12015 Kutafin University Law Review

ISSN 2313-5395

KUTAFIN UNIVERSITY LAW REVIEW

Volume 2 May 2015 Issue 1(3)

CORRUPTION: LEGAL LABYRINTHS IN HEAVENLY HELL

RIGHT TO PRIVATE PROPERTY: CONSTITUTIONAL EVOLUTION

LEGAL RELATIONS ON THE INTERNET

SOCIALIST PRIVATE LAW: OXYMORON OR SPECIAL MODEL?

THE INTERPRETIVE APPROACH TO INTERNATIONAL LAW: A POSITIVIST VIEW

THE BEST OF THE FIFTH INTERNATIONAL LEGAL FORUM IN SAINT Next issue: special edition PETERSBURG

www.kulawr.ru www.kulawr.ru [email protected]

THETHE BBESTEST IDEASIDEAS AREARE ALWAYSALWAYS WWELCOMED!ELCOMED! II BRIEF TABLE OF CONTENTS

Welcome Note ...... 2

LAW EVOLUTION Development of Private (Civil) Law in Central and Eastern Europe after World War II Article by Gábor Hamza (Hungary) ...... 3 Right to Private Property: Constitutional Evolution Article by Veniamin Chirkin (Russia) ...... 32

MODERN LAW AND MODERN TECHNOLOGIES Legal Relations on the Internet Article by Abdudzhabar Abdujalilov (Tajikistan) ...... 68 International Atomic Energy Agency Action Plan on Nuclear Safety: On the Way to Improving International Safety Standards Note by Kirill Kozhevnikov (Russia) ...... 82

STATE AND RELIGION Game of Thrones: The Ongoing Discourse on Religion and State in Israel (the Second Part) Essay by Liana Voloch (Israel) ...... 103

FORUM The Interpretive Approach to International Law: a Positivist View Article by Larissa Zakharova (Russia) ...... 136 A Step for Cooperation or Disintegration? The Independence Referendum as a Page in Anglo-Scottish Story Article review by Baatr Borkaev (Russia) ...... 156

ROLE-PLAY REVIEW The First Kutaﬁ n’s Model United Nations Review by Dmitry Molchanov and Viacheslav Kokurkin (Russia) ...... 162

CONFERENCE REVIEW Traditions and Innovations in the Modern Russian Legal System Review by Elena Cherepakhina (Russia)...... 166

www.kulawr.ru Volume 2 May 2015 Issue 1(3) DETAILED TABLE OF CONTENTS III

Welcome Note ...... 2

LAW EVOLUTION Development of Private (Civil) Law in Central and Eastern Europe after World War II Article by Gábor Hamza (Hungary) ...... 3 I. Introduction ...... 5 II. Socialist Law as a Separate Legal Family ...... 6 A. Introduction ...... 6 B. States with a Strong Romano-Byzantine Legal Tradition ...... 9 C. States with the Roman (Civil) Law Tradition ...... 10 III. Codifi cation of Private/Civil Law in Western Europe and Its Infl uence on Central and Eastern Europe ...... 10 IV. The Process of Codifi cation in Soviet Russia and the Soviet Union ...... 13 V. Characteristics of Private/Civil Law ...... 17 VI. Various Types of Private/Civil Law Codifi cations in Former Socialist Countries ...... 19 VII. Property Rights ...... 22 VIII. Codifi cation of Economic Law...... 23 IX. The Main Characteristics of the Hungarian Civil Code of 1959 ...... 24 X. Economic Contracts ...... 25 XI. Conclusion ...... 26 Bibliography ...... 17 Right to Private Property: Constitutional Evolution Article by Veniamin Chirkin (Russia) ...... 32 I. Introduction ...... 33 II. Features of Civil Law and Constitutional Legal Approach to the Right to Private Property ...... 35 III. Private Property Domination and Restrictions ...... 36 IV. Constitutional Law Idea of Private Property in the Major Legal Systems of the World ...... 38 A. The Evolution of the Private Property Regulations in the Western World ...... 38 B. The Property in the Socialist and Islamic Legal Systems ...... 42 V. Conclusion ...... 43 Bibliography ...... 43

CORRUPTION: LEGAL LABYRINTHS IN HEAVENLY HELL No Safe Haven: DOJ Can and Will Seize Proceeds of Wholly Foreign Corruption Article by Kathleen Hamann & David R. Courchaine (USA) ...... 44 I. Introduction ...... 45 II. Civil Forfeiture Complaint ...... 46 III. Asset Forfeiture Actions in the United States ...... 47 IV. Potential Criminal Action ...... 49 V. Conclusion ...... 50 Bibliography ...... 50

Volume 2 May 2015 Issue 1(3) www.kulawr.ru IV DETAILED TABLE OF CONTENTS

Russian Speciﬁ cs of Combating Corruption Article by Anna Shashkova (Russia) ...... 51 I. Developed Countries’ Experience in Fighting Corruption ...... 53 II. Comparison of the Russian Federation with the Independent State of Papua New Guinea in Terms of Corruption Indexes ...... 55 III. Historical Roots of Corruption in the Russian Federation ...... 57 IV. Development of Anti-Corruption Legislation and the Current Situation in the Russian Federation ...... 60 V. Concluding Remarks...... 65 Bibliography ...... 66

MODERN LAW AND MODERN TECHNOLOGIES Legal Relations on the Internet Article by Abdudzhabar Abdujalilov (Tajikistan) ...... 68 I. Introduction ...... 69 II. The Classical Deﬁ nition of a Legal Person Under Civil Law ...... 70 III. The Legal Status of a Party to Legal Relations on the Internet ...... 72 A. Introduction ...... 72 B. Presumptions ...... 74 С. Conventional Basis ...... 77 IV. Legal Persons are Parties to Legal Relations on the Internet ...... 78 Bibliography ...... 80 International Atomic Energy Agency Action Plan on Nuclear Safety: On the Way to Improving International Safety Standards Note by Kirill Kozhevnikov (Russia) ...... 82 I. Introduction ...... 83 II. Fukushima Daiichi as ‘Wake Up Call’ for Nuclear Industry ...... 84 III. The IAEA Action Plan on Nuclear Safety: What We Should Do After ...... 86 IV. Nuclear Safety as General Term of International Legal Instruments .....89 V. Post-Fukushima Reports: Lessons Learnt ...... 93 VI. International Safety Standards: On the Way to Improving International Legal Framework in Nuclear Law ...... 97 VII. Concluding Remarks...... 100 Bibliography ...... 101

STATE AND RELIGION Game of Thrones: The Ongoing Discourse on Religion and State in Israel (the Second Part) Essay by Liana Voloch (Israel) ...... 103 III. The Unique Model of the Status Quo ...... 104 A. The Exemption of ‘Yeshiva’ Students from Mandatory Military Service ...... 107 B. Marital Law in Israel ...... 110 С. The Shabbat ...... 115 D. The Kashrut...... 117 E. The Religious Education System ...... 118

www.kulawr.ru Volume 2 May 2015 Issue 1(3) DETAILED TABLE OF CONTENTS V

IV. As Israel Develops: Additional Status Quo Disputes ...... 121 A. Status Quo and the Feminist Angle ...... 121 B. Euthanasia in Israel ...... 127 V. Euthanasia, Religion and State: Israel and Italy ...... 127 VI. Conclusion ...... 131 Bibliography ...... 132

FORUM The Interpretive Approach to International Law: a Positivist View Article by Larissa Zakharova (Russia) ...... 136 I. Dworkin’s Interpretive Theory of Law and Its Positivist Critique ...... 137 II. General Rules of Interpretation ...... 143 III. Evolutionary Interpretation in International Law: Two Applications of the Theory ...... 145 IV. Conclusion ...... 153 Bibliography ...... 154 A Step for Cooperation or Disintegration? The Independence Referendum as a Page in Anglo-Scottish Story Article review by Baatr Borkaev (Russia) ...... 156

ROLE-PLAY REVIEW The First Kutaﬁ n’s Model United Nations Review by Dmitry Molchanov and Viacheslav Kokurkin (Russia) ...... 162

CONFERENCE REVIEW Traditions and Innovations in the Modern Russian Legal System Review by Elena Cherepakhina (Russia) ...... 166 I. Introduction ...... 167 II. Improving Legal English ...... 169 III. Research Matters ...... 170 IV. Administrative Support Measures ...... 172 V. Panel Session ...... 172 VI. Report Assessment ...... 173 VII. Panel Results ...... 178 VIII. Acknowledgements ...... 179 Bibliography ...... 180

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 2 KUTAFIN UNIVERSITY LAW REVIEW

Dear readers,

You are holding in your hands the third volume of the Kutafin University Law Review (KULawR). The main objective of this periodical is to spread legal knowledge generated by leading Russian scholars all over the world, especially among English-speaking auditoria. We are making all possible efforts to present it for you in actual, modern and innovative form. Previous two volumes of the KULawR were published in September and December 2014. They were dedicated to different issues in the fields of constitutional, international and contractual law, international private law as well as theory and history of law. We tried to present them to a wide range of lawyers in Russia and abroad. The content of this new volume consists of several sections. They cover issues in areas of constitutional law, private law, international law, theory and history of law as well as problems of law and technology. A separate section “Forum” is dedicated to scientific discussions. What’s more, in the third volume we have introduced some new sections concerning role-play and conference review. The new volume has traditionally united authors from different countries. We hope you will enjoy this new volume of the Kutafin University Law Review. We are looking forward to welcoming you as authors of our periodical. The KULawR is equally open for submissions from well-known scholars as well as talented newcomers. It’s always a good opportunity to make a step together to contribute and share our common ideas.

The best ideas are always welcomed!

All additional information you may find on the web page of the journal at .

Kindest regards, Co-editors-in-Chief Irina Alebastrova, PhD, Associate Professor Paul Kalinichenko, Doctor of legal science, Professor www.kulawr.ru Volume 2 May 2015 Issue 1(3) 3

ARTICLE

DEVELOPMENT OF PRIVATE (CIVIL) LAW IN CENTRAL AND EASTERN EUROPE AFTER WORLD WAR II

By Gábor Hamza (Hungary)

Author LLD, Hungarian Academy of Sciences, 1983 Chair Professor of Law, Eötvös Loránd University, Budapest Ordinary member of the Hungarian Academy of Sciences E-mail: [email protected] Abstract The article analyses peculiarities of civil law in socialist countries. The author also considers problems of adaptation of Central and Eastern European law systems in the conditions of modern market economic reality after socialism upset. The author believes that a Roman-law tradition in the mentioned countries used to be and still is presented at both legislative and theoretical level. Romanist (Pandectist) infl uence can be observed in civil codes of all socialistic states. There were three different types of civil law codifi cation in those countries. The fi rst of them (USSR, Czechoslovakia, Poland and Hungary) is characterised by adoption of socialist civil codes. The second type (Bulgaria and Albania) is characterised by adoption of several laws relating to the law of property, law of obligations, law of succession, etc. The third type (e.g. Romania) is characterised by conserving its former “bourgeois” Civil Code. Nowadays a major contribution to the development of private/civil law is the ongoing process of European harmonisation of law in those countries of Central and Eastern Europe which became member states of the European Union. Private Lаw of the Community is increasingly coming to the fore. Today the most “Europeanized” area of private law is a corporate law. But a signifi cant modern trend in the mentioned countries is also so-called re-implementation of the pre-socialistic legislation. In the author’s opinion, the main

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reason for this phenomenon is the intention to maintain a relative autonomy. Keywords Central and Eastern Europe, private law, civil law, socialist law, legal families, legal traditions, codiﬁ cation of law

TABLE OF CONTENTS

I. Introduction ...... 5 II. Socialist Law as a Separate Legal Family ...... 6 A. Introduction ...... 6 B. States with a Strong Romano-Byzantine Legal Tradition ...... 9 C. States with the Roman (Civil) Law Tradition ...... 10 III. Codifi cation of Private/Civil Law in Western Europe and Its Influence on Central and Eastern Europe...... 10 IV. The Process of Codifi cation in Soviet Russia and the Soviet Union ...... 13 V. Characteristics of Private/Civil Law ...... 17 VI. Various Types of Private/Civil Law Codifi cations in Former Socialist Countries ...... 19 VII. Property Rights ...... 22 VIII. Codifi cation of Economic Law ...... 23 IX. The Main Characteristics of the Hungarian Civil Code of 1959 ...... 24 X. Economic Contracts ...... 25 XI. Conclusion ...... 26 Bibliography ...... 27

www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 5

I. INTRODUCTION

In the countries of Central and Eastern Europe, legal traditions that are based in substance either on Roman law or Pandectist school have to be taken into consideration. It should be emphasised that in legal literature this aspect has been largely neglected until recently. Koschaker in his work Europa und das römische Recht (Europe and the Roman Law) and Franz Wieacker in his Privatrechtsgeschichte der Neuzeit (History of Private Law in Europe) completely omitted the development of private/civil law in Central and Eastern Europe. They did not relate this part to Europe. This approach is even more troubling since a Roman-law tradition of the mentioned countries used to be and is still presented at both legislative and theoretical level. This observation is particularly true in relation to the period after political and economic changes, which took place in 1989/1990. One could consider, for instance, Russian Civil Code of 1922 similar – in various respects − to the draft of Russian Civil Code promulgated prior to an outbreak of World War I based on both German Civil Code (BGB) of 1896 and Swiss Code of Obligations of 1881. Romanist (Pandectist) inﬂ uence is also observed in civil codes of other countries of Central and Eastern Europe. The countries of this region can be basically divided into three main groups according to their legal traditions. Group “A” comprises countries of former Soviet Union (USSR), former Czechoslovakia (currently Czech Republic and Slovakia), Poland and Hungary, which are characterised by adoption of socialist civil codes. Group “B” is characterised – like Bulgaria and Albania (until a promulgation of the Civil Code in 1981) – by having adopted special laws relating for instance to the law of property, law of obligations, law of succession, etc. Group “C” (e.g. Romania) is characterised by conserving its former “bourgeois” (i.e. non-socialist) Civil Code. A major contribution to the continuity of private/civil law is an ongoing process of harmonisation of law in the countries of Central and Eastern Europe that became member states of the European Union on May 1, 2004. The harmonisation process started in the early 1990s. Special attention must be paid to the Maastricht Treaty on European Union which was signed on February 7, 1992 and entered into force on November 1, 1993. It signiﬁ cantly extended the competences of the

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European Union in the fi eld of legal harmonisation. Like environmental, labour and tax law, so-called Community Private Law is increasingly coming to the fore in the harmonisation of law in the countries of Central and Eastern Europe. Today the most ‘europeanised’ area of private law is company law. Even in this fi eld, however, several elements of continuity may be observed. In Hungary, for instance, the Commercial Code of 1875 – which became largely ineffi cient in the aftermath of World War II – still governs some legal institutions. Another important example is the re- implementation of the Company Law Act of 1934 in Poland after 1990. As to the other aspects of private/civil law, a wide range of European Communities directives cover, for instance, product liability, law of agency (commercial law) and software copyright law. In the fi eld of labour law the relevant directives concern employer insolvency, equal employment opportunities and transfer of undertakings. All these regulations and directives have a binding effect on legal systems of Central and Eastern European countries. According to articles 67 and 68 of the Europe Agreement (Association Agreement) signed by the European Communities and eight new member states from Central Europe, those states have to bring their legal systems into compliance with the European Communities/European Union law (acquis communautaire). In most countries of Central and Eastern Europe, after the demise of the communist system, new civil codes were promulgated or are currently being drafted. The draft civil codes for Czech Republic, Hungary and Poland had both in their structure and legal regulations a return to Roman Law Tradition. In this process, a return to Pandectist legal traditions is of particular signifi cance. The same applies to all four parts of the new Civil Code of the Russian Federation promulgated between 1995 and 2006.

II. SOCIALIST LAW AS A SEPARATE LEGAL FAMILY

A. INTRODUCTION

a) The well-known assertion of Petr Ivanovič Stuchka (1865-1932), the leading ﬁ gure of Soviet legal philosophy in the early 1920s, inﬂ uential President of the Supreme Court of the Russian Soviet Republic between 1923 and 1932 and also a co-founder and Director of the Institute of www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 7

Law in the Academy of Sciences of the Soviet Union, deserves particular attention: ‘Communism does not mean a victory of socialist law, but a victory of socialism over law, since law is dying together with the abolition of classes with their antagonistic interest.’ As a consequence of this idea, which prevailed until the early 1920s, the Court system and the Bar were both immediately abolished in 1917. All the efforts were made in order to ruin Russia’s legal past. The nihilistic attitude towards law was quite common after the Bolshevik Revolution. Codification changes began even prior to 1921.1 In 1918 the Russian Socialist Federated Soviet Republic (RSFSR) Code of Laws on Acts of Civil Status, Marriage and Guardianship and its Labour Code were promulgated. In 1919 the RSFSR Principles of Criminal Law were adopted. Before that period Soviet Russia operated under a system of judge-made laws. Soviet law revised a legal tradition of pre-revolutionary Russia to the extent that it was compatible with the new traits of the Soviet society. The founders of the Soviet legal system were educated in the Romanist (Pandectist) or civil law tradition. As a result in devising a supposedly entirely new legal system they drew heavily upon the traditions of Roman (civil) law.2 b) The concept of civil law needs some clariﬁ cation. From a historical point of view the term ‘civil law’ refers to the legal system of the Roman Republic and Empire. This term was enshrined in the Corpus Iuris Civilis essentially in the 6th century AD (528–534) by Emperor Justinian I who reigned from AD 527 to 565. He combined Emperors’ constitutions3 and the jurists’ writings.4 He also drafted a kind

1 The beginning of the New Economic Policy (Novaja Ekonomičeskaja Politika). 2 The well-known assertion of Johann Wolfgang Goethe regarding Roman law deserves mentioning in this regard. He speaks of Roman law “as something continuously living that, like a duck diving under water, is hidden from time to time but is never completely lost and reemerges again and again alive” (Entengleichniss). In: J. P. Eckermann: Gespräche mit Goethe in Den Letzten Jahren Seines Lebens, I-II. Teil Leipzig, 1836, III. Teil Leipzig, 1848. 3 The Codex Iustinianus. 4 The Digesta or Pandectae.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 8 KUTAFIN UNIVERSITY LAW REVIEW of text book on law for students.5 All those efforts played a big role in preserving historical Roman law6 and served as the basis for subsequent legal systems throughout all Europe. Later on the term ‘civil law’ became, more narrow in its meaning in terms of legal systems of the so-called civil law countries. And recently it has become even, more narrow according to the perception of European lawyers. Consequently ‘civil law’ is a more restricted concept than ‘private law’ and does not include an entire legal system of a country. Large parts of private law are regulated by other codes or compilations. Legal systems of Central and Eastern Europe have codes as main sources of civil law.7 As a result of essential political and economic changes the importance of civil law in mentioned countries has considerably increased. c) The Romano-Germanic legal tradition has undoubtedly infl uenced a lot the legal systems of Central and Eastern European countries. The early Soviet law was being formed mostly by the legislator, unlike in the countries governed by common-law traditions through many centuries. The legislative infl uence still remains strong although the role of the judiciary is constantly growing. The role of legal scholars has increased in recent years, contrary to the common-law tradition where the role of legal scholarship has been rather negligible. The wide-scale reception8 of Roman law – called ratio scripta (‘written method’) – in many countries in Europe had an impact also on Russian law. A very important aspect of the reception of Roman law in Russia was a foundation of law schools. d) Regarding continuity of law it should be noted that there is considerable autonomy in various legal phenomena, which are generally independent from the economic-political structure of society. This continuity manifests itself in two levels. The fi rst level concerns certain legal terms (e.g. lease, property, contracts etc.), and the second one is about certain concepts, schemes and legal institutions (e.g. the concept and structure of ownership, methods of acquisition of ownership, the concept of possession, the concept of contract etc.)

5 The Institutiones. 6 Ius Romanum or ius Romanorum. 7 Code of Family Law, Code of Labour Law, Code of Farmers’ Cooperatives Law etc. 8 Receptio in complexu.or receptio in globo. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 9

According to their legal traditions countries of Central and Eastern Europe countries can be divided into two groups: – States with a strong Romano-Byzantine legal tradition. – States with the Roman (civil) law tradition.

