (Federal Law)

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THE TREATY ON THE INSTITUTION OF THE EURASIAN ECONOMIC COMMUNITY*

(Astana, 10 October 2000) The Republic of Belorussia, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation and the Republic of Tadzhikistan, hereinafter referred to as the Contracting Parties, moved by the desire to ensure their dynamic development by coordinating and implementing the socio-economic transformations with the effective use of economic potentials to enhance the standard of living of their peoples; determined to enhance the effectiveness of interaction in the development of the process of integration between them and deepen mutual cooperation in various fields; realizing the need for coordination of approaches in integration into the world economy and international trading system; expressing readiness in full measure to comply with the commitments assumed by them in accordance with the Agreement on the Customs Union between the * The Treaty On the Institution of the Eurasian Economic Community was signed on 10 October 2000 in Astana by the Presidents of Belorussia, Kazakhstan, Kyrgyzia, Russia and Tadzhikistan. The treaty was ratified by all the participating states and came into force on 30 May this year. The main goal of this document is creation of a new international organization the Eurasian Economic Community. The treaty establishes the goals of the organization that is being created, it determines its structure: - the Interstate Council is the supreme organ of the Community, it considers the principal issues, determines strategy, directions and prospects of development of the integration, meets at the level of the heads of state no less than once a year and at the level of the heads of government no less than twice a year; - the Integration Committee a permanently acting organ, consisting of the vice-premiers, carries out a whole number of the key functions determined by the treaty; - current work of the organization is ensured by the Permanent representatives of the parties at the Community; - the Inter-parliamentary Assembly is the organ of the parliamentary cooperation and examines the issues of harmonization (rapprochement, unification) of national legislation of the Contracting Parties and bringing it into conformity with the treaties concluded within the framework of the EurAsEC. The Court of the Community is called on to ensure a uniform application of the treaties concluded within the framework of the EurAsEC and adopted decisions. The treaty introduces a principally new system of distribution of votes during the adoption of decisions at the Integration Committee and formation of the budget of the Community, taking account of the economic weight of the participants. The number of votes and the size of the shared contributions into the budget are distributed in the following manner: the Russian Federation 40%, the Kyrgyz Republic and the Republic of Tadzhikistan each 10%. The place of location of the Integration Committee has been determined Moscow and Alma-Ata. The Treaty envisages the possibility for states and international organizations to take part in the work of the Community in capacity of observers.

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Russian Federation and the Republic of Belarus of 6 January 1995, the Agreement on the Customs Union of 20 January 1995, the Agreement on Deepening Integration in the economic and humanitarian spheres of 29 March 1996 and the Treaty on the Customs Union and the Unified Economic Area of 26 February 1999; reaffirming their adherence to the principles of the Charter of the United Nations Organization, and also to the generally accepted norms of international law, have agreed as follows: Article 1 Institution of an International Organization The Contracting Parties do hereby institute the international organization The Eurasian Economic Community (herein the EurAsEC or the Community). The EurAsEC possesses the powers, voluntarily transferred to it by the Contracting Parties in conformity with the provisions of the present Treaty. The Contracting Parties remain sovereign and equal subjects of international law. Article 2 Goals and Tasks The EurAsEC is being set up for an effective advancement of the process of formation of a Customs Union and Unified economic area by the Contracting Parties, and also realization of other goals and tasks, determined in the above Agreements on the Customs Union, the Treaty on Deepening Integration in the economic and humanitarian spheres and the Treaty on a Customs Union and Unified Economic Area, in conformity with the stages outlined in the above documents. The earlier treaties concluded by the Contracting Parties between themselves, and also the decisions of the organs of integration management continue to be effective in the part, which is not contrary to the present Treaty. Article 3 Organs Ensuring the succession of the organs of integration management created earlier by the Contracting Parties, for the fulfilment of the goals and tasks of the present Treaty, acting within the framework of the EurAsEC are: - The Interstate Council (the Mezhgossovet); - The Integration Committee; - The Inter-Parliamentary Assembly (IPA); - The Court of the Community. The decision on the cessation of activity of the organs of integration management instituted by the Treaty on Deepening Integration In the Economic and Humanitarian Spheres of 29 March 1996 and the Treaty on a Customs Union and Unified Economic Area of 26 February 1999, is made by the Mezhgossovet.