B. States with a Strong Romano-Byzantine Legal Tradition9

The main characteristics of such legal systems are the following: 1. The State is strongly in favour of the reception of Roman public law (ius Romanum publicum). 2. The ideology of the Roman Empire (imperium Romanum) prevails.10 3. There is no clear separation between secular law and ecclesiastical law – thus, for example, the nomocanon that used to be the major source of law throughout centuries combines both ecclesiastical and secular law. 4. The language of legal acts is the national vernacular (the Slavic one); in the Danubian (Romanian) principalities (Moldavia and Valachia) many statutes (acts) were promulgated in Greek even during the ﬁ rst half of the 19th century. 5. During the 19th and 20th centuries civil codes patterned after the various Western European civil codes were promulgated.11 6. Promulgation of commercial codes in the 19th and 20th centuries followed the model of Western European commercial codes.12

9 Tzarist Russia, Soviet Union, after the dissolution of the Soviet Union in 1991, Russia, Ukraine, Belarus, Moldova, Romania, Yugoslavia (Serbia and Montenegro), Macedonia, Bulgaria and Albania. 10 The idea of the so-called Third Rome = Moscow, in Russian: Tret’ij Rim. 11 The French Civil Code (1804), the Austrian General Civil Code (1811), the Saxon Civil Code (1863), the Portuguese Civil Code (1867), the Swiss Code of Obligations (1881), the Swiss Civil Code (1907), the Italian Civil Code (1865), the Spanish Civil Code (1889) and the German Civil Code (1896). 12 The French Commercial Code (1807), the Spanish Commercial Code (1829), the General German Commercial Code (Allgemeines Deutsches Handelsgesetzbuch) (1861), the Italian Commercial Code (1865), the Italian Commercial Code (1882), the Spanish Commercial Code (1885), the Portuguese Commercial Code (1888) and the German Commercial Code (1897).

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7. There were no universities in the medieval period.13 The University of Dorpat (Jurjev, currently Tartu, Estonia) was founded in 1632 by Swedish in a time when the Baltic territories were not part of the Russian Tzarist Empire. A number of universities were established during the ﬁ rst two decades of the 19th century on the territory of Russia.

C. States with the Roman (Civil) Law Tradition 14

The most important characteristics of these legal systems are the following: 1. The State is basically against the reception of Roman public law (ius Romanum publicum). 2. The reception of Roman private law (ius Romanum privatum) is carried through many different areas of law. 3. The Roman Catholic Church is basically in favour of the reception of Roman private law. 4. Latin is the language of the legal sources, in particular of the legislation throughout many centuries. 5. Universities play a considerable role in legal development.15 6. There was a substantial reception in the 19th and 20th centuries of the civil codes of Western European countries.16 7. There was a substantial reception in the 19th and 20th centuries of the commercial codes of Western European countries.17

13 The first university in this geographical area was that of Moscow founded in 1755. 14 Poland, Hungary, Czech Republic, Slovakia, Slovenia, Croatia, Estonia, Latvia and Lithuania. 15 The first universities were those of Prague (1348), Cracow (1364) and Pécs (1367), founded by the middle of the 14th century. The Dorpat (Tartu) University founded by the Swedish in 1632 with German as language of instruction, must be mentioned here too. 16 The French Civil Code, the Austrian General Civil Code, the Saxon Civil Code, the Italian Civil Code of 1865, the German Civil Code, the Swiss Code of Obligations and the Swiss Civil Code. 17 The French Commercial Code, the Spanish Commercial Code, the General German Commercial Code, the Italian Commercial Code, the Spanish Commercial Code, the Portuguese Commercial Code and the German Commercial Code. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 11

III. CODIFICATION OF PRIVATE/CIVIL LAW IN WESTERN EUROPE AND ITS INFLUENCE ON CENTRAL AND EASTERN EUROPE

Codification of law is one of the most important parts of the civil-law system, and one of the main differences from common-law jurisdictions. The codification of civil law in modern Europe began in the late 18th – early 19th centuries. The first modern civil code in Europe was the West Galician Code18 adopted in 1797. It came into effect four months later also in Eastern Galicia under the name Civil Code of Eastern Galicia.19 The French Civil Code of 1804, le Code Napoléon, can be also regarded as the fi rst modern civil code. It had a big infl uence both within the European Continent and outside Europe. In civil-law countries codes are undoubtedly shall be considered as primary piece of legislation. They have a unitary nature that differentiates them from so-called “codes” in the countries with common-law tradition, for example, the United States of America. However, commercial law (mercantile law), which is a part of business law (law of corporations), was not included into the fi rst civil codes. The fi rst code straight mentioned business organizations (corporations), was the Civil Code of the Duchy of Parma, Piacenza and Guastalla (1820) in Italy. The existing forms of corporations were found as specifi c part of law of obligations under the title of Delle Società. The Civil Code of Modena of 1851 in its last (fourth) part also specifi es various forms of business organizations. Swiss Code of Obligations of 1881 includes regulations concerning business organizations and commercial contracts. The updated version of Swiss Code of Obligations was included (as Book Five) in Swiss Civil Code of 1907. Thus, Swiss Civil Code became fully ‘commercialised’ since Book Five of this Code unifi ed the regulation of all activities and relations that generally fell under the headings of law of contract and business law, including negotiable instruments. The advantages of this solution are its simplicity and clarity. The disadvantage is a risk for internal imbalance or asymmetry in the integrated code.

18 Westgalizisches Gesetzbuch. 19 Ostgalizisches Gesetzbuch.

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The codes in the states with common-law jurisdiction generally do not have organic unity. They do not contain generally-binding legal principles either. These legislative acts are rather a compilation of separately enacted statutes. Austrian General Civil Code20 was a project of the School of Natural Law (ius naturale or ius naturae) and deserves a special attention. The Saxon Civil Code, which came into effect in 1865, was the fi rst Code included general provisions (Allgemeiner Teil). It was also the fi rst one that followed the Pandectist system. The civil-law systems of the countries of continental Europe are usually divided into four main groups: Codes patterned after French and Spanish Civil Codes; Codes following Swiss Code of Obligations of 1881/188321 and Swiss Civil Code of 1907/1912; Codes patterned after either the drafts or the fi nal version of German Civil Code of 1896/1900; and Codes drawing upon Italian Civil Code of 1865 and Italian Civil Code of 1942. The impact of Austrian General Civil Code was generally limited by the territory of the Austrian Empire and later on – after the Austro- Hungarian ‘Compromise’ (Ausgleich)22 – by Austro-Hungarian Empire (Dual Monarchy). Austrian Civil Code includes 1502 sections (paragraphs) and is divided into three parts: I Personal Rights; II Rights arising from property and obligations (contracts and torts); III Common provisions related to both kinds of rights. Austrian General Civil Code has also a short introduction part, consisting of fourteen sections. It was substantially modified by means of regulations (Notverordnungen) during World War I. Austrian General Civil Code had a big influence on Serbian Civil Code of 1844 that included only 950 sections. Serbian Civil Code of 1844 demonstrated several divergences from Austrian General Civil Code, mainly in family law and the law of succession.

20 Allgemeines Bürgerliches Gesetzbuch (ABGB) (1811). 21 25 Sächsisches Bürgerliches Gesetzbuch or Bürgerliches Gesetzbuch für das Königreich Sachsen (1863). Revised substantially during the preparation of the Swiss Civil Code. 22 Enacted in Hungary by Statute XII of 1867. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 13

Each of the codes mentioned above has its distinctive features. French Civil Code23 can be described as episodic one, containing solutions for some important issues. Swiss Code of Obligations and Civil Code are characterised by their simple language. German Civil Code is – in many aspects – a philosophical system with its general and special parts. Book One of German Civil Code under the title “General Part” (General Provisions) follows mainly the General Part of Saxon Civil Code. Provisions contained in the General Part are applied to all other parts of the Code. Book 1 of German Civil Code is preceded by the Introductory Act to the Civil Code.24 This book is followed by books on obligations, property, family law and succession. However, it is worth mentioning that no lawyer relies exclusively on civil code since it may not cover all the subjects to be regulated by civil law. In some countries civil law has not even been codified. There are plenty of other sources of civil law. The principal sources are adopted by a legislature. However, decrees of government may also contain regulations concerning civil law. The same refers to custom and usage. Legal doctrines and commentaries are common as well. The judiciary may be also considered although a role of courts as law making institutions is the subject for discussion. It is generally accepted that court decisions cannot be regarded as a formal source of law. As a result case law generally does not have a binding force. But there must be a distinction made between de jure and de facto influence of court decisions i.e. sentences. All mentioned above apply to law systems of Central and Eastern European countries as well.

IV. THE PROCESS OF CODIFICATION IN SOVIET RUSSIA AND THE SOVIET UNION

The process of codifi cation of law in the Soviet Union went through several steps. The fi rst stage started in 1917 with the capture of power by the Bolsheviks (Bolshevik Revolution) and includes New Economic Policy period (1921–1928). The second stage was mainly about the fi rst Five- Year Plan in 1929/1930 and lasted until the mid-50s. The third period

23 From 1807 until 1815 and from 1852 till 1870 Code Napoléon. 24 Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 14 KUTAFIN UNIVERSITY LAW REVIEW began in 1957–1958 with the enactment of a number of federal (for the whole union) principles of legislation. a) Codifi cation in Soviet Russia and Soviet Union: 1. The fi rst two Soviet codes were adopted in 1918. The introduction of New Economic Policy in 1921 used to be a major stimulant for codifi cation in the RSFSR. It resulted in the enactment of fi ve codes in 1922.25 The Civil Code of 1922 was mostly based on German Civil Code and to some extent on Swiss Civil Code of 1912 – particularly on the updated version of Swiss Code of Obligations. Following the tradition of the Western European civil-law countries, Soviet codes included General Part that contained general provisions and a Special or Specifi c Part. A particular feature of Soviet legislation was the fact that in some cases general provisions were adopted separately. Principles of Criminal Law and Principles of Civil Procedure of RSFSR enacted in 1919 both contained only general principles of a relevant branch of law. The fi rst Soviet Constitution of Soviet Russia, RSFSR Constitution, was adopted on July 10, 1918. The fi rst Constitution of the Soviet Union26 was adopted on January 30, 1924 and established a division of competence between federal and republics governments in regards to legislation process. The federal government was authorised to enact general principles of legislation valid throughout a territory of all Soviet Union. Each republic being a part of Soviet Union was empowered to adopt acts for itself in accordance with the general principles adopted by federal government. 2. As a result of the New Economic Policy and the first year of Five-Year Plan, command economy was introduced into Soviet Union. It seemed very logical to expect that the introduction of the centrally planned and commanded economic system would result in the enactment of new codes in the country. However, no new civil code was enacted. The most important legislative act was the second Constitution (so- called Stalin Constitution) of the Soviet Union adopted on December 5, 1936. In the meantime new Land Code and Water Code of the RSFSR

25 The RSFSR Criminal Code, the RSFSR Land Code, the RSFSR Labour Code, the RSFSR Statute on Court Organisation and the RSFSR Civil Code. 26 Promulgated on 30 January, 1924. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 15 were drafted. Furthermore, several drafts of federal civil and criminal codes were circulated. In 1938 the Act on Court Organization was promulgated at all-Union level. However, no further acts were adopted in the meantime. 3. Due to an outbreak of World War II the codifi cation process came to a standstill. Codifi cation was further delayed in the immediate aftermath of World War II. New Federal Principles also called Fundamentals were promulgated only in 1958. The Federal Principles were legal rules meant to be directly applied by the courts. The USSR Principles of Criminal Legislation and Criminal Procedure as well as Principles of Court Organization were adopted in the meantime. What’s more, the USSR Principles of Civil Legislation and Civil Procedure were promulgated in 1961. A thirty-year gap had to be bridged. The codification continued also during the 1960s and 1970s. In 1977 a new Constitution, the so-called Brezhnev Constitution, was adopted. And the following year each republic being a part of the Soviet Union drafted its own constitution. b) Constitutional regulations concerning codifi cation in Soviet Russia and Soviet Union: 1. The Constitution of 1918 (subsection 49/n) granted the legislation power, including enactment of judicial, civil and criminal laws, to a Parliament. 2. The Constitution of 1924 introduced the Soviet-style federal system of government and clarifi ed the division of competence between the federal government and member republics in terms of legislation. According to article 1 of the Constitution the federal (central) government was empowered to issue guiding principles of legislation containing the general basis and provisions relating to a particular branch of law (civil law, criminal law, law of civil procedure, law of criminal procedure). On the basis of these principles government of every union republic was able to draft various codes for its republic. A number of areas of legal regulation remained the exclusive competence of the federal (central) government. For instance, all union republics codes regulated commons, concerning customs, merchant shipping, benefit for servicemen and air. Exclusive federal legislative authority was about foreign trade, transport and the armed forces.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 16 KUTAFIN UNIVERSITY LAW REVIEW

Constitution of 1936 widened the exclusive competence of the federal government to adopt all union civil and criminal codes.27 This provision, however, did not have any practical effect. No any union republic drafted a code in question after the terms of the Constitution of 1936 were adopted.28 c) Similarities between Western European countries and Soviet Union in terms of codifi cation: 1. A division between the General Part and the Special Part of the codes (technical similarity). 2. Some areas of law remained uncodifi ed (e.g. most areas of administrative law). 3. Existence of supplementary legislation (special acts, statutes concerning fi elds not covered by the codes). d) Differences of the Soviet Union codifi cation from the one existed in Western European countries: 1. The absence of any commercial code in the Soviet Union, although the idea of a two-sectorial law29 prevailed since 1927. 2. In spite of existing of various law branches30 the traditional separation of public (ius publicum) and private law (ius privatum) was ignored in Soviet Union.31 Thus, that division was quite relative in the Soviet Union. 3. Decisions of the Supreme Court of Soviet Union were obligatory for all lower courts. There were also ‘guiding explanations’32 for them. 4. According to the Constitution, the Supreme Court was empowered to initiate legislation process in the Supreme Council of the USSR. 5. Social content of the codes. For example, Article 16 of the Criminal Code of the RSFSR invalidated any transactions made against socialist state and public interests.

27 Art. 14[m]. 28 Art. 19 of the Constitution of the RSFSR. 29 Dvukhsektornoje pravo. 30 Family law, labour law, law of the farmers’ cooperatives etc. 31 Regarding the classification of the legal systems: G Hamza: The Classification (divisio) into ’Branches’ of Modern Legal Systems (Orders) and the Roman Law Tradition. European Journal of Law Reform 8 (2006) 361–382. 32 Rukovodjashchije razjasnenjia. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 17

6. The preambles of the Soviet Union codes had a decidedly ideological ﬂ avour. For example, the Code on Marriage and Family of the RSFSR included a provision – referring to the basic concept of the Code – ‘to strengthen the Soviet family based on the principles of communist morality and make children ready to actively participate in the construction of a communist society’. e) Reasons for similarities existence between Western European countries and Soviet Union in terms of codiﬁ cation: 1. The legal tradition of pre-revolutionary Russia was basically part of the Western European legal tradition. That is why there are some similarities that can be found also in Soviet law. 2. Russian Code of Criminal Procedure of 1864 was mostly an imitation of French and English criminal procedural law. 3. The Judicial Reform of 1864 established new legal basics in Russia. The professional judiciary became independent from the executive branch of power. A professional Bar and a modern system of judicial procedure, including trial by jury, were established. 4. Some Russian lawyers were getting their degrees at western universities, for example, Law Schools of Edinburgh and Glasgow Universities in Scotland, which legal system is based on civil law traditions. During the 19th century a number of outstanding young Russian lawyers were studying also at German universities, in particular in Berlin, Heidelberg and Leipzig.

V. CHARACTERISTICS OF PRIVATE/CIVIL LAW

a) On the one hand, continuation of legal tradition is observed in soviet legislature – at least along general lines of several legal institutions (e.g. the concept of property). The Civil Code of RFSFR33 defines, for example, an owner’s rights as follows: ‘An owner may be in possession of a thing and make use of it and dispose of it within the limits specified by the law’. The same definition relating to owner’s rights can be found both in Article 19 of the General Principles of the Civil (Law) Legislation of the Soviet Union adopted in 1961 and Article 480 of the new Civil Code of the Russian Federation. The similarities

33 1964 (a 92).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 18 KUTAFIN UNIVERSITY LAW REVIEW of socialist and Ulpian (Roman jurist) concepts in terms of property are obvious.34 b) On the other hand, socialist civil law was substantially based on commodity-money relations. Personal property was more about satisfying personal and family needs of the citizens. c) It is important to take into consideration legal traditions of the countries of Central and Eastern Europe based on Roman law. In legal literature the development of law in mentioned regions was unreasonably neglected. This opinion was shared by Paul Koschaker in his work Europa und das römische Recht,35 Francesco Calasso (Medio Evo del diritto36) and Franz Wieacker in Privatrechtgeschichte der Neuzeit.37 However, as we could understand from the mentioned above, Roman law traditions had a big infl uence on both doctrine and legal practice of former socialist countries. d) It is worth mentioning that from a dogmatic point of view, socialist-type RSFSR Civil Code38, in various aspects, is similar to the draft of Russian Civil Code of 1913.39 It should be noted that it strongly resembles both German Civil Code of 189640 and Swiss Code of Obligations of 1911 (updated version). One of the reasons for that infl uence is the fact that a signifi cant number of outstanding Russian legal experts were studying in Berlin University where the Russian Imperial Seminar of Roman Law41 was established in 1887 and existed until 1896. e) The Civil Code of the Soviet Union was established on December 30, 1922 and came into effect on January 1, 1923, i.e. during the era of

34 Plena in re potestas – whose elements are as follows: uti (the use of, or extraction of all useful qualities from, the thing (res), frui (the collection of fruits, both natural and economic), habere (having the thing in patrimony), possidere (the possession of the thing, that is the actual or economic holding of a thing) and abuti (the capacity to sell, donate, consume, or destroy the thing). 35 1947. 36 1954. 37 1952 (2nd rev ed) 1967. 38 Grazdanskij Kodeks. It was promulgated on 31 October 1922 and became effective on 31 January 1923. 39 Grazdanskoje ulozenije – Proiekt. 40 Effective 1 January 1900. 41 Kaiserlich-Russisch Romanistisches Seminar. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 19 the New Economic Policy (NEP). Alexej Grigorievich Gojkhbarg (1883– 1962) was the chief complier of the fi rst socialist Civil Code. A new draft (project) of the Civil Code was prepared by A.G. Gojkhbarg two years later, in 1924. It is worth mentioning that Stuchka and Amfi teatrov also prepared their drafts of Civil Code in 1931. Both drafts aimed to make a recodifi cation of civil law at federal level. All the republics were supposed to have their own civil codes since their competence to codify had been transferred to the federal level by virtue of the Constitution of 1924 as one of the Basic Principles of Legislation. It has to be outlined that the Soviet Union at federal level had no civil code. The Civil Code of Soviet Russia served as a model code for all union republics. The fi rst draft of the Civil Code after World War II was supposed to refl ect the civil law of victorious socialism and also serve as an example for the democratic countries propagandizing socialism instead of capitalism. The Civil Code of 1922 had a big infl uence on the Principles (Fundamentals) of Civil Legislation of the Soviet Union (1961) and later, on various codes of the fi fteen constituent Republics (for example, Civil Code of the RSFSR of 1964). The Civil Code of 1922 which contained 435 sections (articles or paragraphs) was prepared in a record period of time for less than four months. The Code was divided into four parts. The General Part (General Provisions) of the Code included provisions concerning legal capacity, individuals, legal entities (corporations), legal acts (transactions), and the statute of limitations. Part Two (Real Rights) dealt with ownership, mortgage and other iura in re aliena. Part Three regulated obligations issues (contracts and torts). Part Four contained succession (inheritance) provisions. A separate statute enacting the Code contained transitory provisions in nine sections. f) The Fundamentals were adopted at federal level in 1961. These Fundamentals had a normative character since they were implemented by courts. g) The RSFSR Civil Code of 1964 consisted of 569 articles, which following substantially Pandectist system were united in eight parts: General Principles, Law of Property, Law of Obligations (including general principles of obligations and specifi c types of obligations), Copyright Law, Right to Discoveries, Law of Inventions, Law of Succession, and, fi nally, Legal Capacity of Aliens and Stateless Individuals. Romanist infl uence

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 20 KUTAFIN UNIVERSITY LAW REVIEW was also very important in relation to civil codes of the other European former socialist countries.

VI. VARIOUS TYPES OF PRIVATE/CIVIL LAW CODIFICATIONS IN FORMER SOCIALIST COUNTRIES

In this section the author is going to point out, in a more or less schematic way, the variety of codifi cation efforts regarding the civil law in former socialist countries. Civil legislation can be divided into four main groups: a) Socialist civil codes: USSR, Czechoslovakia (1950 and 1964), Poland (1964), Hungary (1959) and Albania (1981). The promulgation of the Czechoslovak Civil Code (1950) was necessary because of the existence of different legal systems and traditions within Czechoslovakia. For many centuries the Czech (and Moravian) legislature was under the infl uence of the Austrian General Civil Code of 1811, whereas Slovakia, being a part of Hungary until 1918/1919, was dominated by Hungarian customary law (ius consuetudinarium or consuetudines). However, commercial (mercantile) law became codifi ed in 1875. Substantial parts of civil law were the matters, concerning tutorship and curatorship, as well as some marital and intellectual property provisions. b) Special laws. Bulgaria where no comprehensive Civil Code existed prior to the World War II, had the following special laws: Law of Succession (1949), Law of Persons and the Family (1949), Law of Obligations and Contracts (1950), Law of Property (1951), Law of Economic Organizations (1970) and Law of Citizens’ Property (1973). c) Old ‘bourgeois’ codes: Romanian Civil Code of 1864, patterned after the French Civil Code (1804), and the Draft of the Italian Civil Code of 1865 that was in force with various modifi cations throughout the entire socialist political and economic period, at least in theory. Taking into account that obviously the Romanian Commercial Code of 1887 was drafted to regulate the commerce of a capitalist state, it would have been impossible to regulate the planned economy and legal relations, arising between socialist economic organizations (mainly state enterprises). Thus, the Code was unsuited to state and cooperative trading, since its aim was to satisfy the needs of workers and raise their standard of living. During the socialist period such trading was consequently regulated by www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 21 civil law since its basic principle of state ownership in terms of production was to appropriate it in full. Nevertheless, certain provisions of the Commercial Code were still applicable even though their socio-economic content had been changed. It related, for example, to the provisions concerning transport contracts, maritime trade and navigation. In the German Democratic Republic (GDR) the German Civil Code (BGB) was partly in effect until January 1, 1976. In 1965 a new socialist Family Code was adopted. It should be noted that the Vertragsgesetz (Law on Contracts) of 1965, which was replaced by a revised Act of Contracts in 1982, regulated the socialist economic relations. In this respect it is worth mentioning that outside Europe, in Cuba, a new socialist Civil Code came into force on April 12, 1988 which is still in force. It contains 547 articles. d) Particular legal systems. In Yugoslavia, for historical reasons, there was no civil code both at the federal and national republics level. It should be taken into consideration that in Croatia and Slovenia the Austrian General Civil Code was applicable. In Serbia Austrian Civil Code of Inspiration (1844) was applied. In Montenegro the General Code of Property (1888) consisted of 1031 articles also assumed the function of a Civil Code. After 1946 the following basic laws, which had the signifi cance also in the fi eld of Private/Civil law, were adopted: 1. The Constitution of 1974 (included 406 articles). 2. The Law on Associated Labour of 1976 also called ‘Code of Self- management’ (included 671 articles). 3. The Law of Obligations of 1978. This law was based on the Draft Law of Obligations and Contracts published in 1969 drafted by the well- known legal scholar, Mihailo Konstantinovich. The draft was drawn, in particular, upon the Swiss Law of Obligations and Book IV (On Contracts) of the Italian Civil Code of 1942. 4. The Law of Basic Property Law Relations of 1980. 5. Legislation regarding family law and law of succession was adopted within the authority of six republics. 6. The Act on Economic Relations of 1988 was the fi rst attempt to introduce a market-oriented economy. It is worth mentioning that in a real sense Yugoslavia became a federal state in 1974. However, the previous Constitution of 1963

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 22 KUTAFIN UNIVERSITY LAW REVIEW contained legal bases of the federal government. So, Yugoslavia tried to decentralise its legal system. As a result it became necessary to establish a set of inter local norms of conﬂ ict of law (conﬂ ictus legum) within the country. e) Socialist civil codes did not include the provisions concerning family law, labour law, land law and cooperative agricultural law. None of them regulated the relations regarding incorporeal goods. However, a great part of the so-called economic relations were regulated by Civil Codes, with the exception of the Czechoslovak Civil Code of 1964 and the Civil Code of the German Democratic Republic of 1975.

VII. PROPERTY RIGHTS

a) The success of privatisation depends, to a considerable extent, on the reform of property rights in the countries of Central and Eastern Europe. The difficulties related to joint ventures with the participation of western countries were linked to the absence of clear concept of property rights in the countries of former Soviet Union. In some countries of the Commonwealth of Independent States (CIS) there was a real resistance to adopt private property42 as the most important form of ownership. b) The reform of property rights in Central and Eastern Europe includes the following steps: (1) regulation relating to the ownership system in a normative way (adoption of declarations is not acceptable); (2) recognition of the idea of pluralism of various forms of ownership, including equal protection for all forms of property; (3) introduction of substantial guarantees for the protection of property rights against state interference. c) The comprehensive reform of property rights is an essential part of the general overhaul of the legal system in the countries of Central and Eastern Europe. The relationship between public (ius publicum) and private law (ius privatum) has to be an object for comprehensive reconsideration. A special attention in this point should be paid on German experience (State Treaty). The origin of the restriction, concerning property rights in the Soviet Union (Soviet Russia), dates

42 Častnaja sobstvennost. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 23 back to the instruction of Lenin and Civil Code of 1922.43 This tainted approach, leading to the victory of totalitarian ideas over law44, must be avoided in any modern country. d) Property rights need an appropriate environment, enabling owners to dispose their property. The process of transformation from a command to a market-oriented economy is possible when certain requirements are observed. Thus the concept of ownership – known in Roman law – with all its elements of ownership (possession, disposal, etc.) must be reintroduced to replace the traditional concept and structure of property.

VIII. CODIFICATION OF ECONOMIC LAW

a) In the Soviet Union the idea of having separate economic code appeared in 1927 after the New Economic Policy had not work out. President of the Supreme Court of the RSFSR, Petr Stuchka, was the first who launched the idea of creation of a two-sectorial law system.45 In terms of this concept an independent economic law (i.e. economic- administrative law)46 was to be created in order to emphasise the contrast between the ‘old’, ‘bourgeois, ‘abstract and unequal’ civil law and the new ‘concrete and equal’ socialist law. The idea of the promulgation of an autonomous economic code was definitively rejected in 1961 when the Fundamentals of Civil Legislation were

43 “We do not recognise any ‘private’ thing; with us, in the field of economics, there is only public, and no private law. The only capitalism we allow is that of the State … . For this reason, we have to widen the sphere of state interference with ‘private’ legal relations, and to enlarge the right of the State to abolish ‘private’ agreements. Not the corpus juris Romani, but our revolutionary consciousness of Justice ought to be applied to civil law Relations” (Letter written in 1918 by Lenin, addressed to Kursky, the then deputy people’s commissar of justice of Soviet Russia). 44 Cf Stuchka’s widely known view according to which communism means not the victory of the socialist law but the victory of socialism over law. 45 Dvukhsektornoje pravo. 46 The term khozjajstvennoe pravo was in use after 1931.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 24 KUTAFIN UNIVERSITY LAW REVIEW promulgated. The prevailing concept was to adopt civil norms, regulating every kind of ownership relationships. Those norms were supposed to concern property relationships between citizens as well as the relationships between citizens and different types of economic organizations. The state escaped most of them. Nonetheless economic contracts47 were often applied. Economic contract can be defined as a contact concluded by soviet organizations in order to achieve a certain economic goal. b) An Economic Code in its proper sense came into force on July 1, 1964 in Czechoslovakia. Czechoslovakia was the only socialist country where the idea of adopting an economic code as a separate document prevailed. Thus, International Trade Code of 1964 regulated foreign commerce-related economic relations. Czechoslovak Civil Code48 regulated ‘economic contracts’ in a general way. According to this Code provisions a special act was to regulate the legal aspects of relations between socialist economic units (mostly state enterprises). A distinct codiﬁ cation regarding the economic law was foreseen by the Constitution of 1960, providing the constitutional framework for this particular type of regulation. c) It is worth mentioning that in German Democratic Republic (GDR), for instance, the situation in this domain was completely different. From 1969 to 1970 the East German legal doctrine abandoned the idea of giving life to an independent economic code. It is, however, obvious that there was some autonomy existing in this sector of legal system. There were also some doctrinal views which used to have an official character.49 The Vertragsgesetz50 of Heinz Such was, in practice, an Economic Code. Later on the Vertragsgesetz was replaced by a new revised act. As a result, in the German Democratic Republic,

47 Khozjajstvenny dogovor. 48 Obcansky zakonik. 49 Eg, Walter Ulbricht’s proclamation to the VIIth Congress of the East German Communist party (Sozialistische Einheitspartei Deutschlands) held in April 1967. 50 Gesetz über das Vertragssystem in der sozialistischen Wirtschaft (Law on Contracts, i. e. Law on Contractual System in the Socialist Economy). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 25 commodity exchange (Warenverkehr) between citizens (Bürger) and between state enterprises and foreign trade51 were regulated separately.

IX. THE MAIN CHARACTERISTICS OF THE HUNGARIAN CIVIL CODE OF 1959

Hungarian civil law was not codified, and consequently court practice played very important role. Judges often took into consideration foreign, in particular Austrian, rules while taking decisions. The Hungarian Civil Code52 of 1959 came into force on May 1, 1960 and was characterised by: a) Unifi ed concept of civil law; b) Detailed regulation of socialist property; c) Containing less defi nitions and programmatic, aspirational norms, or in other words policy declarations, in comparison with the Civil Code of the German Democratic Republic; d) Detailed regulation of all legal relations by operative norms; e) Non-adopting the notion of the juridical act (Rechtsgeschäft) which is one of the basic notions German Civil Code contains. The Hungarian Civil Code also disregarded the General Part of the Pandectist model considering it to be too abstract one; f) Including the category of “real rights” (iura in rem) and a separate chapter devoted the rights of utilisation. This chapter used to regulate the classic real rights of enjoyment, use and servitude as well as the new forms of use. The Hungarian Civil Code underwent various modifi cations53 due to the economic reforms initiated on January 1, 1968. The Code was “depoliticised” after far-reaching political and economic changes started in 1990.54

51 See the Gesetz über internationale Wirtschaftsverträge (Law on International Economic Contracts) of 1976. 52 Polgári Törvénykönyv abridged Ptk. 53 In 1967, 1977, 1981, 1984, 1985, 1986, 1987, 1988 and 1989. 54 The most important changes took place by means of statutory modification of the Civil Code in 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 2000, 2001, 2002, 2003, 2004 and 2005.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 26 KUTAFIN UNIVERSITY LAW REVIEW

X. ECONOMIC CONTRACTS

The union of the countries of Central and Eastern Europe was achieved by means of economic contracts (in German: Planverträge) concluded by socialist economic organizations (predominantly state enterprises) – mostly in order to implement fi ve year plan – imposed on them by a state. If a duty to enter into a contract, its term and a particular task to be accomplished was imposed on organizations, it was called a ‘planned contract’. If the parties decided themselves a task to be accomplished in the light of the relevant part of the state plan, which determined just general provisions, such as the value or the quantity of goods or services to be produced, the contract freely entered into was known as a ‘regulated contract’. The principal aim of economic contracts was to provide a detailed and concrete means for the plan implementation considering specifi c needs and capabilities of the parties. Thus, the plan was being carried out through these contracts with the help of their parties. Prior to 1968 the economic plan used to be a fundamental and obligatory law. Socialist economic organs had to regulate themselves strictly according to the plan and directives issued by superior state authorities. After the introduction of the new system of economic direction, called the ‘New Economic Mechanism’, the State Economic Plan became practically a general and comprehensive directive. State enterprises gained more independence. Hungarian socialist civil law knew the following types of contracts: supply contracts, contracts for acquisition of warehouses, project contracts, enterprise contracts, construction contracts and contracts for development. After 1977 contracts were no longer related to a particular form of property. State enterprises relations had a mercantile character. The most important consequences of economic reform in the legal fi eld were the establishment of legal equality between contracting parties and granting a freedom and autonomy for the enterprises. It must be stressed that the economic contract, the most common legal institution of the command economy, was not a contract in its proper sense, giving the lack of consent (consensus) between the contracting parties. The economic contract was rather an administrative act. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 27

XI. CONCLUSION

One of the most important tasks of European Union today is the harmonisation of law within the member states. The Maastricht Treaty on European Union considerably extends the competences of the European Union in the fi eld of legal harmonisation. Like environmental, labour and tax law, the so-called community private law is becoming increasingly to the important. The most Europeanised area of private law is company law. As to other aspects of private law a wide range of European Communities directives cover, for instance, product liability, commercial agent law and software copyright law. In the fi eld of labour law the relevant directives concern employer-insolvency, equal employment opportunities and transfer of undertakings. In compliance with Articles 67 and 68 of the Europe Agreement signed by the European Communities and new member states located in Central and Eastern Europe, these countries had to bring their legal systems into compliance with the European Union Law (acquis communautaire). What’s more, in the beginning of the 1990’s most Central and Eastern European countries started a process of civil/ private law harmonisation. A resolution55 of the Parliament of European Communities requires member states to take steps in order to develop European private law. Being sponsored by European Council, the Commission on European Contract Law has formed the principles of European contract law. The Accademia dei Giusprivatisti Europei in Pavia is currently drafting the Code of European Contract Law. This Code is being modelled after Italian Codice Civile and Contract Codes drafted in the 1960s and 1970s in the United Kingdom. These long-term efforts of harmonisation are not going to be completed in the nearest future. Some countries are still insisting to maintain their autonomy in the fi eld of legal traditions.

55 EC OJ C 158.400, 26 May 1989.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 28 KUTAFIN UNIVERSITY LAW REVIEW

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– ‘Russian Law: The End of the Soviet System and the Role of Law’ [1993] Law in Eastern Europe Finch J, Soviet Legal Theory (3rd edn, 1979) Földi A & Hamza G, A Római jog története és institúciói (History and Institutes of Roman Law (19th edn, 2014) Frydman R, Rapaczynski A and Earle JS (eds), The Privatization Process in Central Europe, vol 1 (CEU Privatization Reports 1993) Glendon MA, Gordon MW and Osakwe C, Comparative Legal Traditions (1982) Gsovski V, Soviet Civil Law, vols 1–2 (1948–1949) Hamza G, Az Európai magánjog fejlődése. A modern magánjogi rendszerek kialakulása a római jogi hagyományok alapján (Trends in the Development of Private Law in Europe. The Role of the Civilian Tradition in the Shaping of Modern Systems of Private Law) (2002) – Die entwicklung des privatrechts auf römischrechtlicher grundlage unter besonderer berücksichtigung der rechtsentwicklung in Deutschland, Österreich, der Schweiz und Ungarn (The Development of Private Law Based on Roman Law Traditions with Emphasis on the Legal Development of Germany, Austria, Switzerland and Hungary) (2002) – Le développement du droit privé Européen. Le Rôle de la Tradition Romaniste Dans la Formation du Droit Privé Moderne (2005) – Entstehung und entwicklung der modernen privatrechtsord- nungen und die Römischrechtliche tradition (2009) Hazard JN and Shapiro I, The Soviet Legal System (1962) Hazard JN, The Communists and Their Law: Common Core of the Legal Systems of the Marxian Socialist States (1969) – ‘Soviet Law: The Bridge Years 1917–1920’ in WE Butler (ed), Russian Law: Historical and Political Perspectives (1977) – ‘Contrasting Socialist and Capitalist Contracts (book review)’ [1988] Columbia Law Review Huskey E, Russian Lawyers and the Soviet State, The Origin and Development of the Soviet Bar 1917–1939 (1986) Ioffe OS, ‘Soviet Law and Roman Law’ [1982] Boston University Law Review – & Maggs PB, Soviet Law in Theory and Practice (1983) – Soviet Civil Law (1988)

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Izdebski H, ‘General Survey of Developments in Eastern Europe in the Field of Civil Law’ [1996] Law in Eastern Europa Klishin A, ‘Economic Reform and Contract Law in the USSR’ [1990] Columbia Journal of Transnational Law Knapp V, ‘Unity or Diversity in Civil Law: A Legislative Dilemma in the Czech Republic’ [1994] Parker School Journal of East European Law – ‘Comparative Law and the Fall of Communism’ [1995] Parker School Journal of East European Law Ludwikowski RR, ‘Socialist Legal Theory in the post-Pashukanis Era’ [1989] Boston College International & Comparative Law Review Maggs PB, ‘The Russian Courts and the Russian Constitution’ [1997] Indiana International & Comparative Law Review Medushevsky A, ‘Power and Property in Russia: The Adoption of the Land Code’ [2002] East European Constitutional Review Oda H, ‘Judicial Review of Administration in the USSR’ in AJ Schmidt (ed), The Impact of Perestroika on Soviet Law (1990) – ‘The Soviet Procuracy Under Gorbachev’ in AJ Schmidt (ed), The Impact of Perestroika on Soviet Law (1990) Quigley J, ‘Socialist Law and the Civil Law Tradition’ (1989) The American Journal of Comparative Law – ‘The Romanist Character of Soviet Law’ in FJM Feldbrugge (ed), The Emancipation of Soviet Law. Law in Eastern Europe (1992) Remington TF, ‘Russia’s Federal Assembly and the land code’ (2002) 3 East European Constitutional Review Rudden B, ‘Courts and Codes in England, France and Soviet Russia’ [1974] Tulane Law Review – ‘The Role of the Courts and Judicial Style under the Soviet Civil Codes’ in DD Barry, FJM Feldbrugge & D Cask (eds), Codiﬁ cation in the Communist World (1975) – ‘Scientiﬁ c Socialism and Soviet Private Law’ [1986] Notre Dame Law Review Russian Law: Historical and Political Perspectives (WE Butler ed, 1977) Sacco R, ‘The Romanist Substratum in the Civil Law of the Socialist Countries’ [1988] Review of Socialist Law Sigel F, Lectures on Slavonic Law (1902) www.kulawr.ru Volume 2 May 2015 Issue 1(3) Gábor Hamza Development of Private (Civil) Law in Central and Eastern Europe after World War II 31

Simons WB, ‘An Introduction to the Soviet Codes of Law’ in WB Simons (ed), Law in Eastern Europe (1980) Smith GB, The Soviet Procuracy and the Supervision of Admini- stration (1978) The Soviet Legal System, Selected Contemporary Legislation and Documents (WE Butler tr, 1978) Timasheff NS, ‘Soviet Law’ [1952] Virginia Law Review Thaman SC, ‘Reform of the Procuracy and Bar in Russia’ (1996) 1 Parker School Journal of East European Law Vékás L, ‘Changes in Ownership and in Ownership Theory’ [1989] The New Hungarian Quarterly Viechtbauer V, ‘Arbitration in Russia’ [1993] Stanford Journal of International Law Wortman RS, The Development of a Russian Legal Consciousness (1976) Zajtay I, Refl ections on the Problem of Grouping the Families of Laws (CILSA 1973) Zweigert K and Kötz H, An Introduction to Comparative Law (T Weir ed, 2nd edn, 1992) Zimmermann R, ‘Codifi cation: History and Present Signifi cance of an Idea (a Propos the Recodifi cation of Private Law in the Czech Republic)’ [1995] European Review of Private Law

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ARTICLE

RIGHT TO PRIVATE PROPERTY: CONSTITUTIONAL EVOLUTION

By Veniamin Chirkin (Russia)

Author LLD, Saint Petersburg State University, 1964 Professor, Chief researcher at the Institute of State and Law, Russian Academy of Sciences Chief researcher at the Institute of Legislation and Comparative Law under the Government of the Russian Federation Honored Worker of Science of the Russian Federation and Honored Lawyer of the Russian Federation Email: [email protected] Abstract Nowadays the attitude to private property in people’s mind and its constitutional regulation has signiﬁ cantly changed. There are no more deﬁ nitions of private property as sacred and inviolable. The exception is Article 17 of the French Declaration of the Rights of Man and of the Citizen of 1789 that is considered as a part of non- consolidated Constitution of France (‘le bloc de constitutionnalité’). There are new approaches in regulating the institution of private property institution in constitutional law; they are referred to the economic and social justice, as well as to the social function of private property. The legitimacy of its nationalization in the interests of society and the state is recognized, but some restrictions are imposed. Each form of property has its own legal regulation in the constitution. Even in those states where totalitarian regime still takes place the attitude to private property has been changed as well. There are no any prohibitions on private property in those countries. On the contrary, constitutions include provisions of its existence and high use. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 33

This imperative approach to the regulation of property rights in constitutional law is signiﬁ cantly different from the legal regulation of the ownership institution in civil law. The article covers the evolution of the legal status of private property and its legal regulation under modern conditions; the original absolution of private property in the interests of social layers, winning bourgeois revolutions in XVII−XVIII centuries considering the forms of subsequent restrictions on this right. Keywords Property, private property, restrictions on private property, state ownership, public property, social function of private property, social state

TABLE OF CONTENTS

I. Introduction ...... 33 II. Features of Civil Law and Constitutional Legal Approach to the Right to Private Property ...... 35 III. Private Property Domination and Restrictions ...... 36 IV. Constitutional Law Idea of Private Property in the Major Legal Systems of the World ...... 38 A. The evolution of the Private Property Regulations in the Western World ...... 38 B. The Property in the Socialist and Islamic Legal Systems 42 V. Conclusion ...... 43 Bibliography ...... 43

I. INTRODUCTION

Over the past three centuries, the attitude to private property in people’s mind and its legal regulation has signiﬁ cantly changed: from feudal ‘rights – privileges’ and absolution of private property rights to the full protection of private property and its domination (from the end of XVII century), and then to some its limitations. At the end of XIX and the beginning of XX century (early on in Germany, then in Great

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Britain and France, later − in the United States), the fi rst elements of the new social legislation were observed. Therefore, land sizes and the power of the production owners were limited.1 Then, there were attempts to ‘socialize’ private property, to make it serve the society (for the fi rst time the social function of property was stated in the German Weimar Constitution of 1919). After World War II constitutions began to include the provisions on ‘social, economic and political justice’, in order to prevent the concentration of materialistic power in the hands of few people, which is against the interest of the majority, as well as on the distribution of property in such a way that it could serve the common good in its best way. In socialistic counties there have been a lot of changes made in the fi eld of private property regulation over the past century (since 1917). In Soviet Russia in the beginning it was the absolute conviction and full ban of private property. The Constitution of the USSR of 1936 fi xed ‘the abolition of private property’. Nowadays, in the states with still remaining totalitarian regime the private property is recognized and allowed under the State control. The State even supports its development (Art. 11 of the Constitution of China, 1982). According to traditional Islamic law, private property is regarded as the lowest form of property. According to the Quran2, private property cannot include four ‘elements’: Earth,3 Water, Air and Fire. They belong to Allah and handed by the ummah – the Muslim community. Indeed, such limitations in terms of Islamic law are implemented only partly. Land and water sources have become a private property everywhere. Precepts of the Quran take effect only in respect of air and fi re.