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Article 4 Chairmanship The chairmanship at the Interstate Council and Integration Committee shall be carried out by turns in the order of the Russian alphabet by each member state of the Community during one year. The order of chairmanship in other organs of the Community shall be determined by the relevant provisions. Article 5 The Interstate Council The Interstate Council is the supreme organ of the EurAsEC. It consists of the heads of state and heads of government of the Contracting Parties. The Mezhgossovet examines the principal issues of the Community connected with the common interests of the participating states, determines strategy, directions and prospects of development of integration and makes decisions aimed at the realization of the goals and tasks of the EurAsEC. The Interstate Council issues instructions to the Integration Committee, sends requests and recommendations to the Inter-Parliamentary Assembly, requests to the Court of the Community. The Mezhgossovet by its decisions may set up auxiliary organs of the Community. The Mezhgossovet meets at the level of the heads of state no less than once a year and at the level of the heads of government no less than twice a year. The meetings are held under the chairmanship of the representative of the Contracting Party which presides at the Mezhgossovet. The functions and the order of work of the Mezhgossovet shall be determined by the Provision, which is approved by the Mezhgossovet at the level of the heads of state - participants in the EurAsEC. Article 6 The Integration Committee The Integration Committee is a permanently acting organ of the EurAsEC. The main tasks of the Integration Committee are: insurance of interaction of the EurAsEC organs; preparation of proposals for the agenda of the meetings of the Mezhgossovet and the level of their holding, and also draft decisions and documents; preparation of proposals for the formation of the EurAsEC budget and control over its execution; control over the implementation of the decisions adopted by the Mezhgossovet. To fulfil its tasks the Integration Committee:

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makes decisions within the limits of its powers determined by the present Treaty, and also delegated to it by the Interstate Council; submits annually to the Mezhgossovet a report on the state of things in the Community and the progress of realization of its goals and tasks, a report on its activity, and also on the execution of the EurAsEC budget; examines measures aimed at the achievement of the Community goals, including conclusion of the relevant treaties and the pursuance by the Contracting Parties of the common policy on specific issues, and prepares adequate propositions; has the right to address recommendations to the Mezhgossovet, recommendations and requests to the Inter-Parliamentary Assembly and governments of the Contracting Parties, requests to the Court of the Community. 2. The composition of the Integration Committee comprises deputy heads of government of the Contracting Parties. The chairman of the Integration Committee participates in the sessions of the Mezhgossovet. The meetings of the Integration Committee are held no less than once in three months. In the period between the meetings of the Integration Committee the current work of the Community is ensured by the Commission of Permanent Representatives (the Postpredy) of the Contracting Parties at the EurAsEC appointed by the heads of the participating states. 3. The organization of work and information and technical provision of the Interstate Council and the Integration Committee are imposed on the Secretariat of the Integration Committee (the Secretariat). The Secretariat is headed by the Secretary General, who is appointed by the Interstate Council following the proposal of the Integration Committee for a period of three years. The Secretary General is the highest administrative official of the Community, participates in the sessions of the Interstate Council and the Integration Committee. The Secretariat is formed from among the citizens of the participating states on a quota basis taking account of the shared contributions of the contracting Parties into the budget of the Community and persons hired by contract. In the execution of the service duties the Secretary General and the personnel of the Secretariat must not request or receive instructions from anyone of the Contracting Party or authority, outside the Community. They must refrain from any actions, which might tell on their position as international officials who are only responsible before the EurAsEC. The Contracting Parties undertake to respect the international nature of the duties of the Secretary General and the personnel of the Secretariat and shall not try to exert influence on them in the execution of their service duties by them. The functions and the order of work of the Integration Committee shall be determined by the Provision approved by the Interstate Council.

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Article 7 The Inter-Parliamentary Assembly The Inter-Parliamentary Assembly is an organ of inter-parliamentary cooperation within the framework of the EurAsEC, considering the issues of harmonization (rapprochement, unification) of national legislation of the Contracting Parties and bringing it in conformity with the treaties concluded within the framework of the EurAsEC in view of the implementation of the Community tasks. The Inter-Parliamentary Assembly is formed from members of parliaments delegated by the parliaments of the Contracting Parties The Inter-parliamentary Assembly within the limits of its powers: works out the Foundations of legislation in the basic spheres of legal relations subject to the consideration by the Mezhgossovet; adopts typical projects on whose basis the national legislation acts are developed; may address recommendations to the Mezhgossovet, requests and recommendations to the Integration Committee and parliaments of the Contracting Parties, requests to he Court of the Community. The provision on the Inter-Parliamentary Assembly shall be approved by the Interstate Committee. Article 8 The Court of the Community The Court of the Community ensures the uniform application by the Contracting Parties of the present Treaty and other valid treaties within the framework of the Community and decisions made by the organs of the EurAsEC. The Court of the Community also examines disputes of economic nature arising between the Contracting Parties on the issues of realization of the decisions of the EurAsEC organs and provisions of the treaties valid within the framework of the Community, gives explanations, and also conclusions on them. The Court of the Community is formed from the representatives of the Contracting Parties composed of no more than two representatives from each Contracting Party. The judges shall be appointed by the Inter-Parliamentary Assembly following the proposition of the Interstate Council for a period of six years. The organization and the order of activity of the Court of the Community shall be determined by its Status approved by the Mezhgossovet.