1 Some elements of social regulation have existed since ancient times. In ancient Rome, the owner was required to feed the slave and had no right to kill him. In Russia the decrees and laws of princes and emperors of the charity of the poor, the poor and the sick were released, beginning with the Decree of the Kyiv Prince Vladimir of 998. 2 The Quran contains of sermons of the Prophet Muhammad, Sunna- writing companions, other witnesses of the life, actions, behavior of the Prophet. These sacred books are recognized in the countries where Islamic fundamentals are officially declared as the constitution of the state. 3 Some interpretations also include natural resources of the Earth. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 35

II. FEATURES OF CIVIL LAW AND CONSTITUTIONAL LEGAL APPROACH TO THE RIGHT TO PRIVATE PROPERTY

Legal regulation of private property and its study is possible from different aspects. In civil law, ownership is regulated mainly as versatile, extensive, but still a single institution in connection with other corporeal rights. Civil codes mainly contain the provisions of acquisition, termination and the protection of property rights but no detailed social characteristics of the property, although the words of private, public and other property are used. Therefore, the study of the law of property in civil law is traditionally focused on its elements (possession, use and disposal). Civil law approach, originating from Roman law, is characterized by the scientifi c research of different sides of property rights. In terms of civil law it is diffi cult to differentiate various types of property of different social nature. It is even more diffi cult to differentiate – based on civil law approach – the federal competence and the competence of autonomous territorial units. The fi rst civil codes did not include any provisions on types of property. Nowadays it is common to recognize private and public properties. This approach is preserved in the civil law tradition of many countries, but in modern conditions social and political characteristic of different types of property and ownership is increasingly going up. As a consequence, in the constitutional law the regulation of private and public property has its own characteristics. In constitutional law we can see different content of the state ownership, group private property (joint-stock companies, partnerships) with some (minimal) elements of teamwork on the one hand, and individual private property on the other. Сollective private property researchers often consider the property of cooperative, religious and social organizations. In terms of civil law the distinctions of social nature of different kinds of ownership and private property is diffi cult to determine. However, in terms of constitutional law as a branch of public law these social differences are taken into account. After World War II the standards of socio-political nature were included in the provisions of many constitutions as specifi c parts

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(chapters, sections) with titles like «fundamentals of the constitutional order”.4 However, in the textbooks of Western countries these provisions are missing. They do not have the above mentioned classiﬁ cation of property types, and there is no any analysis of their special aspects.5

III. PRIVATE PROPERTY DOMINATION AND RESTRICTIONS

In the beginning, the constitutional regulation of private property had a certain social content, although most of this content was hidden behind the legal wording of civil codes. The recognition and protection the requirements for private property put forward the interests of broad masses. Therefore, it was one of elements of democracy, apparently not the main one. Article 17 of the Declaration of the Rights of Human and of the Citizen of 1789 declared the private property as sacred and inviolable. Fifteen years Article 544 of the Civil Code of Napoleon defi ned the right to property as a legal right to use and dispose of the things in the most absolute way. This absolution refl ected the interests of new social class. The main requirement of the Constitution regarding private property was absolute freedom and the absence of any restrictions from public authorities. As mentioned above, nowadays the situation has changed. New ideas of private property occurred in regards of its limitations. The constitutions started to recognize the legitimacy of the nationalization of private property, for public use (with the obligatory and equivalent compensation), but the principal of private property in the vast majority of states is remaining untouched. State property (Marxist researchers believe it to be the private capitalist property, most economists do not, although they do not defi ne clearly its nature) by the most optimistic

4 In the Italian Constitution of 1947 and the Spanish Constitution of 1978 there are similar chapters. In the Constitution of Chile of 1980 the first chapter is called ‘the Foundation of society’. For the first time this these chapters could be found in Soviet constitutions. 5 As example, there are a lot of recently published textbooks of British, French and African authors. AW Bradley, KD Ewing, Constitutional and Administrative Law (15th edn, 2011) 804; JÉ Gicquel, Droit constitutionnel et institutions politiques (25th edn, 2011) 806; A Katz, Staatsrecht. Grundkurs im öffentlichen Recht (Aufgabe 2010) 18, 446; J Owona, Droit constitutionnel et institutions politiques du monde contemporain. Etude comparative (2010) 730. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 37 estimates in some countries goes up to 12–14 percent in the national economy. It is worth mentioning that the ﬁ rst constitutions and constitutional documents (for example, constitutions of the United States of 1787, France of 1789 and 1791, Norway of 1814, Belgium of 1830, etc.) mentioned just property in general, or the right to private property. The state and other forms of property were not mentioned. Only from the text of the constitutions the one could understand that the arsenals, shipyards, ports and other facilities built on State funds were owned by the State (Article 1 Section 7 of Constitution of the United States). The term ‘state ownership’ in the constitutions of that time was not used (in monarchical countries, particularly in English law it was stated and now refers to the property of the Crown), but practically the distinction was taken into account.6 Subsequently, the constitutions of capitalist countries were named after other forms of ownership (public,7 state, sometimes – municipal) and established the equality of all forms of ownership. The principle of equality was an important step towards the elimination of the exceptional situation of private property. Private property was not originally included in the constitutions and did not exist in the mentality of ruling forces of socialist countries. The amendment to the Constitution of Latvia of 1922 stated that the property cannot be used to the detriment of the public interest (Art. 104). Another provision is about using it for economic and social development of the country (the Constitution of Mauritania, Peru, etc.).8 Sometimes it even says that private property should exclude exploitation of man by the man (the Constitution of Belize, 1981). The above mentioned norms could be the steps in the constitutional law to limit the private property. In people’s mind, overall assessment of private property by labor masses has a negative character. Ultimately, such property is based on the income of someone else’s labor. It is clear that every person cannot

6 The difference between the Crown and state ownership exists. 7 Public property not only of state ownership, but also ownership of other territorial entities of public law, their territorial public legal collectives of the population (subjects of the Federation, the autonomous entities, municipalinies). 8 There is not such or similar provisions in the Constitution of the Russian Federation.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 38 KUTAFIN UNIVERSITY LAW REVIEW possess a property; it’s only for the minority. The others should work for this minority; otherwise there will not be any proﬁ t, which is the main engine of private property and market. According to some foreign economic literature (even not Marxists one) private property is an anachronism and should be replaced by other types of ownership. However, private property is mostly associated with the economic competition and market, at least at the current stage of development of mankind. Different attitude to private property takes place throughout all the history. Under the banner of the elimination of the exploitation of man by man and equality private property has been legally banned and virtually abolished in the Soviet Union. However, it did not bring a long-lasting success. In modern conditions, the challenge is not about widespread elimination of private property (which is practically almost impossible), but about ﬁ nding the measures, which would allow to use this kind of property in public and social interests. This kind of constitutional provisions nowadays takes place not just in capitalist countries but in socialist as well.

IV. CONSTITUTIONAL LAW IDEA OF PRIVATE PROPERTY IN THE MAJOR LEGAL SYSTEMS OF THE WORLD

A. The evolution of the Private Property Regulations in the Western World

The logical continuation of the freedom and inviolability of private property in the capitalist countries was the idea of a free market (ﬁ rst –absolutely free), which, according to its creators had to be developed only on the basis of competitive producers. It was stated, that public authority had only to protect the existing order and did not interfere in economic relations. ‘The night watchman state’ rather than a regulator of economic relations, dominated in politics and science until the second half of the 20th century, although some interference did often take place. Only on the eve of the First World War it was pointed out on the necessity of state interference in the relations between a property and a market. It was ﬁ rst marked in the article of J.M. Keynes about a necessity for the state regulation of capitalist economy. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 39

In itself the idea of self-regulation in the society (including economic, market self-regulation) has a positive effect and is necessary to be made. In practice, the negative consequences occur because of the absolution of this idea or, on the contrary, the bans of self-regulation in the society and the nationalization of all the economy. Nowadays, freedom of market is corrected by social regulation. The ratio of these two aspects is not the same in different states but is always improving. New provisions on the state regulation of the market are being included in the constitutions of the counties with different social systems. The analysis of these provisions is introduced below. The above-mentioned ideas of private property as sacred freedom declared in the ﬁ rst constitutions nowadays have changed. As mentioned, they contain certain restrictions, and ‘holiness’ has disappeared from the new constitutional texts. This, however, does not deny the main principle of the capitalist system – the principal of private property in the economy (as well as in the politics), which is important in order to make economic system of capitalism work. The principal of private property is not proclaimed in the constitutions of capitalist countries but usually resulted from the other principals such as freedom and inviolability of property, freedom of competition and the market, the prohibition of monopolies etc. In spite of the idea of limiting state interference into the economics sphere, it has always intervened in the society life, including economic relations. It is worth mentioning that the state appeared not only to ‘moderate’ contradictions between various social forces (including a confrontation within the established legal framework) but also to carry out common interests of all citizens (e.g. to overcome the effects of natural disasters), handling some relationships in society, including the economic (taxes, roads, etc.) and social ones. In the early capitalist legal systems in Europe and North America, the State did not interfere in private property relations. There were no any legal restrictions existing for owners and entrepreneurs.9 The ﬁ rst elements of social legislation were observed at

9 Some of the limitations of natural character of course have always existed. In ancient Rome the slave owner could use him in any possible way, but was obliged feed him. It was also forbidden to kill the slaves. In ancient Jewish law, which is even more ancient, the seventh day of the week was free also for slaves (to let them pray).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 40 KUTAFIN UNIVERSITY LAW REVIEW the end of XIX-beginning of XX century. Including work hours’ provisions and trade unions formation intended to limit the freedom of the proprietor. After World War II many capitalist constitutions included a range of socio-economic and cultural human and citizens’ constitutional rights (to work, recreation, pensions, education, health, etc).10 That developed a social legislation,11 so a minimum wage limited a freedom of the owner to determine the remuneration of the employee and imposed mandatory, in some countries, charge of revenues or payroll for public service (for example, the pension and health funds). This caused another, though also indirect, impact on the principle of freedom of private property and the rights of the owner. The inviolability of private property was changed after the Second World War by constitutional recognition – for example, Article 35 of the Basic Law of the Federal Republic of Germany – of the legality of the ‘mass’ nationalization. Previously, the Constitution allowed nationalization of certain objects for the state and social needs. Nowadays it is regarded as a measure for converting a state ownership in certain industries (parts of sectors) of economy that are important for the society. For instance it was against the railroads and coal mines in the UK, electrical industry in Italy, some of the biggest banks in France, etc. Nationalization got its original form during the world economic crisis that began in 2008. States were buying the shares of the largest enterprises, affecting the economic situation, for example General Motors in the United States or some banks in Germany under the terms of the return. Also the owners had to return received sums after the stabilization of the economy. Sometimes state temporarily appointed the ofﬁ cials who were supposed to limit the rights of property owners. All these questions

10 Such rights largely appeared in capitalist constitutions under the influence of Socialist basic laws, starting with the 1918 g. Nowadays they are recognized by the International Covenant on Economic, Social and Cultural Rights of 1966, but so far the social rights as constitutional rights are denied by the Anglo-Saxon doctrine and especially by the legislature of the countries where constitutions proclaim social rights as social principals and objectives not protected by the courts. «To achieve the social objectives directly through the Court is prohibited» (part 2 Article 59 of the Constitution of Albania, 1998) 11 B Strashun, ‘Constitutional Law: Notion and Sources’ (2014) 1 1 KULawR 7. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 41 were not regulated but should be taken into account also in the modern conditions. Institution of exclusive state ownership in the widest scale was implemented for the ﬁ rst time in the USSR. Nowadays, there are still some objects of economy that belong only to the state. As a rule, they are not very signiﬁ cant ones: beaches, the sea coast, national parks, etc. Sometimes this institution includes very important objects (including all the natural resources in countries of Muslim fundamentalism and all the land in the Netherlands and Israel). The legitimacy of the restrictions on a land for compensation through agrarian reforms is recognized in constitutional law.12 Radical agrarian reforms were made in Europe and Japan after World War II. Nowadays, agrarian reforms are still in process in Asia and Latin America. The idea is to distribute the land of urban residents who do not use their land and are not engaged in agricultural production or land of excess size between the landless farmers and agricultural workers. Provisions on agrarian reforms are included even in constitutions of some countries, particularly in Latin America. Over time, especially after the Second World War, and then in light of scientific and technological revolution, the capitalist states started to actively intervene in the economic life of the society through regulatory legislation, including the state planning. State planning, occurred in the socialist countries, is now used in capitalist countries. Norms concerning the necessity of such planning are included even in the constitutions of some countries (for example, in Spain, Portugal and Brazil). To some extent, it also limits the freedom of private property. Restrictions on private property are associated with an attitude to a free market and the ban for monopolization by an owner or group of owners. The modern capitalist states, at some point, became controlled because of the denying the idea of absolute freedom of market in modern conditions. Constitutions have included provisions on a regulated market.

12 Not all the courts do so, however. In Hungary, for example, after World War II the courts en masse gave back expropriated land with the reference to the violation of the right to private property.

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B. The Property in the Socialist and Islamic Legal Systems

The idea of regulating private property arose in the mid XIX c. mainly in economic researches of Marxist streamline13. Its followers claimed that all evils in a society happen because of the existence of private property. It had to be prohibited, as it was done in Soviet Russia and then in the Soviet Union. However, self-employment in small-scale consumer services and agriculture was allowed, as well as other activities, which involved only a personal labor of the citizens and members of their families (hired labor was not permitted). This kind of property in the USSR was often characterized as a private labor ownership. Nowadays, in the countries where socialist regime still takes place, the old principles are still preserved, but the attitude to the private property has changed though. Amendments to the Chinese Constitution of 1982 adopted in 1988- 2004 legalized private farming and land rent. It is worth mentioning the provision of a ‘socialist market economy’ that was included in 1993. What’s more, in 1999 the private enterprises were described as an important component of the socialist market economy. That definitely intended to be a step on the way to the equality of all forms of ownership. The Constitution, however, still states that the public sector dominates, although other forms of ownership develop simultaneously (Art. 6). Most of Muslim countries (especially the oil-producing ones) have a particular approach to private property and other forms of ownership. Theoretically, private property in Muslim countries should not be regarded as very common form of ownership. Private ownership of natural resources (mainly oil and gas) is not allowed. All oil companies must be only in a public property. Foreign companies can operate in this sphere only for maintenance. At the same time according to the Quran, rich owners of private property shall pay 5% of their income (a special tax called ‘zakat’) to poor members of the Muslim community. Together with some other contributions it forms so-called vakuf property. In spite of the fact that private property is limited by the prohibition of riba (interest loans

13 Works of socialist utopians have appeared much earlier. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Veniamin Chirkin Right to Private Property: Constitutional Evolution 43 between the “true believers”), it still exists under other names, which can be found for example in the banks activity. In some modern Muslim countries (Egypt, Pakistan, Lebanon, Tunisia, Bangladesh, Indonesia, etc.), economic and political system of those is different from traditional Muslim states, there is a different approach to private property. However, the principles of the Quran still take place. In those countries property of aliens on Earth is permitted and foreign companies are involved in the extraction of hydrocarbons, getting their share of the proﬁ ts.

V. CONCLUSION

We have considered only the major milestones in the constitutional regulation of private property rights. However, they illustrate very well changes in the mentality of people in regards to private property. There are new approaches in constitutional law to regulate the institution of private property in order to improve its social function as well as economic and social justice in general. The legitimacy of nationalization of private property in the interests of society and the state is recognized although some restrictions take place.

Bibliography

Bradley AW, Ewing KD, Constitutional and Administrative Law (15th edn, 2011) Gicquel JÉ, Droit Constitutionnel et Institutions Politiques (25th edn, 2011) Katz A, Staatsrecht. Grundkurs im öffentlichen Recht (Aufgabe 2010) Owona J, Droit Constitutionnel et Institutions Politiques du Monde Contemporain. Etude Comparative (2010) Strashun B, ‘Constitutional Law: Notion and Sources’ (2014) 1 1 KULawR 5

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ARTICLE

NO SAFE HAVEN: DOJ CAN AND WILL SEIZE PROCEEDS OF WHOLLY FOREIGN CORRUPTION By Kathleen Hamann & David R. Courchaine (USA)

Authors Kathleen Hamann Carleton College (1993) Georgetown University Law Center (2003) Adjunct Professor of international law, American University Washington College of Law, Washington, D.C. and Partner, White & Case LLP 1 E-mail: [email protected] David R. Courchaine University of Chicago (2007) American University Washington College of Law (2010) Associate, White & Case LLP’s Global White Collar Practice Group2

1 Kathleen Hamann focuses her practiceon international and transnational government investigations and compliance matters, with substantial experience regarding enforcement of the Foreign Corrupt Practices Act (FCPA) and multijurisdictional government investigations. Ms. Hamann joined White & Case after almost two decades of federal service at the U.S. Department of Justice (DOJ) and in the U.S. diplomatic corps. While in the diplomatic corps, she was one of the negotiators of the ‘no safe haven’ initiative and worked extensively on kleptocracy issues. She was the longest-tenured prosecutor in the FCPA Unit at the DOJ at the time of her departure and also acted as international policy counsel to the Fraud Section, advising on matters such as data privacy, sovereign immunity, and international conflict of laws. 2 David R. Courchaine focuses his practice on white collar criminal defense, government investigations, corporate internal investigations, and corporate compliance matters. He represents foreign and domestic clients in fraud and anti-corruption matters involving the DOJ, the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, and other federal and state entities in multiple jurisdictions. He has experience representing multinational corporations in matters involving the FCPA, including management of complex internal investigations, as well as matters involving the federal antitrust laws. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kathleen Hamann & David R. Courchaine No Safe Haven: DOJ Can and Will Seize Proceeds of Wholly Foreign Corruption 45

Abstract A recent civil forfeiture complaint filed by the U.S. Department of Justice against properties in Louisiana owned by a Honduran national provides yet another example of the expansive jurisdiction asserted by the U.S. government under U.S. money laundering and asset forfeiture laws, and serves as a reminder to corporations and individuals abroad how easily even wholly foreign criminal conduct may come within the reach of U.S. law enforcement authorities. The complaint is based on wholly foreign bribery involving a Honduran corporation bribing a Honduran government official. The complaint was filed by the Department of Justice’s Kleptocracy Asset Recovery Initiative, which was launched in 2010 and has become increasingly active in recent years. Keywords Asset forfeiture, money laundering, bribery, kleptocracy, corruption, extraterritorial jurisdiction

TABLE OF CONTENTS

I. Introduction ...... 45 II. Civil Forfeiture Complaint ...... 46 III. Asset Forfeiture Actions in the United States ...... 47 IV. Potential Criminal Action ...... 49 V. Conclusion ...... 50 Bibliography ...... 50

I. INTRODUCTION

Nine pieces of real property in the New Orleans area purchased and owned by Honduran government ofﬁ cial Mario Roberto Zelaya Rojas (Zelaya) are proceeds of criminal activity and subject to seizure, according to a civil complaint ﬁ led in the Eastern District of Louisiana

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 46 KUTAFIN UNIVERSITY LAW REVIEW by the U.S. Department of Justice (DOJ) on January 13, 2015.3 The DOJ alleges that Zelaya purchased these properties in an attempt to hide the proceeds of an all-Honduran bribery scheme. This civil action provides yet another example of the expansive jurisdiction asserted by the U.S. government and serves as a reminder to corporations and individuals abroad how easily even wholly foreign criminal conduct may come within the reach of U.S. law enforcement authorities.

II. CIVIL FORFEITURE COMPLAINT

According to the complaint, Zelaya, a former Executive Director of the Honduran Institute of Social Security (HISS), solicited and received more than $2 million in bribes from a Honduran company, Compania de Servicios Multiples, S. de R. L. (COSE) that did business with HISS.4 In exchange for the bribes, Zelaya allegedly caused HISS to resume contract payments to COSEM, which had been suspended or delayed by HISS. The scheme was committed in violation of the Penal Code of Honduras, and Zelaya has been arrested and charged by Honduran law enforcement authorities.5 The bribes–from a Honduran company to a Honduran ofﬁ cial–did not involve any U.S. person or corporation until the time came to move the money. COSEM allegedly transferred the money from a subsidiary in Honduras to a shell company in Panama.6 From there, Zelaya instructed COSEM to transfer the funds to a title company in Louisiana in order to purchase various pieces of New Orleans real estate, some in the name of Louisiana businesses registered under the name of Zelaya’s brother, a Honduran national residing in Louisiana.7 The DOJ followed the money back to Zelaya and his various co-conspirators and now seeks forfeiture of the properties.