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Article 9 Membership The admission to the membership of the EurAsEC is open to all states, which will assume upon themselves commitments, stemming from the present Treaty and other effective treaties within the framework of the Community according to the list determined by a decision of the Interstate Council, and which, in the opinion of the the EurAsEC members, can and intend to comply with these commitments. Any Contracting Party has the right to cancel its membership in the EurAsEC, by preliminarily settling its commitments before the Community and its members and by sending an official notification to the Integration Committee on the withdrawal from the present Treaty no later than twelve months prior to the date of withdrawal. The cessation of membership sets in during the current budget year, if the notification is sent before the adoption of the budget of the Community for the next budget year. If the notification is sent after the adoption of budget for the next year, then the cessation of membership sets in the next budget year. The participation in the work of the EurAsEC organs of the Contracting Party, violating the provisions of the present Treaty and/or of the treaties effective within the framework of the Community, can be suspended by a decision of the Mezhgossovet. If this Contracting Party continues to violate its commitments, the Mezhgossovet may adopt a decision on its expulsion from the Community from the date, which is determined by the Mezhgossovet itself. Article 10 Observers The status of observer at the EurAsEC can be granted to any state or international interstate (intergovernmental) organization in the event of address with a relevant request. Decisions on granting, suspension or annulment of the observer status are made by the Interstate Council. Article 11 Legal Capacity The EurAsEC enjoys legal capacity on the territory of each Contracting Party necessary for the realization of its goals and tasks. The EurAsEC may establish relations with states and international organizations and conclude treaties with them. The EurAsEC enjoys the rights of a legal entity and for the realization of its goals and tasks may, in particular: - conclude treaties; - acquire property and dispose of it; - speak in court; - open accounts and carry out operations with money funds.

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Article 12 Location of organs The city of Astana (the Republic of Kazakhstan) and the city of Moscow (the Russian Federation) shall be the place of location of the Integration Committee. The city of St. Petersburg (the Russian Federation) shall be the place of location of the Inter-Parliamentary Assembly. The city of Minsk (the Republic of Belarus) shall be the place of location of the Court of the Community. Representations of the Integration Committee may be opened following a decision of the Interstate Council in the member states of the Community. Article 13 Order of decision making The Interstate Council makes all decisions by consensus, save decisions on the suspension of membership or on the expulsion from the Community, which are adopted on the principle of consensus minus a vote of the interested Contracting Party. In the Integration Committee decisions are made by a 2/3 majority of votes. In the event if the four Contracting Parties voted in favour of adoption of the decision, but it did not collect the 2/3 majority, then the issue is submitted for the consideration of the Mezhgossovet. The number of votes of each of the Contracting Parties corresponds to its contribution into the budget of the Community and constitutes: the Republic of Belarus 20 votes; the Republic of Kazakhstan 20 votes; the Kyrgysz Republilic 10 votes; the Russian Federation 40 votes; the Republic of Tadzhikistan 10 votes.

Article 14 Execution of decisions Decisions of the EurAsEC organs are executed by the Contracting Parties by way of adoption of the necessary national normative legal acts in conformity with national legislation. Control over the fulfillment of commitments of the Contracting Parties for the implementation of the present treaty, other valid treaties within the framework of the Community and decisions of the EurAsEC organs is carried out by the organs of the Community within the limits of their competence.

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Article 15 Financing The financing of activity of the EurAsEC organs is carried out at the expense of the Community budget. The budget of the Community for each budget year is elaborated by the Integration Committee in coordination with the member states and is approved by the Mezhgossovet. The budget of the Community shall have no deficit. The budget of the Community is formed at the expense of the shared contributions of the Contracting Parties according to the following scale: The Republic of Belarus 20%; The Republic of Kazakhstan 20%; The Kyrgyz Republic 10%; The Russian Federation 40%; The Republic of Tadzhikistan 10%. The budget funds of the Community are directed to: the financing of activity of the EurAsEC organs; the funding of joint measures of the Contracting Parties held within the framework of the Community; other goals, which are not contrary to the provisions of the present Treaty. In the event if the indebtedness of one of the Contracting Parties before the budget of the EurAsEC exceeds the sum equivalent to the annual shared contribution, by a decision of the Interstate Council it can be deprived of the right to vote in the organs of the Community till full liquidation of the indebtedness. The votes, which belonged to it are distributed between the rest of the Contracting Parties proportionately to their contributions into the budget of the Community. Article 16 Privileges and Immunities The Community and its officials enjoy privileges and immunities, which are necessary for the fulfilment of functions and achievement of the goals envisaged by the present Treaty and treaties valid within the framework of the EurAsEC. The volume of privileges and immunities of the Community and its officials, the personnel of the Secretariat and the Representations of the Integration Committee, and also of the Permanent Representatives of the Contracting Parties at the Community shall be determined by separate documents. Article 17 Working language The Russian language is the working language of the EurAsEC.

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Article 18 Time of validity and coming into force The present Treaty has been concluded for an indefinite period of time. The present Treaty is subject to ratification by the Contracting Parties and comes into force from the date of handing over to the depository, which is the Integration Committee, of the last notification on the fulfilment of the internal state procedures, necessary for its coming into force. If need be, the Parties bring their national legislation in conformity with the provisions of the present Treaty. Article 19 Changes and Addenda Changes and addenda can be made in the present Treaty, which are registered by the Contracting Parties in a separate protocol, being an integral part of the present Treaty. Article 20 Registration The present Treaty in accordance with article 102 of the UN Charter is subject to registration at the Secretariat of the United Nations Organization. Done in the city of Astana on 10 October 2000 in one copy in the Belorussian, Kazakh, Kyrgysz, Russian and Tadzhik languages, all texts being equally authentic. In case of arising differences concerning the text of the present Treaty, the Contracting Parties shall make use of the text in the Russian language. The original of the Treaty shall be deposited at the Integration Committee, which will send its certified copy to each Contracting Party.

(Signatures)

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THE RUSSIAN FEDERATION THE FEDERAL LAW ON RATIFRICATION OF THE TREATY ON THE INSTITUTION OF THE EURASIAN ECONOMIC COMMUNITY

Adopted by the State Duma On 16 May 2001. Approved by the Council of the Federation On 16 May 2001

To ratify the Treaty On the Institution of the Eurasian Economic Community signed in the city of Astana on 10 October 2000.

V. Putin President of the RF

Moscow, the Kremlin, on 22 May 2001. No.56-FZ (Federal Law)

2000-2001ENG6.p65 267 29.09.02, 20:22 EDITORIAL COUNCIL President A.V. Torkunov (Moscow)

Members of Editorial Council: A.H. Abashidze (Batumi), N.I. Akuev (Astana), K.Z. Alimov (Tashkent), E.D. Beyshembiev (Bishkek), I.I. Bergholzas (Riga), V.G. Butkevich (Kiev), G.V. Ignatenko (Ekaterinburg), A.L. Kolodkin (Moscow), Y.M. Kolosov (Moscow), V.V. Kocharyan (Yerevan), G.I. Kurdyukov (Kazan), S.A. Malinin (St. Petersburg), L.V. Pavlova (Minsk), A.H. Saidov (Tashkent), M.A. Sarsembaev (Alma-Ata), L.A. Skotnikov (Moscow), A.A. Trebkov (Moscow), M.O. Haitov (Ashkhabad), Y.Y. Shatas (Vilnius), V.N. Yakovlev (Izhevsk)

EDITORIAL BOARD: Editor-in-Chief Y.M. Kolosov

Members of Editorial Board: L.B. Arkhipova, K.A. Bekyashev, Y.E. Karlov, I.I. Kotlyarov, E.S. Krivchikova, V.I. Kuznetsov, E.G. Lyahov, Y.N. Maleev, A.I. Muranov, Y.A. Reshetov, P.V. Savaskov, G.P. Tolstopyatenko, O.N. Khlestov, B.R. Tuzmuhamedov (deputy Editor-in-Chief)

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Moscow State Institute for International Relations (University) of the Ministry for Foreign Affairs of Russia

The International Union of Public Associations of Lawyers The International Union of Lawyers

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The certificate on registration PI No.77-5895 December, 8, 2000

2000-2001ENG6.p65 268 29.09.02, 20:22