3 Department of Justice,US v Real Property Located App no 2:15-cv-00074 (Press Release,13 January 2015) accessed 27 March 2015. 4 ibid 3. 5 ibid 17–18. 6 ibid 38–40. 7 ibid 81–83. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kathleen Hamann & David R. Courchaine No Safe Haven: DOJ Can and Will Seize Proceeds of Wholly Foreign Corruption 47

III. ASSET FORFEITURE ACTIONS IN THE UNITED STATES

U.S. law grants the federal government the authority to institute a civil forfeiture action in federal court in order to seize assets involved in certain crimes, including money laundering offenses.8 Unlike criminal forfeiture, which serves a punitive function and applies to assets belonging to convicted offenders,9 civil forfeiture serves a remedial function designed to remove the proceeds of illicit conduct from the benefi ciary and does not require that the assets’ owner be convicted of a crime. In a press release announcing the Zelaya civil forfeiture complaint, DOJ Assistant Attorney General Leslie Caldwell issued a stern warning to non-U.S. persons engaged in criminal activity: ‘The United States is not a safe haven for the proceeds of your crimes. If you hide or invest your stolen money here, we will use all the legal tools we have to fi nd it and seize it.’10 Indeed, the DOJ’s anti-money laundering toolbox is extensive, and as refl ected in the Zelaya case, the DOJ’s jurisdiction may reach proceeds from crimes committed wholly abroad. In 2001, the USA PATRIOT Act11 amended the money laundering statutes to include in the defi nition of ‘specifi ed unlawful activity,’ ‘an offense against a foreign nation involving . . . bribery of a public offi cial, or the misappropriation, theft, or embezzlement of public funds by or for the benefi t of a public offi cial’.12 Thus, proceeds derived from wholly foreign bribery schemes may be subject to forfeiture under U.S. law if those proceeds fi nd their way to the United States.

8 18 U.S.C. § 981 (civil forfeiture statute); § 981(a)(1)(A) (subjecting to forfeiture “[a] ny property, real or personal, involved in a transaction or attempted transaction in violation of [U.S. money laundering laws], or any property traceable to such property”). 9 18 U.S.C. § 982 (criminal forfeiture statute). 10 Department of Justice, Department of Justice Seeks Recovery of Approximately $1,528,000 in Bribes Paid to a Honduran Official (Press Release, 13 January 2015) accessed 27 March 2015. 11 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub L 107- 56, 115 Stat 272 accessed 27 March 2015. 12 ibid § 320 (codified at 18 USC § 1956(c)(7)(B)(iv)).

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Action in this case was taken by the DOJ Criminal Division’s Kleptocracy Asset Recovery Initiative, which launched in 201013 and grew out of the 2003 No Safe Haven policy, a commitment by 53 jurisdictions worldwide to ‘deny safe haven to the corrupt, those who corrupt them, and their assets’.14 The Kleptocracy Initiative is part of the international community’s ongoing efforts to reduce and eliminate money laundering and corruption in all parts of the world, which have gained momentum in recent years.15 Although the Initiative has been around for some time, lately it has had more notable successes in recovering assets, including the August 2014 forfeiture of $480 million in corruption proceeds hidden by Sani Abacha16 and $30 million belonging to Teodoro Obiang.17

13 Department of Justice, US Asset Recovery Tools & Procedures: A Practical Guide for International Cooperation (Press Release, 2 May 2012) accessed 27 March 2015. The DOJ launched the Kleptocracy Initiative in 2010 by increasing the number of U.S. Department of Homeland Security Investigation (“HIS”) and Federal Bureau of Investigation (“FBI”) staff dedicated to investigating international corruption cases. 14 Department of Justice, US OECD Working Group on Bribery, Response of the United States—Questions Concerning Phase (Press Release, 3 May 2010) accessed 27 March 2015. 15 D Luban, JR O’Sullivan & DP Stewart, International and Transnational Criminal Law (2nd edn, Aspen Publishers 2014) (‘[B]ecause money laundering is a new criminal norm, the international community is constantly learning and reacting to evolving challenges—just as wrongdoers will continue to adapt to the international community’s defenses’); HV Morais, ‘Fighting International Crime and its Financing: The Importance of Following a Coherent Global Strategy Based on the Rule of Law’ (2005) 50 Vill L Rev 583 (describing international legal measures developed in the last twenty years to combat money laundering). 16 Department of Justice, US Forfeits Over $480 Million Stolen by Former Nigerian Dictator in Largest Forfeiture Ever Obtained Through a Kleptocracy Action (Press Release, 7 August 2014) accessed 27 March 2015. 17 Department of Justice, Second Vice President of Equatorial Guinea Agrees to Relinquish More than $30 Million of Assets Purchased with Corruption Proceeds (Press Release, 10 October 2014) accessed 27 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kathleen Hamann & David R. Courchaine No Safe Haven: DOJ Can and Will Seize Proceeds of Wholly Foreign Corruption 49

IV. POTENTIAL CRIMINAL ACTION

The DOJ is going after Zelaya’s properties by means of a civil forfeiture action in this case, but the DOJ potentially could pursue criminal money-laundering charges against those involved.18 The U.S. nexus in this case is fairly clear, as the proceeds of the crime were transferred to the United States and were used to buy U.S. properties, but even a more tenuous connection to the U.S. can be sufficient for the DOJ to assert jurisdiction. U.S. courts have held that the fi nancial transaction requirement for money laundering offenses is satisfi ed for a wholly foreign transaction if the defendant’s conduct affected foreign commerce or the transaction involved a foreign bank. For example, in United States v. Tarkoff,19 the court upheld the money laundering conviction of an attorney who transferred his client’s illegally obtained funds from a bank in the Caribbean to a bank in Israel. The court found jurisdiction despite the lack of a direct connection with the United States because the Israeli bank was a fi nancial institution that engaged in foreign commerce with the United States. Non-U.S. corporations and foreign nationals who engage in fi nancial transactions involving illegally obtained funds may be prosecuted for money laundering offenses, even if they have never entered the United States. For example, in United States v. Stein,20 the defendant, a non-

18 The Asset Forfeiture and Money Laundering Section (AFMLS) of the DOJ enforces the U.S. anti-money laundering statutes, of which 18 U.S.C. § 1956 and 18 U.S.C. § 1957 are most commonly applied. Section 1956 outlaws four kinds of money laundering–promotional (also called “in furtherance” money laundering), concealment, structuring, and tax evasion laundering of the proceeds generated by designated federal, state, and foreign underlying crimes (predicate offenses)–committed or attempted under one or more of three jurisdictional conditions ((1) laundering involving certain financial transactions, (2) laundering involving international transfers, and (3) stings). Section 1957 prohibits depositing or spending more than $10,000 of the proceeds from a § 1956 predicate offense. Each financial transaction is considered a separate offense and is punishable by a fine of up to $500,000 or twice the value of the property involved in the transaction, whichever is greater, and for individuals, imprisonment for up to 20 years. 19 242 F 3d 991 (11th Cir 2001). 20 Crim A No. 93-375, 1994 WL 285020 (ED La 1994).

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U.S. citizen located outside of the United States, was convicted of money laundering after he transferred by wire illegally obtained funds from a bank in New Orleans to a bank in London. The court upheld the conviction, explaining that application of the money laundering statute is not limited to defendants who are actually present in the United States. Rather, the court held that ‘the entire transaction . . . forms the offense conduct, not merely its initiation or conclusion’.21 In light of the courts’ broad interpretations of extraterritorial jurisdiction in money laundering cases, the DOJ takes the position that jurisdiction exists over a ﬁ nancial transaction, if the laundering is completed by a foreign national or non-U.S. corporation and the criminal conduct occurred at least in part in the United States–including such minimal contact as transfer through a U.S. correspondent account because the transaction is dollar denominated–even if the foreign individual or company never intended for an act to occur in the United States.22

V. CONCLUSION

The complaint in this case illustrates that U.S. authorities may eventually reach wholly foreign criminal conduct if the proceeds ever touch the United States, even if the underlying crime does not. The complaint also puts non-U.S. persons on notice that where unlawful conduct and proceeds from such conduct reach the United States–even after commission of the crime–U.S. law enforcement authorities have tools to follow the money to its ﬁ nal resting place and take it back.

Bibliography

Department of Justice, US Asset Recovery Tools & Procedures: A Practical Guide for International Cooperation (Press Release, 2 May 2012)

21 ibid 5. 22 Global Investigations: Reading the Signals 9 (2014) White & Case LLP, accessed 27 March 2015(‘Virtually every dollar denominated transaction potentially implicates U.S. commerce with other nations’). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kathleen Hamann & David R. Courchaine No Safe Haven: DOJ Can and Will Seize Proceeds of Wholly Foreign Corruption 51

accessed 27 March 2015 Department of Justice, US Forfeits Over $480 Million Stolen by Former Nigerian Dictator in Largest Forfeiture Ever Obtained Through a Kleptocracy Action (Press Release, 7 August 2014) accessed 27 March 2015 Department of Justice, Second Vice President of Equatorial Guinea Agrees to Relinquish More than $30 Million of Assets Purchased with Corruption Proceeds (Press Release, 10 October 2014) accessed 27 March 2015 Department of Justice, Department of Justice Seeks Recovery of Approximately $1,528,000 in Bribes Paid to a Honduran Ofﬁ cial (Press Release, 13 January 2015) accessed 27 March 2015 Department of Justice, US OECD Working Group on Bribery, Response of the United States—Questions Concerning Phase(Press Release, 3 May 2010) accessed 27 March 2015 Department of Justice, US v Real Property Located App no 2:15- cv-00074 (Press Release, 13 January 2015) accessed 27 March 2015 Global Investigations: Reading the Signals (2014) 9 White & Case LLP, accessed 27 March 2015 Luban D, O’Sullivan JR & Stewart DP, International and Transnational Criminal Law (2nd edn, Aspen Publishers 2014) Morais HV, ‘Fighting International Crime and its Financing: The Importance of Following a Coherent Global Strategy Based on the Rule of Law’ (2005) 50 Vill L Rev 583

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ARTICLE

RUSSIAN SPECIFICS OF COMBATING CORRUPTION By Anna Shashkova (Russia)

Author PhD (Law), Moscow State University of International Relations (MGIMO), 2001 Associate Professor of the Chair of Constitutional Law, MGIMO- University Moscow Region Bar Lawyer Honorary Consul for St. Vincent and the Grenadines E-mail: [email protected] Abstract The article analyzes direct and indirect measures for combating corruption. The author makes a research on developed countries’ experience in fi ghting against the corruption. The author takes an example of Australia, country with almost zero corruption Index. The article also focuses on comparative study of the Russian Federation with the Papua New Guinea (recently visited by the author), as two developing countries with almost the same corruption level which is very high. In terms of the history of the corruption in the Russian Federation the author studies a tradition of Byzantium: the system of ‘feedings’. The attitude of the Russian population to bribery hasn’t been changed for ages. The article points out that historical roots and commonness of corruption nowadays make the corruption fi ght in the modern conditions even more diffi cult. It has received some legislative ground recently. In summer 2013 the amendment was made that set a new defi nition: ‘non-procedural appeal to judges’. This provision is of real importance for the corruption fi ght, as the most signifi cant step in fi ghting against corruption is to prevent state bodies of power from interfering into the administration of justice. The amendments show that any access to the court in an illegitimate way and shall be disclosed to the public and punished. Concluding remarks of the article give www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Specifi cs of Combating Corruption 53

suggestions on the steps to be undertaken in the Russian Federation to combat corruption. Keywords Combating corruption, corruption counteraction, feedings, illegal income, money-laundering, corruption in Russia

TABLE OF CONTENTS

I. Developed Countries’ Experience in Fighting Corruption .....53 II. Comparison of the Russian Federation with the Independent State of Papua New Guinea in Terms of Corruption Indexes ...... 55 III. Historical Roots of Corruption in the Russian Federation ....57 IV. Development of Anti-Corruption Legislation and the Current Situation in the Russian Federation ...... 60 V. Concluding Remarks ...... 65 Bibliography ...... 66

I. DEVELOPED COUNTRIES’ EXPERIENCE IN FIGHTING CORRUPTION

World corruption has its roots in the ‘cold war’ when western countries preferred to stimulate ‘development’ of the third world countries shutting their eyes to corruption. The risk of loosing such countries if they joined the Soviet block was higher than probable future consequences of bribery and corruption. After the end of the ‘cold war’ the reasons to close eyes to bribery have passed away. From the mid-1990s western international organizations started to include the question about corruption in their agendas1. This means that with the end of the ‘cold war’ western countries criminalized bribery and money laundering which hadn’t been done before. This fact was a starting point for the Working Group of the Organization for Economic Co-operation and Development (OECD) to elaborating Anti-Bribery

1 V Tanzi, ‘Uses and Abuses of Estimates of the Underground Economy’ (1999) 109 Economic Journal 286.

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Recommendations in 1994 and the Convention on Combating Bribery of Foreign Public Offi cials in International Business Transactions in 1997. That made the countries adopted the Convention bring their legislation into line with this international act. The Convention established an open-ended monitoring mechanism to provide all-round implementation of the international obligations that countries have taken on under the Convention. The main idea of the Convention is the prohibition of the bribery by foreign offi cials and the ban on the tax deductibility of bribes to foreign public offi cials. Such countries as Australia, Germany and the Netherlands changed their legislation according to the requirements of the Convention. Australia signed the Convention on December 7, 1998 and postponed the instrument of ratifi cation until October 18, 1999. Legislation to implement the Convention was passed by the Australian Parliament and received the Royal Assent on June 17, 1999. It came into force on December 18, 1999. Australia chose to implement the Convention through amendments to the Criminal Code Act 1995 (The Australian Constitution empowers the Federal Government with criminal law power supplemental to specifi c powers it has under the Constitution. One of the specifi c powers is the external affairs power that constitutes a legal basis for the Federal Government to implement the Convention). The amendments included a codifi cation of the offence of bribing foreign public offi cials. Bribery of a foreign public offi cial is set out in section 70.2 of the amendments to the Criminal Code Act as follows: (1) A person is considered guilty if: (a) The person: (i) Provides a benefi t for another person; or (ii) Causes a benefi t to be provided for another person; or (iii) Offers to provide, or promises to provide, a benefi t for another person; or (iv) Causes an offer or a promise to provide a benefi t, plus the benefi t is not legitimately due to the other person, plus the fi rst-mentioned person does so with the intention of infl uencing a foreign public offi cial (who can be the other person) in the exercise of the offi cial’s duties as a foreign public offi cial in order to: (i) obtain or retain business; or www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Specifi cs of Combating Corruption 55

(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the fi rst-mentioned person). Penalty: Imprisonment for 10 years. Australian legislation criminalized legal entities for corruption as well. Article 2 of the Convention requires each Party to ‘take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public offi cial’. The Australian authorities explain that the term ‘body corporate’ is commonly used in Australian statutes but is rarely defi ned. It is specifi ed in Butterworths Australian Legal Dictionary (Ed. Dr. Peter E Nygh and Peter Butt (1977)) as ‘an artifi cial legal entity having separate legal personality’ including “bodies created by common law (such as a corporation sole or corporation aggregate), by statute (such as the Australian Securities Commission) and by registration pursuant to statute (such as a company, building society, credit union, trade union or unincorporated union)’. Although there has not been much case law produced on this issue, the Australian authorities are certain that the term covers all companies including those that are state-owned or state-controlled. The Australian example shows a real effort of not only signing the international document, but combating corruption as well. The Russian Federation represents a different example and different measures are required to combat corruption in this country.

II. COMPARISON OF THE RUSSIAN FEDERATION WITH THE INDEPENDENT STATE OF PAPUA NEW GUINEA IN TERMS OF CORRUPTION INDEXES Russia received low marks in a World Bank report released in September 2006. The report ranked Russia 151st out of 208 countries according to the quality of regulatory bodies, the rule of law and control over corruption. Ahead of Russia was Swaziland (150), while Niger (152) was just behind. The report said that Nicaragua and East Timor showed a similar ability to control corruption as Russia. The corruption market in Russia is considered to be 240 billion USD.2

2 AV Shashkova, Financial & Legal Aspects of Doing Business in Russia (Aspect Press 2011).

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A comparative analysis in practical application on international norms concerning corruption between the Russian Federation and Papua New Giunea is of a particular interest. In 2012 the country where around 90% of the money is involved in corruption schemes was ranked by the International Finance Corporation of the World bank higher that the Russian Federation: Papua New Guinea got 104 place and the Russian Federation – 112.3 The report of the World Bank of the year 2014 shows that Russia is in a low rating of corruption while Papua New Guinea is in a high corruption risk.4 The survey the author undertook visiting Papua New Guinea’s state bodies and business entities showed that no business ever started without bribes there.5 Having enormous natural recourses and a very good climate, the population lives without fresh water, food, sewerage and good educational facilities.6 At the same time the survey on Papua New Guinea and its legal and political system on the Internet sites shows that it is a decent country which conforms to the international standards: in 2012 the twenty years corruption strategy was adopted in the country where acts of cannibalism still take place.7 The ranking in the Transparency International Corruption Perceptions Index 2012 puts Papua New Guinea to the 150th place out of 176 countries, which is lower than that of the Russian Federation (127). However, by the year 2013 Russia has been at the same place while Papua New Guinea is slightly going up to the 144th place out of 177 countries.8

3 ‘Economy Rankings. Doing Business. Measuring Business Regulations’ (International Finance Corporation. The World Bank) accessed 20 March 2015. 4 ‘Economy Rankings. Doing Business. Measuring Business Regulations’ (International Finance Corporation. The World Bank) accessed 20 March 2015. 5 ‘Firm faces bribery allegations’ accessed 20 March 2015. 6 Frank O’Toole, ‘Bribery and Corruption Risk: The Unseen Cost’. accessed 20 March 2015. 7 Y Nosovsky, ‘Roots of Cannibalism in Papua New Guinea remain mystery to everybody’ (Pravda.ru., 24 June 2003) accessed 20 March 2015. 8 Corruption index 2012 from Transparency International: find out how countries compare’ accessed 20 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Speciﬁ cs of Combating Corruption 57

Both countries’ legislation more or less corresponds to the international standards but the question is: if the target is to conform to a standard or to stop the corruption without infringement of constitutional rights? Most of the laws in the Russian Federation were adopted a long time ago. What is happening now is adopting of new laws and other pieces of legislation that makes the corruption even more serious problem in Russia. Companies, receiving orders for making law projects, pay kickbacks to offi cials who give them such orders. Budget money is spent on anti-corruption fi ght, which simply makes corruption more expensive. One can hardly fi nd an area in the Russian Federation which would be out of corruption. It is a system, a way of life: instead of building new roads, paying decent pensions to veterans of the World War II, money is withdrawn to other areas. Independent experts estimate the corruption in Russia consumes around 25 % of the GDP. According to the World Bank report this number is 48 %.9 In terms in question it is worth mentioning that in 1975 Papua New Guinea gained independence from Australia and is now part of the Commonwealth of Nations. Before 1975 the administration of the country was staffed almost exclusively with Australian civil servants. But after Australians were immediately replaced by locals without giving them an adequate training. Therefore, growing corruption became a problem. Main reasons for corruption appeared as traditional practices such as gift-giving. In this context reasons for corruption in Papua and in Russia are similar, though historical roots are different.

III. HISTORICAL ROOTS OF CORRUPTION IN THE RUSSIAN FEDERATION

The attitude of Russian population to bribery hasn’t been changed for ages. To combat the corruption it is very important to base on the personal understanding of the destructive force of the corruption. Of course things cannot be changed just in one minute or even a year. However, the general understanding of negative consequences of further intensification of corruption promotes resistance to corruption.

9 ‘Corruption in Russia as a Business’ accessed 20 March 2015.

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Historical roots and commonness of corruption nowadays make the fight more difficult. Centuries ago Russia took a tradition from Byzantium: appealing to officials you had to bring something. Thus the system of such ‘feedings’ was formed by the XIV century. However, that simple and harmless feeding was quite fast transferred into bribery and extortion. The situation was so bad that in 1397 Pskov Judicial Charter directly prohibited acceptance of secret offerings by public officials (Article 4). During the XV–XVI centuries the system of ‘feedings’ was official, but the maximum limit of ‘feeding’ was set. The system was so much rooted that even capital punishment – introduced by Ivan the Terrible – for ‘excessive bribery’ did not stop it. In order to fi ght bribery and extortion Peter the Great set regular payment to public offi cials. But in practice they were not paid regularly, bureaucracy was growing up and bribery continued. Ekaterina II paid offi cials’ salary regularly, but in paper money, which had less value than metal money. In the middle of the XIX century situation was ridiculous: on the one hand, offi cials of all levels were taking bribes, on the other – they were in constant fear of exposure. Centuries of serfdom made customs more important than the law. And bribery was a long living custom… During the Soviet era of Lenin and Stalin existence of corruption was not recognized on offi cial level, though the most signifi cant part of offi cials’ salary was hidden and paid in envelops. In the beginning of 1990s legislative and administrative models were ‘soviet’ in the Russian Federation. It means that they didn’t correspond to economic realities, where business was developing. In such contradictory situation corruption was used to stimulate a business during the transition period of economy. It was of real help to transform the country to the market economy. Here was the bomb undermining the whole bureaucracy. An aspiration to resolve everything fast and uncivilized converted corruption into one of the main and independent institutes, which was functioning on its own behalf and for itself. Each subsequent administrative reform created more and more excessive functions but did not reduce them that made a corruption only grow up. In the beginning there was an opinion that corruption was necessary to survive as a ‘lesser evil’. Later it was understood that such ‘corruption tax’ was working only for itself, depriving business from profi t, killing fair www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Specifi cs of Combating Corruption 59 competition and perverting bureaucrats. Nowadays Russia is associated with corruption in the eyes of rest of the world. The most recent scandals concerned a state-controlled military contractor, Oboronservice. Russian investigators claimed that it sold assets to commercial fi rms at a loss was nearly 3 billion roubles ($95 million; £59 million).10 Oboronservice’s activities include military aircrafts and arms as well as constructing military facilities. And even if this scandal was one of the biggest it was not the only one. Corruption is a factor which draws back not only economics, but political development of the country as well. In private sector of economy, corruption makes business more difficult to carry out. In the state sector of economy the money from socially important projects, such as education and medicine goes to the sectors of economy that are more beneficial for official because of bribes and kickbacks. Sociological surveys show that only 40 percent of the population in Russia thinks that life would be easier without corruption.11 The survey also shows that Russians are not extremely concerned about combating corruption. Nowadays, an implementation of international law on the territory of the Russian Federation can be seen. However, there are certain particularities in any country, which no international law can consider. On the one hand, unification of legislation all over the world makes the control easier. However, it shall be admitted that such unification creates also certain problems. If historically in Europe state bodies tried to serve people and the population respected and obeyed the existing laws, in Russia, as it was shown above, bribery has always existed on the level of state bodies and the population tried to avoid laws. Let us compare two sayings:

10 S Rosenberg, ‘Russian Defense Minister Anatoly Serdyukov fired by Putin’ (BBC News Europe, 6 November 2012) < http://www.bbc.co.uk/news/world- europe-20218216> accessed 20 March 2015. 11 I Eliseeva, ‘What Russians Think About Corruption’ (Higher School of Economics, 22 October 2008) accessed 20 March 2015.

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‘Dura lex sed lex’ [Latin] versus ‘Severity of Russian laws is mitigated by optionality of their execution’ [Saltykov-Shchedrin М.Е. – Russian satirist of 19th Century] or ‘Severity of Russian laws is tempered by their non-execution’ [Vyazemsky P.А. – Russian poet & historic of 19th Century]. These historical roots shall also be taken into account.

IV. DEVELOPMENT OF ANTI-CORRUPTION LEGISLATION AND THE CURRENT SITUATION IN THE RUSSIAN FEDERATION

Nowadays corruption fi ght has got some legislative ground in Russia. The Federal Law on Combating Corruption of 2008 was a fl agman here.12 Of course plenty of documents of this kind were adopted before. For example in 1992 the President of the Russian Federation Boris Yeltsin signed a Decree on fi ghting corruption in the state bodies.13 However, no practical execution and implementation of such documents has ever taken place. The importance of the Law was in giving basic concepts such as corruption and corruption counteraction: ● Сorruption: (i) Abuse of offi cial position, giving bribe, acceptance of bribe, abuse of power, commercial bribery or other illegal use by a physical person of his/her offi cial position in defi ance of the legitimate interests of the society and the State for the purpose of profi ting in the form of money, valuables, other property or services of material nature, other rights of property for oneself or for third parties, or illegal provision of such benefi ts to the mentioned person by other physical persons; (ii) Commitment of acts, specifi ed in the subparagraph ‘a’ of the present paragraph, on behalf of or in the interests of a legal entity; ● Corruption counteraction – the activity of federal bodies of state power, bodies of state power of subjects of the Russian Federation, local

12 The Federal Law on combating corruption [2008] 273-FZ. 13 The Decree of the President of the Russian Federation on fighting corruption in the state bodies [1992] 361. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Specifi cs of Combating Corruption 61 authorities, institutions of the civil society, organizations and physical persons within their powers: (i) To prevent corruption, including identifi cation and subsequent elimination of corruption motives (prevention of corruption); (ii) To identify, prevent, terminate, disclose and investigate corruption offences (corruption fi ghting); (iii) To minimize and (or) eliminate the consequences of corruption offences. Article 2 of the Federal Law gives legal basis for corruption counteraction and provides remedies against the corruption. The Law was amended on January 1, 2013 to introduce requirements for companies to implement anti-corruption measures.14 These measures included but not limited with: (i) Appointing a specifi c department or an offi cial to be responsible for preventing corruption and related offences; (ii) Co-operating with enforcement authorities; (iii) Developing and implementing standards and procedures for ethical business practices; (iv) Establishing an ethical code of conduct for personnel; (v) Preventing and resolving confl icts of interest, and (vi) Preventing the fi ling of false or off-the-record reports and the use of forged documents. In 2010 the National Strategy on Combating Corruption was adopted.15 In 2012 one more National Plan on Combating Corruption was adopted for years 2012-2013.16 The document set a constantly improved and consistently implemented system of measures of organizational,

14 Timur Aitkulov and Olga Semushina ‘Russia Enacts New Law on Anti- Corruption’ accessed 20 March 2015. 15 The Decree of the President of the Russian Federation on central bodies of the Russian Federation responsible for implementation of the provisions of the UN Convention against corruption, in Relation to the Mutual Legal Assistance [2008] 1799. The Decree of the President of the Russian Federation on the national plan to counter corruption for the years 2014 – 2015” [2014] 226. 16 The Decree of the President of the Russian Federation on national plan on combating corruption and amendments to certain acts of the President of the Russian Federation concerning corruption [2012] 297.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 62 KUTAFIN UNIVERSITY LAW REVIEW economical and legal character. This strategy was based on reforms, which had already taken place in different areas of public relations, mostly administrative. The National Plan on Combating Corruption included development of the legislative base concerning combating corruption in federal and municipal levels. Civil servants of all levels were to correspond to higher standards in their professional behavior. The analysis of the Russian legislation and ratifi ed international treaties makes us admit that legal and organizational base for combating corruption is being formed in the Russian Federation: relevant laws have been adopted, the Council on Combating Corruption is being formed,17 civil servants’ income and spending became more transparent,18 special bodies of power are being formed in order to implement the United Nations’ (UN) Convention against Corruption.19 What’s more, the Federal Law on combating corruption also applies to certain categories of employees who are not civil servants.20 They should include citizens of the Russian Federation working for the Pension Fund, Social Insurance Fund and the Medical Fund. However if we literally interpret the text the above-mentioned limitations, bans and obligations contained in the Federal Law on combating corruption concern only Russian citizens but not foreigners. Of course such provisions of the named piece of legislation are subject to amendment. However Russia was the last country ratifi ed the above-named OECD Convention on combating bribery of foreign public offi cials in international business transactions. Russia joined the Convention that was adopted in 1999, only on February 1, 2012. During negotiation rounds the principal position of the Russian Federation was to introduce criminal liability to public offi cials and administrative liability – to legal entities.

17 The Decree of the President of the Russian Federation on central bodies of power of the Russian Federation responsible for implementation of provisions of the UN Convention against corruption, in relation to international cooperation [2008] 1800. 18 The National Strategy on Combating Corruption approved by the Decree of the President of the Russian Federation on National Strategy on Combating Corruption and National Plan on Combating Corruption for 2010-2011 [2010] 460. 19 The Resolution of the Supreme Court of the Russian Federation on court practice on bribery cases and other corruption crimes [2013] 24. 20 ibid (n 11). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Speciﬁ cs of Combating Corruption 63

In 2013 some further real steps to fi ght corruption were made. One of the most debatable issues is an issue of criminalization of offering and promising a bribe. The Russian Criminal Code does not currently contain punishment for this action. At the same time the Supreme Court of the Russian Federation21 defi nes offering or promising of a bribe as a preparation for crime, which has not been fi nished yet. The author thinks appropriate to stress that the above Resolution of the Supreme Court was adopted in July 2013 in execution by the Russian Federation of international acts against corruption, and does not constitute a real instrument on criminalization of offering and promising of a bribe. At the same time in case of criminalization of only intention to give a bribe there is a risk of abuses from a part of law-enforcement bodies. In summer 2013 Russia also amended the Federal Law on the status of judges in the Russian Federation having set a defi nition of ‘non- procedural appeal to judges’.22 Any interference in the Judge’s work concerning the administration of justice shall be prosecuted under the law. Non-procedural appeals to the Judge concerning the case in their administration, to the Chairman of the Court, to its Deputies, to the Head of the Court Composition or to the Head of the Court Colleague shall not be admitted. Non-procedural appeal means any address in written or oral form to the Judge concerning the case in his administration, to the Chairman of the Court, to its Deputies, to the Head of the Court Composition or to the Head of the Court Colleague by any person, which is not a party to the case, such as a state body, a municipal body, other body of power, organization or offi cial or a citizen of the Russian Federation (in cases not provided by law) or an appeal by the parties to the case in the form, not provided by the procedural legislation. Information on non-procedural appeals to the Judge concerning the case in his administration, to the Chairman of the Court, to its Deputies, to

21 The Order of the Government of the Russian Federation on extension to certain categories of citizens of limitations, bans and obligations set by the Federal Law on combating corruption and other Federal Laws in order to fight against corruption [2013] 568. 22 The Federal Law on amendment of certain legislative acts of the Russian Federation [2013] 166-FZ.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 64 KUTAFIN UNIVERSITY LAW REVIEW the Head of the Court Composition or to the Head of the Court Colleague on the cases in administration of the court, shall be subject to disclosure and brining to notice of the parties to the case via publication on the court’s website on the Information and Telecommunications Network ‘Internet’. The procedure of posting the information on non-procedural appeals on the ‘Internet’ shall be set by the Supreme Court of the Russian Federation, by the Supreme Commercial Court of the Russian Federation, by the Court Department under the Supreme Court of the Russian Federation.23 The President Vladimir Putin approved the National Plan to Counter Corruption for 2014–2015. This is the fourth national plan against corruption. In a new National Plan for 2014-2015 President Putin has approved more anti- corruption measures. It seems that a considerable number of the measures have to be the continuation of measures in previous plans. In the light of recent event the Act also notes that anti- corruption measures should be extended to Crimea and Sevastopol.24 This provision is of real importance to fi ght corruption, as the most signifi cant step to prevent state bodies’ interfering into the administration of justice. The amendments show that any access to the court in an illegitimate way shall be disclosed to the public and punished. The obligation of the judge in this case is to report to the head of the corresponding court with the aim of further disclosure of such act of interference into judgment via the Internet. That step means that the doctrine of separation of powers shall work in the Russian Federation on practical and most important level. Being a lawyer the author has certain remarks, however: • First of all, the procedure of disclosing and posting these non- procedural appeals is not elaborated yet. The deadline is not set. • Secondly, in the amendment there is a reference only to appeals in cases not provided by the legislation of the Russian Federation. The legislation of the Russian Federation is very broad: fi nding

23 The Law of the Russian Federation on the Status of Judges of the Russian Federation [1992] 3132-1. 24 accessed 20 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Speciﬁ cs of Combating Corruption 65

some excuse ‘provided in the legislation’ is a slightly technical problem. • Thirdly, not a word is mentioned about such non-procedural appeals to judges from a head of a corresponding court… • Finally, it is directly stated that such information ‘shall not constitute a ground for initiating criminal procedures and sentences’ [29, Art. 8.1.]. That means a declarative character of the information without taking further actions for punishing them. This step is very important to make this important provision on transparency of Russian judicial system effective.

V. CONCLUDING REMARKS

Summarizing the problem of corruption in the Russian Federation the author suggests the following steps to be taken in the Russian Federation to combat corruption: 1. The legislation of the Russian Federation shall correspond to the international standards and requirements, at the same time taking in consideration particularities of Russia. Russia is the country with a particular story. However, political, economical and legislative processes in Russia are similar to those of other countries, which have already passed through the stage the Russian Federation is presently at: foreign experience shall be studied and taken into account. As anti-corruption expertise of normative acts was a fail from the very beginning,25 it is reasonable to stop this process and focus on more efﬁ cient ones. 2. Since corruption is a social problem, relevant methods shall be used while fighting it. The history of Russia, stressing the destructive

25 Shashkova A.V. Neobkhodimost’ provedeniya antikorruptsionnoy ekspertizy normativno-pravovykh aktov kak element bor’by s nezakonnoy legalizatsiey (otmyvaniem) dokhodov, poluchennykh prestupnym putem // Ekspertiza normativnykh pravovykh aktov i ikh proektov na predmet korruptsiogennosti: soderzhanie, znachenie, metodika provedeniya: sbornik statey. 2010. S. 156– 163 (A Shashkova, ‘The Necessity of the Anti-Corruption Expertise of the Legal and Regulatory Acts as a Part of Anti Money-Laundering Fight’ in Expertise of Normative Legal Acts and their Drafts on the Subject of Corruption: Content, Importance and Techniques: a Collection of Articles (Academy of the General Prosecutor’s Office, 2010)).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 66 KUTAFIN UNIVERSITY LAW REVIEW character of corruption, shall be taught at school for the young generations. There is a false stereotype that only officials and state bodies make the corruption work. In reality corruption is fed by ordinary people. Extortion is only part of the corruption and not the major one. From economic point of view it has been already proved and it shall be widely shown that corruption makes the final product more expensive for public. 3. Business itself makes the corruption work. That is why IKEA or Siemens scandals took place.26 It should be also understood that the idea of business is not only to make fast money, but to build long- term relations. A special legislation concerning corporate corruption is required. Since many investors in the Russian Federation nowadays are foreign ones it gives more credit that they will follow Russian laws. 4. Public sector is the key player in corruption matters. That means that the greatest effort shall be undertaken in this area to fi ght corruption. Like in any business management model not only threat of punishment shall be used. In private companies for example the best employees receive additional incentives and encouragement. The state shall implement the same working instruments. 5. Fundamental accountability and transparency are defi nitely real instruments to fi ght corruption. Electronic Government which is being implemented in the Russian Federation should be of a real help: it makes interaction between the state bodies and the population more effective and transparent.

Bibliography

Aitkulov T and Semushina O, ‘Russia Enacts New Law on Anti- Corruption’ accessed 20 March 2015. Goldman M, ‘Political Graft: The Russian Way’ (2005) 104 684 Current History

26 M Goldman, ‘Political Graft: The Russian way’ (2005) 104 684 Current History 313. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Anna Shashkova Russian Speciﬁ cs of Combating Corruption 67

Eliseeva I, ‘What Russians Think about Corruption’ (Higher School of Economics, 22 October 2008) accessed 20 March 2015 Nosovsky Y, ‘Roots of Cannibalism in Papua New Giunea Remain Mystery to All’ (Pravda.ru, 24 June 2003) accessed 20 March 2015 O’ Toole F, ‘Bribery and Corruption Risk: The Unseen Cost’. accessed 20 March 2015. Rosenberg S, ‘Russian Defense Minister Anatoly Serdyukov Fired by Putin’ (BBC News Europe, 6 November 2012) accessed 20 March 2015 Shashkova A.V. Neobkhodimost’ provedeniya antikorruptsionnoy ekspertizy normativno-pravovykh aktov kak element bor’by s nezakonnoy legalizatsiey (otmyvaniem) dokhodov, poluchennykh prestupnym putem // Ekspertiza normativnykh pravovykh aktov i ikh proektov na predmet korruptsiogennosti: soderzhanie, znachenie, metodika provedeniya: sbornik statey. 2010. S. 156-163 (A Shashkova, ‘The Necessity of the Anti-Corruption Expertise of the Legal and Regulatory Acts as a Part of Anti Money-Laundering Fight’ in Expertise of Normative Legal Acts and their Drafts on the Subject of Corruption: Content, Importance and Techniques: a Collection of Articles (Academy of the General Prosecutor’s Ofﬁ ce, 2010)) Shashkova AV, Financial & Legal Aspects of Doing Business in Russia (Aspect Press 2011) Tanzi V, ‘Uses and Abuses of Estimates of the Underground Economy’ (1999) 109 Economic Journal

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ARTICLE

LEGAL RELATIONS ON THE INTERNET By Abdudzhabar Abdujalilov (Tajikistan)

Author PhD (Law), Tajik National University, 2009 Head of Department of Private Law, Institute of Philosophy, Political Science and Law, Academy of Sciences of the Republic of Tajikistan E-mail: [email protected] Abstract The article analyzes one of the constituent elements of legal relations under civil law within the virtual space of the Internet – a legal subject under civil law. Although the concept of a legal subject under civil law has been suffi ciently elaborated, an analysis of this institution with reference to the Internet will enable the features of its legal regulation to be set out. The main legal challenge associated with the concept of a legal subject under civil law on the Internet is fact that it cannot be personifi ed within virtual space. Relations in the virtual space of the Internet are based on civil law contracts incorporating features of the virtual space created by the Internet. Within this context, the relationship between legal subjects under civil law within the virtual space of the Internet is not regulated specifi cally by legal norms, but by special agreements between these subjects. By virtue of this convention, the parties which establish legal relations on the Internet initially follow certain contractual settings based on the assumption that the counterparty entering into legal relations within virtual space is fi rst and foremost a person with full legal capacity. Secondly, the subjects must act with the conscious intention to frame their actions in legal terms (inter alia by contractual agreement) even though no visible document is drawn up, as is required for relations between persons in the real world (not on the Internet). Secondly, space. The conventional www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 69

nature of the relationship within virtual space extends to processes applicable to contractual relations between the parties. It can be stated that the rules regulating these relationships are quasi normative in nature as there are no legal rules establishing how to identify a legal subject and how to determine jurisdiction on the Internet. For these reasons, one of the fundamental principles governing relations within virtual space can be called the principle of the presumption of equality and legal personality of the parties involved. This principle is formulated as follows: within virtual space, parties entering into relations may be assumed to have equal status and legal capacity with regard to real and personal beneﬁ ts, unless directly asserted or proven otherwise. Keywords Internet, Internet Law, modern law, law and modern technologies, party to a legal relationship, presumption, legal personality, convention

TABLE OF CONTENTS

I. Introduction ...... 69 II. The classical deﬁ nition of a legal subject under civil law ...... 70 III. The legal status of a party to legal relations on the Internet 72 A. Introduction ...... 72 B. Presumptions ...... 74 C. Conventional basis ...... 77 IV. Legal persons are parties to legal relations on the Internet ..78 Bibliography ...... 80

I. INTRODUCTION

Attempts to determine the legally signiﬁ cant constituent elements of the subject of law date back as far as Roman law. Under Roman law, a subject of law (persona) could be a person eligible to enjoy civil rights and be subject to obligations. In Rome, these could be either individuals or organizations, the former referred to as natural persons and the latter

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 70 KUTAFIN UNIVERSITY LAW REVIEW as legal entities.1 Thus the term ‘persona’ comprised the legally signiﬁ cant characteristic of the party to the legal relationship. The purpose of this article is to study the status of the legal subject within the virtual space of the Internet.

II. THE CLASSICAL DEFINITION OF A LEGAL SUBJECT UNDER CIVIL LAW

The rights that individualize the legal law as a person traditionally include the right to one’s name. Article 19 of the Civil Code of the Russian Federation (Art. 20 of the RF Civil Code) provides that a citizen acquires and exercises rights and duties over his name, including the surname and first name. Both the name given to a citizen at birth as well as any changes in name must be registered, i.e. a person becomes a citizen from the time his or her name is registered. The citizen’s name characterizes a person as a legal subject under civil law, as a holder of civil rights and obligations, regardless of his physical and moral qualities.2 In this regard V.D. Ruzanova notes that: ‘In order to implement and protect the rights of a person and to make civil relations sustainable, he or she must be individualized as a subject under civil law. The name and place of residence are essential means of individualizing an individual citizen.’3 Yu. S. Gambarov also mentioned the importance of a legal subject’s right to residence for his or her individualization: ‘The concept of residence (domicilium) entails that every person is at all times recognized to be present at the place determined by a particular address or other legal characteristics that enable the place of residence

1 Kharitonov E.O. Osnovy rimskogo chastnogo prava / Rostov na Donu: Feniks, 1999. S. 113 (EO Kharitonov, Fundamentals of Roman Private Law (Phoenix 1999) 113). 2 Andreev V.K. Sushchestvo nematerial’nykh blag i ikh zashchita // Zhurnal rossiiskogo prava. 2014. № 3. S. 27-33. (VK Andreev, ‘Merits of Intangible Benefits and their Protection’ (2014) 3 Journal of Russian Law 27). 3 Grazhdanskoe pravo. Chast’ 3. Uchebnik dlya vyzov v trekh chastyakh. Chast’ pervaya / Pod red. V.P. Kamyshanskogo, N.M. Korshunova, V.I. Ivanova. M.: Eksmo, 2009. S.75 (Civil law.Textbook.In three Parts. Part One (VP Kamyshanskiy, NM Korshunov, VI Ivanov eds, Eksmo 2009) 75). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 71 to be identified. It acts above all as a basis for establishing jurisdiction in civil cases involving litigious proceedings or actions seeking judicial relief. It determines the location at which acts relating to civil status and many other public acts are to be executed.’4 The next feature of a subject under civil law is age. D.I. Meyer referred to the criterion of age as a prerequisite for classification as a full-fledged subject of law: ‘The influence of age on the rights of an individual is very natural: whilst the individual is equally capable of holding rights all the times from birth until death, the exercise of the right involves the ability and will to act under civil law: the exercise of the legal right entails a legal action expressing the person’s intention to commit the acts; this ability can only be achieved if the person’s age is known. The ability to conclude acts under civil law commences upon reaching the age of majority.’5 G.F. Shershenevich also drew attention to the criterion of the age of legal subject under civil law: ‘a person does not achieve physical and mental maturity soon after birth, and this must be taken into account by the law. Therefore, a method for determining the maturity and ability to conclude legal transactions is generally accepted – it is a certain age, with which the assumption of the ensuing maturity is associated.’6 S.I. Ushakov points to two main characteristics of a legal entity: First, it is a person, a member of the public collectivity (individuals, organizations), which by its characteristics may actually be vested with individual legal rights and obligations. In order to do so, it must possess certain characteristics associated with freedom of will of every person which include: a) external isolation, b) personification; and c) the ability to develop, articulate and implement a personalized will.

4 GambarovYu.S. Grazhdanskoye pravo. Obshchaya chast’ / Pod red. V.A. Tomsinova. M.: Zertsalo, 2003. S.578 (YuS Gambarov, Civil Law. The General Part (VA Tomsinoved, Zertsalo 2003) 578). 5 Meyer D.I. Russkoe grazhdanskoe pravo. Obshchaya chast’/ Pod red. A. Vitsina. Kazan’, tom 2, 1859. S. 27,28 (DI Meyer, Russian Civil Law. The General Part, vol 2 (A Vistined, Kazan’ 1859) 27). 6 Shershenevich G.F. Uchebnik russkogo grazhdanskogo prava / M.: Statut, tom 2, 2005. S. 121 (GF Shershenevich, Textbook of Russian civil law, vol 2 (Statute 2005) 121).

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Secondly such a person is actually able to act as a party to a legal relationship and has acquired the status of a legal subject by virtue of legal norms.7

III. THE LEGAL STATUS OF A PARTY TO LEGAL RELATIONS ON THE INTERNET A. Introduction

In the field of new media, citizens face a conflict between the democratic function performed by digital communications and the commercial constraints imposed by its services. Networked society is witnessing a shift in communicative power away from the traditional information chain.8 The Internet is also perceived as a fundamental instrument for guaranteeing effective freedom of expression,9 whilst also enriching individual freedom of expression in a technological sense.10 The Internet is the most widely utilized digital communication tool used to disseminate information.11 The informational paradigm of the Internet defines the legal status of a legal relationship through the prism of its informational status. This conclusion inevitably follows from the thesis that the principal subject within the information sphere is the State in general, and public authorities and local governments more specifically, which are entitled to authorize or restrict access to information. Civil law relations on the Internet rely on other principles of law, and for this reason we consider citizens (individuals) and legal persons as the original paradigm for the concept of the subject of legal

7 Ushakov S.I. Pravootnosheniya: teoretiko-pravovoy i strukturno-funktsional’nyy analiz / M.: 2013. S. 19 (SI Ushakov, Legal Relations: Theoretical and Legal, Structural and Functional Analysis (Moscow 2013) 19). 8 M Castells, The Internet Galaxy Reflections on the Internet, Business and Society (Oxford University Press 2001). 9 V Zeno-Zencovich, Freedom of Expression: a Critical and Comparative Analysis (Sir Basil Maxkesinis& Dr Jörg Fedtkeeds, 2008) 99. 10 R Deibert& R Rohozinski, ‘Good for Liberty, Bad for Security? Global Civil Society and the Securitization of the Internet’ in Ronald Deibert (ed), Access Denied: the Practice and Policy of Global Internet Filtering (2008) 123. 11 N Lucchi, ‘Internet Content Governance & Human Rights’ (2014) 16 (4) Vanderbilt Journal of Entertainment and Technology Law 809. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 73 relations on the Internet. There is a growing trend among civil liberties groups, human-rights activists and legal scholars to argue that “Internet access has become so essential to participation in society...that it should be seen as a right, a basic prerogative of all citizens.12 As mentioned above, a characteristic feature of the legal subject under civil law within the virtual space of the Internet, as well also as within physical space, starts with the defi nition of its legal personality – legal capacity, ability to act, name, age, place of residence – or in a nutshell its personifi cation. Moreover, it is the basic legal diffi culties associated with the legal subject under civil law on the Internet which are precisely at issue. It is only the technical identifi cation of computers and servers, but not the users themselves as specifi c individuals, which is usually done in the information and communication space. The lack of information concerning the location and identity of individuals allows them to remain anonymous, resulting in a situation in which none of the parties can be identifi ed.13 In fact, according to V.O. Kalyatin, the technical features of the organization and functioning of the Internet require a special kind of identifi cation to be allocated to each computer connected to the Internet. This identifi cation is achieved by allocating a certain unique protocol address (IP-address) comprised of a digital sequence to the Internet user’s computer. At this level, the IP-address acts as something resembling a person’s postal address, enabling relevant information to be forwarded to a particular person.14 V.K. Stepanov expresses even more clearly the thesis of V.O. Kalyatin regarding the identifi cation of the Internet user’s PC: ‘The Internet as a whole, and in particular the World Wide Web, has a coherent addressing system which provides accurate identifi cation

12 AA Gillespie, ‘Restricting Access to the Internet by Sex Offenders’ (2011) 19 INT’L JL & INFO TECH 165 (discussing whether access to the Internet is a human right). 13 Tarasov M. Nekotorye aspect identifikatsii grazhdanina kak uchastnika grazhdansko-pravovykh otnosheniy v informatsionno – kommunikatsionnykh setyakh // Khozyaistvo i pravo. 2014. № 5. S. 113 (M Tarasov, ‘Some Aspects of the Identification of the Citizen as a Member of Civil Relations in Information and Communication Networks’ (2014) 5 Economy and Law 113). 14 Kalyatin V.O. Intellektual’naya sobstvennost’ (Iskluchitel’nye prava): Ucheb. Dlya vyzov / Vstup. st. V.A. Dozortseva. M.: Norma – Infra-m, 2000. S. 377 (VO Kalyatin, Intellectual property (exclusive rights) (Norm – Infra-m 2000) 377).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 74 KUTAFIN UNIVERSITY LAW REVIEW for each part of the network node by assigning to it the original address with a numerical value. An example of this code, called the IP-address, is 195.218.218.38, which enables all parameters to be identifi ed starting from the country, through to the personal computer of each user.’15 However if, according to V.O. Kalyatin and V.K. Stepanov, it is still possible to identify any computer online using its IP-address, there is not yet any technique for identifying the person using the computer. Due to the current vacuum within the legal regulation of the Internet and its unique nature, until now those concluding civil relations have unlimited freedom of choice and an ability to change their names. Commercial relations on the Internet can involve a person posing under a fictitious name or with no name at all, can freely enter into a relationship with others.16 However, not all civil legal relations on the Internet can be classifi ed with such provision. In most cases there are also signifi cant legal gaps. In order to fi ll these gaps, the parties to civil relations on the Internet must have recourse to presumptions. B. Presumptions

It is known that legal personality as the ability of a legal person to be a party to civil law relations is deﬁ ned as the unity of legal capacity – the ability to be vested with civil rights and responsibilities, and capacity to act, i.e. the ability of citizens to acquire civil rights and become subject to obligations through their actions. Under certain circumstances, civil law relations will be presumed to have been validly established by the relevant transactions. This primarily involves cases in which the law does not require a person’s credentials to be veriﬁ ed (authorization). V. A. Oygenziht formulates this point as a ‘presumption of legal personality’: ‘Assuming that the age of majority have been attained, an obvious fact may be presumed, namely legal personality and the authorization by/ competence of a person to be a subject of legal relations.’17

15 Stepanov V.K. Primenenie Interneta v professional’noy informatsionnoy deyatel’nosti: monografiya / M.: Fair, 2009. S. 19 (VK Stepanov, The Use of the Internet for Professional Information Activities (Fair 2009) 19). 16 ibid (n 11) 114, 120. 17 Oygenzikht V.A. Prezumptsii v sovetskom grazhdanskom prave / Dushanbe: Irfon, 1976. S. 54 (VA Oygenzikht, Presumptions in the Soviet Civil Law (Irfon 1976) 54). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 75

The second problematic issue associated with the presumption is a presumption of intention. The nature of transactions tends towards speculation that the rights and obligations arising from this transaction will reﬂ ect the wishes of the parties.18 This is a general presumption of conformity with intention. ‘Evaluation of behaviour holds a special place in this presumption, indicating the expression of will and, in particular, the conclusion of contractual bargains, from which assumptions concerning the intention of the entity/subject result. This is at any rate what V.A. Oygenziht believes. Contractual bargains are deemed to include conclusive actions in which the will is expressed indirectly. But as O.A. Krasavchikov says, in this case it is not an intention that is expressed indirectly but our conclusion regarding this matter: our opinion is made up of such actions.19 Yet it is nothing but recognition of the presumption of contractual bargains, i.e. not an absolute conviction of compliance with intention but an assumption of that fact with a high degree of likelihood. A special instance of such conclusive action is implied consent. The presumption of an expression of intention and the agreed intention follow from silence.’20 There is a question as to the theoretical value of the institution of presumptions within legal relations arising within the virtual space of the Internet. To start with, two main features of the architecture of the Internet will be presented. These include the lack of any geographical boundaries within the virtual space of the Internet and the complexity associated with the identification of users, which gives rise to the specific features associated with the legal regulation of the Internet.21 Here,

18 Novitskiy I.B. Sdelki. Iskovayadavnost’/ M.: Gosyurizdat, 1954. S. 21 (IB Novitskiy, Transactions. Limitation of Actions (Gosyurizdat 1954) 21). 19 Krasavchikov O.A. Yuridicheskie fakty v sovetskom grazhdanskom prave / M.: Gosyurizdat, 1958. S. 101 (OA Krasavchilov, Legal Facts in the Soviet Civil Law (Gosyurizdat 1958) 101). 20 ibid (n 16) 57. 21 Savel’ev A.I. Elektronnaya kommertsiya v Rossii i za rubezhom: Pravovoe regulirovanie / M.: Statut, 2014. S. 41, 44 (AI Savel’ev, E-Commerce in Russia and Abroad: Legal Regulation (Statute 2014) 41).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 76 KUTAFIN UNIVERSITY LAW REVIEW without going into a long theoretical discourse about how the Internet is situated outside the legal domain, it may be noted, using only the conceptual apparatus of information law, that most relationships within the virtual space of the Internet are based on civil law contracts, albeit with the features of the virtual space created by the Internet. Within this context of the civil law component of the Internet, relationships between civil law subjects within the virtual space of the Internet are built on the external agreement, a convention enabling agreement to be reached concerning problems arising for which there is no legal framework. By virtue of this conventionality, parties to legal relations on the Internet initially comply with certain contractual settings, specifically that a contracting party or any other entity entering into any legal relations in the virtual space of the Internet is: first a full-fledged legal subject with full legal capacity; secondly, acting consciously; and thirdly, operating within the legal field stated, although no visible confirmation is available within traditional physical space. This is a presumption in its classical form. As can be seen, the scope of the institute within the virtual space of the Internet is much broader than in the physical space: many conclusive actions manifesting consent, which usually occur when any transactions in physical space are made and which are an inherent part of the transaction (for example, physical presence), are impossible in the Internet. The conventional nature of the relationship within the virtual space of the Internet also extends to processes pertaining to the contractual relationship between the entities. In this regard, it may be asserted that the rules governing these relationships are quasi normative in nature, since there are no legal rules on the Internet governing both how to identify the subject and how to establish jurisdiction. For these reasons, one of the fundamental principles applicable to relations within the virtual space of the Internet can be referred to as the principle that the parties involved are presumed to have equal status and legal personality. This principle is formulated as follows: on the Internet, subjects with equal status and capacity may enter into relationships concerning the provision of goods and services to the extent provided by civil law and contractual agreements. With regard to most contracts concluded in physical space, the visual perception of the other party is sufficient in order to establish www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 77 that they have legal personality. However, things are different in the Internet: the architecture of the Internet cannot in most cases enable not only the age but also the personality of the counterparty to be established. Moreover, since the Internet removes the physical presence of the parties to the transaction, here for example, the seller under a contract of sale accepts an offer solely by virtue of the presumption that, despite the absolute lack of information concerning the other party’s legal and physical status, the buyer is legally capable and competent, even though there is no document providing ‘visual’ evidence of this. Another presumption on the Internet is a presumption of ‘proper jurisdiction’. As mentioned above, one of the fundamental features of the Internet is its indifference to state boundaries. The virtual space of the Internet, as opposed to real space, is “separated” from its territorial and geographical attributes, and represents a single imaginary world of technological space with no speciﬁ c national borders. Within cyberspace, the personal law of the subject and the law applicable to transactions are determined conventionally. Thus, it can be stated as a general thesis that all relationships in the virtual space of the Internet, including legal relationships, are conventional in nature and are based on legal presumptions.

C. Conventional basis

The conventional status of relationships on the Internet has developed over the course of long-term interaction between legal subjects as the best way of regulating relations in virtual space; it follows naturally from network practice. Any Internet user starting to work on the network accepts the presumption of the equality, integrity and personality of its counterpart without proof. Characteristically, existing relations allow legal relations to be established and for business to be done on the Internet without gross violations of rights and obligations. In doing so, the parties accept these assumptions that parties involved have legal personality and are equal in all respects without additional agreements. In adhering to this principle, the parties do not resort to any kind of sanction or other form of liability under civil law.

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IV. LEGAL PERSONS ARE PARTIES TO LEGAL RELATIONS ON THE INTERNET

The legal persons that are parties to civil law relations within the virtual space of the Internet include Internet access providers and direct Internet companies offering a variety of services to users. Whilst the legal status of providers does not cause legal issues (they have to be registered as legal entities in the Republic of Tajikistan), there are legal challenges for Internet companies providing e-mail and informational services. It is increasingly common for businesses to enter into contracts, via the Internet, for the sale and purchase of goods or services to consumers who are domiciled in countries other than those in which the businesses are based. Such contracts are international in the sense that the legal relationships between consumer/purchaser and business/vendor are connected – actually and/or potentially – to the legal systems of more than one country.22 Thus, the vast majority of these companies are registered in other countries. For example, the Regulations posted on the website of the company ‘Facebook’, cite: ‘You will resolve any claim, cause of action or dispute with us arising from these Regulations or in connection with it or with Facebook, exclusively in the US District Court of Northern California or federal court located in San Mateo County.’23 Consequently, the company providing free services to citizens of Tajikistan (although also citizens of Russia and other countries around the world) is officially registered in the United States. Other Internet companies, representing information retrieval services – ‘Yandex’ – are registered in Hague in the Netherlands. In this case no one knows which regulations will apply to claims and lawsuits or to which type of transaction this form of contract may apply. The law does not govern the territory but rather speciﬁ c relationships, and problems usually start to arise when these relationships take on

22 M Foss, LA Bygrave ‘International Consumer Purchases through the Internet: Jurisdictional Issues pursuant to European Law’ (2000) 8 (2) International Journal of Law and Information Technology 99. 23 www.facebook.com www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 79 cross-border status.24 In such cases, the rules of private international law start to be applied to these relationships. According to the private international law applicable to legal persons, the concept of the personal law or personal status of the legal entity (lex societatis) is applied. It is possible to establish with reference to this law whether or not any given formation is a legal entity, what its capacity and capability are, how responsibility for the obligations of the legal person is defi ned and so on. In order to do so, various criteria are applied including incorporation (the state of registration), location (the location of the centre of control), place of business (operational centre), the control theory, and others.25 These criteria help to determine the jurisdiction that regulates civil legal relations established on the Internet. When determining jurisdiction it would appear natural to apply the principle of the nationality of the owner of information (or site administrator). However, where this principle is directly applied it is open to abuse; when operating within one’s own jurisdiction, a person acting in bad faith can violate the rights of others with impunity. The most acceptable solution to the problem of jurisdiction on the Internet is considered to involve the conclusion of an international agreement on the defi nition of jurisdictional issues concerning the activities on the Internet.26 By taking a bird’s eye perspective of arguments over whether the existence of a website is suffi cient in order to assert jurisdiction over the entity behind the website, Uta Kohl argues that the most effi cient regulatory options are not in fact the best or most realistic regulatory options if their implementation entails substantial legal disruption.27

24 Grazhdanskoe pravo: actual’nye problem teorii i praktiki / Pod obshch. red. V.A. Belova. M.: Yurayt, 2007. S. 963 (Civil law. Actual Problems of theory and Practice (VA Beloved, Yurayt 2007) 963). 25 Boguslavskiy M.M. Mezhdunarodnoe chastnoe pravo. Uchebnik / 5-e izd., pererab. i dop. M.: Yurist, 2005. S. 148-152 (MM Boguslavskiy, International Private Law. Textbook (5rd edn, Lawyer 2005) 148). 26 Kalyatin V.O. Pravo v sfere Interneta / M.: Norma, 2007. S. 71 (VO Kalyatin, Law in the Sphere of Internet (Norm 2007) 71). 27 U Kohl, ‘Legal Reasoning and Legal Change in the Age of the Internet – Why the Ground Rules are Still Valid’ (1999) 7 (2) Int J Law Info Tech 123.

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Bibliography

Andreev V.K. Sushchestvo nematerial’nykh blag i ikh zashchita // Zhurnal rossiiskogo prava. 2014. № 3. S. 27-33. (VK Andreev, ‘Merits of Intangible Beneﬁ ts and their Protection’ (2014) 3 Journal of Russian Law 27) Boguslavskiy M.M. Mezhdunarodnoe chastnoe pravo. Uchebnik / 5-e izd., pererab. i dop. M.: Yurist, 2005 (MM Boguslavskiy, International Private Law. Textbook (5rd edn, Lawyer 2005)) Castells M, The Internet Galaxy Reﬂ ections on the Internet, Business and Society (Oxford University Press 2001) Deibert R & Rohozinski R, ‘Good for Liberty, Bad for Security? Global Civil Society and the Securitization of the Internet’ in Ronald Deibert (ed), Access Denied: the Practice and Policy of Global Internet Filtering (2008) Foss M, Bygrave LA, ‘International Consumer Purchases through the Internet: Jurisdictional Issues pursuant to European Law’ (2000) 8 (2) International Journal of Law and Information Technology Gambarov Yu. S. Grazhdanskoye pravo. Obshchaya chast’ / Pod red. V.A. Tomsinova. M.: Zertsalo, 2003 (YuS Gambarov, Civil Law. The General Part (VA Tomsinoved, Zertsalo 2003)) Gillespie AA, ‘Restricting Access to the Internet by Sex Offenders’ (2011) 19 INT’L JL & INFO TECH Grazhdanskoe pravo: actual’nye problemy teorii i praktiki / Pod obshch. red. V.A. Belova. M.: Yurayt, 2007 (Civil law. Actual Problems of theory and Practice (VA Beloved, Yurayt 2007)) Grazhdanskoe pravo. Chast’ 3. Uchebnik dlya vyzov v trekh chastyakh. Chast’ pervaya / Pod red. V.P. Kamyshanskogo, N.M. Korshunova, V.I. Ivanova. M.: Eksmo, 2009 (Civil law. Textbook. In three Parts. Part One (VP Kamyshanskiy, NM Korshunov, VI Ivanov eds, Eksmo 2009)) Kalyatin V.O. Intellektual’naya sobstvennost’ (iskluchitel’nye prava): Ucheb. dlya vyzov / Vstup. st. V.A. Dozortseva. M.: Norma – Infra-m, 2000 (VO Kalyatin, Intellectual property (exclusive rights) (Norm – Infra-m 2000)) Kalyatin V.O. Pravo v sfere Interneta / M.: Norma, 2007 (VO Kalyatin, Law in the Sphere of Internet (Norm 2007)) www.kulawr.ru Volume 2 May 2015 Issue 1(3) Abdudzhabar Abdujalilov Legal Relations оn the Internet 81

Kharitonov E.O. Osnovy rimskogo chastnogo prava / Rostov na Donu: Feniks, 1999 (EO Kharitonov, Fundamentals of Roman Private Law (Phoenix 1999)) Kohl U, ‘Legal Reasoning and Legal Change in the Age of the Internet – Why the Ground Rules are Still Valid’ (1999) 7 (2) Int J Law Info Tech Krasavchikov O.A. Yuridicheskie fakty v sovetskom grazhdanskom prave / M.: Gosyurizdat, 1958 (OA Krasavchilov, Legal Facts in the Soviet Civil Law (Gosyurizdat 1958)) Lucchi N, ‘Internet Content Governance & Human Rights’ (2014) 16 (4) Vanderbilt Journal of Entertainment and Technology Law Meyer D.I. Russkoe grazhdanskoe pravo. Obshchaya chast’/ Pod red. A. Vitsina. Kazan’, tom 2, 1859 (DI Meyer, Russian Civil Law. The General Part, vol 2 (A Vistined, Kazan’ 1859)) Novitskiy I.B. Sdelki. Iskovaya davnost’/ M.: Gosyurizdat, 1954 (IB Novitskiy, Transactions. Limitation of Actions (Gosyurizdat 1954)) Oygenzikht V.A. Prezumptsii v sovetskom grazhdanskom prave / Dushanbe: Irfon, 1976 (VA Oygenzikht, Presumptions in the Soviet Civil Law (Irfon 1976)) Savel’ev A.I. Elektronnaya kommertsiya v Rossii I za rubezhom: Pravovoe regulirovanie / M.: Statut, 2014 (AI Savel’ev, E-Commerce in Russia and Abroad: Legal Regulation (Statute 2014)) Shershenevich G.F. Uchebnik russkogo grazhdanskogo prava / M.: Statut, tom 2, 2005. S. 121 (GF Shershenevich, Textbook of Russian civil law, vol 2 (Statute 2005)) Stepanov V.K. Primenenie Interneta v professional’noy informatsionnoy deyatel’nosti: monografi ya / M.: Fair, 2009 (VK Stepanov, The Use of the Internet for Professional Information Activities (Fair 2009)) Tarasov M. Nekotorye aspecty identifi katsii grazhdanina kak uchastnika grazhdansko-pravovykh otnosheniy v informatsionno – kommunikatsionnykh setyakh // Khozyaistvo i pravo. 2014. № 5. S. 113 (M Tarasov, ‘Some Aspects of the Identifi cation of the Citizen as a Member of Civil Relations in Information and Communication Networks’ (2014) 5 Economy and Law 113) Ushakov S.I. Pravootnosheniya: teoretiko – pravovoy i strukturno- funktsional’nyy analiz / M.: 2013 (SI Ushakov, Legal Relations: Theoretical and Legal, Structural and Functional Analysis (Moscow 2013)) Vincenzo Zeno-Zencovich, Freedom of Expression: a Critical and Comparative Analysis (Sir Basil Maxkesinis& Dr Jörg Fedtkeeds, 2008)

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NOTE

INTERNATIONAL ATOMIC ENERGY AGENCY ACTION PLAN ON NUCLEAR SAFETY: ON THE WAY TO IMPROVING INTERNATIONAL SAFETY STANDARDS By Kirill Kozhevnikov (Russia) Author PhD candidate in Ecology Lawand Natural Resources, Kutafi n Moscow State Law University Holder of a Degree in International Nuclear Law, University of Montpellier, 2014 E-mail: [email protected] Abstract The article is devoted to the understanding of nuclear safety in legal terms under the modern conditions. The article gives an overview of the Fukushima Daiichi accident and its impact on the international legal framework for nuclear security and Japanese society. The article also shows the infl uence of International Atomic Energy Agency Action Plan on the process of creating a global nuclear safety regime, and its role in enhancing international safety standards. The author supports the idea that nuclear safety combines two main elements and gives their defi nitions. One of these disputable instruments is the International Atomic Energy Agency Safety Standards intended to protect people and the environment against harmful effects of ionizing radiation. Does the international society have appropriate legal instruments that could be considered as safety fundamentals and legally binding standards internationally recognized? This remains one of the main post-Fukushima questions. Keywords Nuclear safety, nuclear law, the Fukushima Daiichi accident, International Atomic Energy Agency (IAEA), International Atomic Energy Agency Action Plan, Nuclear Energy Agency at Organization for Economic Co-operation and Development (OECD NEA), International Safety Standards www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 83

TABLE OF CONTENTS

I. Introduction ...... 83 II. Fukushima Daiichi as ‘Wake Up Call’ for Nuclear Industry ..84 III. The IAEA Action Plan on Nuclear Safety: What We Should Do After ...... 86 IV. Nuclear Safety as General Term of International Legal Instruments ...... 89 V. Post-Fukushima Reports: Lessons Learnt ...... 93 VI. International Safety Standards: On the Way to Improving International Legal Framework in Nuclear Law ...... 97 VII. Concluding Remarks ...... 100 Bibliography ...... 101

“Energy security may seem like an abstract concern – certainly important, yet vague, a little hard to pin down. But disruption and turmoil – and the evident risks – demonstrate both its tangibility and how fundamental it is to modern life.” Daniel Yergin, ‘The Quest’

I. INTRODUCTION

Current status of nuclear energy could be expressed in two ﬁ gures. According to the 2013 International Atomic Energy Agency (IAEA) projections for 2030, the world’s nuclear power generation capacity is expected to grow by minimum 17% and maximum 94%.1 Fukushima rollback made nuclear industry move forward. The main purposes of this article are:(1) to analyze the influence of Fukushima Daiichi accident on the international legal system; (2) to examine the role of the IAEA Safety Standards in the enhancing

1 IAEA, Annual Report (2013) accessed 10 January 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 84 KUTAFIN UNIVERSITY LAW REVIEW process of global nuclear safety regime;(3) to investigate how the IAEA Action Plan on Nuclear Safety may affect the international safety standards. Nuclear safety faced its biggest challenge when an earthquake and tsunami struck the Fukushima nuclear power station in Japan on March 11, 2011. Nuclear energy regulation has its own peculiarities that could be seen at the international level. Vast majority of states, which have nuclear energy power or those who are going to embark peaceful nuclear program, recognize modern international legal instruments. However, the legal international regime of nuclear power is a challenge that undergoes from the recent dynamics of international law regarding safety of nuclear power plants, regulatory institutions and transparency, even after the Fukushima Daiichi accident. Fukushima accident brought not only a huge damage but also changed the perception of industry for a long period of time again, like after Chernobyl. The increasing importance of safety and security questions is observed in all countries through all over the world for a simple reason: if something happens anywhere, it happens everywhere.

II. FUKUSHIMA DAIICHI AS ‘WAKE UP CALL’ FOR NUCLEAR INDUSTRY

On March 11, 2011 a strong earthquake with a magnitude of 9.0 occurred in Sanriki coast of Japan that resulted in multiple tsunamis. The earthquake generated a major tsunami, which was the catastrophic blow of a one-two punch.2 The earthquake and tsunami damaged several nuclear power stations, together with the Fukushima Daiichi Power Plant, being the worst affected, which made Japan declare itself as a State of Nuclear Emergency. In the quake’s aftermath, there was a threat of a meltdown at the country’s power plants with long-lasting repercussions not only in the region but across the world. The potential cost of Fukushima has even

2 Fukushima Daiichi. ANS Committee Report (March 2012, Revised June 2012) accessed 12 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 85 affected the credit rating of the Japanese government.3 What’s more, according to the UN Offi ce for the Coordination of Humanitarian Affairs, around 16,600 persons went missing, while much more were displaced from their homes.4 BBC mentioned that Japan faced an unprecedented nuclear accident that was rated 7 on the International Nuclear and Radiological Event Scale (INES).5 According to C. Jorant, the tragedy is going on in Japan. It would be inadequate to judge about the mid- and long-term impact of the Fukushima accident on the development or dismantling of the continent’s nuclear facilities by immediate political reactions from Europe.6 Y. Funabashi and K. Kitazama believe that ‘a close examination of the accident is not only essential for Japan’s reconstruction and energy policy – including the country’s nuclear power component – but also highly signifi cant for the international community’.7 Nevertheless, K. Kurokawa, Chairman of the Fukushima Nuclear Accident Independent Investigation Commission (NAIIC), empowered by the Japanese government, noted that ‘the Fukushima Daiichi disaster was made in Japan’, and fl owed from ‘the ingrained conventions of Japanese culture’.8

3 ‘Japan: Credit outlook on fears about Fukushima’ International Business Times (NY, 30 May 2011) accessed 12 January 2015. 4 UN Office for the Coordination of Humanitarian Affairs, Japan: Earthquake & Tsunami, Situation Report No.7 (18 March 2011) accessed 10 January 2015. 5 ‘How Does Fukushima Differ From Chernobyl’ BBC (London, 16 December 2011) accessed 10 January 2015. 6 C Jorant, ‘The Implications of Fukushima. The European Perspective’ [2011] Bulletin of the Atomic Scientists 14. 7 Y Funabashi, K Kitazawa, ‘Fukushima in Review: a Complex Disaster, a Disastrous Response’ [2012] Bulletin of the Atomic Scientists 11. 8 The Official Report of the Fukushima Nuclear Accident Independent Investigation Commission (2012) accessed 12 January 2015.

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As it was outlined in the National Report of Japan for the Sixth Review Meeting, reconstructions began almost immediately but, as expected, it would take many years to complete them.9 According to EURATOM Advisor J. Silye, ‘the Fukushima nuclear accident renewed attention on the paramount importance of ensuring the high level of nuclear safety in the EU and worldwide’.10 As a result, Fukushima accident also affected public attitudes to the nuclear industry. The accident remained to be the main headline in the most mass media resources for many weeks that had a negative impact on energy policy of different countries. Surprisingly, the accident changed the relationship between environmental beliefs and public views about nuclear power. The occurrence of an event that promotes negative attitudes towards nuclear power also creates more positive general environmental values. Indeed, in a society, it was observed a big change regarding trust, risk perception, pronuclear attitudes and antinuclear behavioral intention following the Fukushima accident.11

III. THE IAEA ACTION PLAN ON NUCLEAR SAFETY: WHAT WE SHOULD DO AFTER

The Action Plan on Nuclear Safety (the Action Plan) was adopted at the 55th Regular Session of the General Conference in September 2011.12 The goal of the Action Plan is to deﬁ ne a scope of work to strengthen the global nuclear safety framework. The Action Plan afﬁ rms that responsibility to guarantee the highest standards of nuclear safety bears on each member state.

9 National Report of Japan for 6th review Meeting, August 2013, accessed 12 January 2015. 10 J Silye, EU Initiatives Following Fukushima Nuclear Accident: Amending the Nuclear Safety Directive and Establishing the ‘EU Liability Regime’. (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20-23 October 2014) accessed 12 January 2015. 11 G Prati, B Zani, ‘The Effects of the Fukushima Nuclear Accident on Risk Perception, Antinuclear Behavioral Intentions, Attitude, Trust, Environmental Beliefs and Values’ [2013] Environment and Behavior 782-798. 12 IAEA Action Plan on Nuclear Safety accessed 15 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 87

The Action Plan declares twelve main areas of work to be done to improve nuclear safety. These areas are: — Safety Assessments in the light of the accident at TEPCO’s Fukushima Daiichi Nuclear Power Station — IAEA peer reviews — Emergency preparedness and response — National regulatory bodies — Operating organization — IAEA Safety Standards — International legal framework — Member states planning to embark on a nuclear power program — Capacity building — Protecting people and the environment from ionizing radiation — Communication and information dissemination — Research and development Nowadays, it would be fair to state that the Action Plan plays a significant role in the enhancing the global nuclear safety framework. The main progress was marked in the areas of the assessment of safety vulnerabilities of Nuclear Power Plants (NPP), strengthening the IAEA’s peer review services, improving emergency preparedness and response capabilities, strengthening and maintaining capacity building, and protection people and the environment from ionizing radiation.13 One of the first international efforts to improve nuclear safety was made within the Fifth Review Meeting of the member states of the Convention on Nuclear Safety (CNS) in Vienna, in July 2011. There were identified several areas of nuclear safety needed to be improved. Contracting parties were divided into several groups according to their country. Each group was considering in detail the national report of each member of the group, discussing all subjects covered by the report.14

13 IAEA, Progress in the Implementation of the IAEA Action Plan on Nuclear Safety (2003) GOV/INF/2013/8-GC(57)/INF/5 accessed 18 January 2015. 14 IAEA INFCIRC/573/rev5 Rule 17 Country Rules accessed 16 January 2015.

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In 2013 the International Ministerial Conference on Nuclear Power in the 21st Century, organized by the IAEA and hosted by the Government of the Russian Federation took place in Saint Petersburg, Russia. Conference participants (over 500) included Ministers, high- ranking officials and experts from 87 States and 7 international organizations. The Conference concluded that for many countries nuclear power is a proven, clean, safe, and economical technology that is going to play an increasingly important role in achieving energy security and sustainable development goals in the 21st century’.15 IAEA peer reviews could be considered as one of the main instruments of enhancing global nuclear safety regime. The Agency’s Programme on assessment of NPPs registered by member states of IAEA is assured by its long history. For example, the Operational Safety Review Team (OSART) Programme was established in 1982 and had provided the assistance on the nuclear safety of NPPs under construction, commissioning and operation for thirty years. The OSART guidelines on severe accident management were revised with the approval of member states and based on the recent experience. The IAEA has organized and conducted ten OSART missions and nine follow-up missions since the Action Plan was adopted. As far as presumed by the CNS, each party is required to prepare a report on the measures taken domestically to fulfill its obligations under the CNS, in order to allow peer review. In fact, within the framework of preparatory meetings it was confirmed that presentation of the national reports should be concentrated mostly on the following topics: nuclear power plant design against external events, response to emergency situations, emergency management, safety considerations for operation of multi-units at the same site, cooling spent fuel storage in severe accident scenarios, training operators for severe accident scenarios, radiological monitoring following an accident involving radiological

15 International Ministerial Conference ‘Nuclear Power in the 21st Century’ (St. Petersburg, June 27-29 2013), Concluding Statement by the President of the Conference accessed 16 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 89 release, public protection emergency actions, and communications in emergency situations.16 In October 2012, the results of the stress tests of all EU nuclear plants were released. It was stated that EU NPPs generally have high safety standards but further improvements known as ‘post-Fukushima demands’ need to be made still. What’s more, these stress tests had an influence on the EU legal framework concerning global regime of nuclear safety. As a result, the Commission started to work on the amendment of the EU Directive on Nuclear Safety.

IV. NUCLEAR SAFETY AS GENERAL TERM OF INTERNATIONAL LEGAL INSTRUMENTS

M. Cooper, having reviewed nuclear reactor safety after an accident, revealed an endemic tendency to undervalue safety before an accident. Previous violations of standards did not result in taking measures to prevent these violations but instead they led to lowering standards in order to avoid increased expenses related to safety.17 The Convention on Nuclear Safety (CNS) adopted in 1994 does not have a notion of nuclear safety mentioning this term several times though. What’s more, the CNS states that the Convention is to achieve the highest level of nuclear safety on the ground of ensuring national measures and international cooperation. Under the article 10 of the CNS counterparties are obliged to adopt appropriate measures to ensure that all organs, organizations, dealing with nuclear facilities and materials, follow a policy of nuclear safety priority. The CNS is considered to be an ‘incentive convention’, prescribing general safety rules without directly interfering in the competence of the national regulatory bodies.

16 Summary Report of the 6th Review Meeting of the Contracting Parties to the Convention on Nuclear Safety (Vienna, 4-14 April 2014) accessed 16 January 2015. 17 M Cooper, ‘The Implications of Fukushima: The US perspective’ [2011] Bulletin of the Atomic Scientists 9.

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According to P.L. Johnson, member states of CNS are responsible for applying of IAEA Action Plan in order to make international instruments more effective.18 The Convention presumes each party ‘to take appropriate steps to ensure the safety of nuclear installations’. The Convention provides for the organization of triennial review meetings of the contracting parties who intend to develop cooperation and share experience. A review meeting is organized every three years. A few months prior to the ‘review meeting’, each contracting party submits a report presenting the measures taken to implement the obligations of the Convention. During the meeting each presented report is discussed with the other contracting parties who have a right ask additional questions. A summary report made by the meeting chairman presents the progress achieved and the diffi culties occurred.19 Nuclear security issues are not governed by one single convention but by multiple international instruments. The Convention on Physical Protection of Nuclear Material (CPPNM) came into force in 1987. In 2014 it had 150 states parties. The Convention applies to ‘nuclear material’ as defined in Article 1 and used for peaceful purposes: such material could be, due to its fissile properties, used to make a nuclear explosive device. The CPPNM prescribes physical protection levels that have to be applied during international transportation only. It also establishes measures for the prevention and punishment of the offences relating to domestic use, storage and transportation of nuclear material. According to the IAEA’s Incident and Traffi cking Database (ITDB), however, nuclear material keeps going missing.20 During the period from July 1, 2013 to June 30, 2014, it was fi xed 14 illegal attempts to

18 PL Johnson, ‘The post-Fukushima Daiichi Response: The Role of the Convention on Nuclear Safety in Strengthening the Legal Framework for Nuclear Safety’ [2013] Nuclear Law Bulletin 16. 19 Autorite de Securite Nationale accessed 15 January 2015. 20 PL Johnson, Facilitating the Entry into Force and Implementation of the Amendment to the Convention on the Physical Protection of Nuclear Material: Observation, Challenges and Benefits (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20-23 October 2014) accessed 12 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 91 sell nuclear material or radioactive sources. So, ‘the threat of nuclear terrorism remains real’.21 The Nuclear Terrorism Convention was signed in 2005 and entered into force in 2007. By July 2014, it had 94 states joined. It applies to radioactive material, including nuclear material, other radioactive substances, which may cause death, serious bodily injury or substantial damage of property or the environment. The Beijing Convention is a ‘successor convention’ of 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. It was adopted in 2010. During the period from 2010 to 2014, thirty states signed the Convention and eight countries ratified it. The Code of Conduct on the Safety and Security of Radioactive Sources provides a basic governance framework for the safety and security of all radioactive sources that may pose a signiﬁ cant risk to individuals, society and the environment. It is non-binding but in its resolution 47/ RES/7 (2003), the IAEA’s General Conference urges ‘each State to write to the Director General that it fully supports and endorses the IAEA’s efforts to enhance the safety and security of radioactive sources and works toward following the guidance contained in the IAEA Code of Conduct on the Safety and Security of Radioactive Sources and encourages other countries to do the same’.22 Of course, these mentioned hard law instruments in nuclear law are characterized by the most important legal feature: they are legally binding and have enforceable nature. But, today we could state that in international nuclear law the soft law has a very special meaning. These norms are standards of safety, the best practice, that have been developed for a long time as the most reasonable and achievable. Because there is often compliance with soft law and there is sometimes a failure to obey a hard law by states, the binding nature of a law does not accurately describe whether it can be considered as a source of international law or not.23 So, these legal instruments such as the IAEA Code of Conduct,

21 ibid. 22 ibid. 23 LA Hughes, ‘The Role of International Environmental Law in the Changing Structure of International Law’ [1998] Georgetown International Environmental Law Review 245.

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Safety Standards etc. seem to be more significant in this field, simply because such soft law norms provide involvement by international organizations. Therefore, it better reflects the interest of the entities that are directly involved in ordinary nuclear activity. What’s more, the softening of international law is considered as a current international legal trend24. As a result, modern international nuclear law is divided into two groups. The fi rst group includes traditional conventions and international treaties. The second one includes rules, norms adopted by international organizations. The safety principle is one of the fundamental principles of nuclear law. What’s more, according to basic Handbook on Nuclear Law, safety is a primary requisite for using nuclear energy and the application of ionizing radiation. This principle could be defined as mechanism of ensuring that ‘individuals, society and the environment should be protected from harm by providing for the establishing of effective defenses against radiological hazards, and for monitoring, i.e. should prevent accidents’.25 According to IAEA Glossary of Safety, ‘safety means the protection of people and the environment against radiation risk as well as against activities that give rise to radiation risks’.26 In general, nuclear safety includes two main elements: operational nuclear safety and physical protection of nuclear material and facilities. For instance, in Russia there is no any legally defi nition of nuclear safety or physical protection, there is a notion of safety as general term only. Nevertheless, operational nuclear safety could be defi ned as system of defense of nuclear facilities in order to create or achieve effective ways of protection from radiological hazards, aiming to protect personal, society and environment from harmful effects.

24 A Peters, Global Constitutionalism Revisited International Legal Theory (2005) 59. 25 C Stoiber, Handbook on Nuclear Law (International Atomic Energy Agency 2003) 5, 64. 26 IAEA Safety Glossary: Terminology Used in Nuclear Safety and Radiation Protection (International Atomic Energy Agency 2007) 177 accessed 15 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 93

Operational safety system includes questions concerning proper technological use of nuclear material and nuclear facilities in order to reduce their ionizing harmful effects. Nuclear security focuses on the prevention, detection and response to criminal or other intentional unauthorised acts involving or directed at nuclear or other radioactive material, nuclear facilities, or facilities associated with the management of radioactive sources. Such malicious acts could involve attempts of a terrorist group to make a nuclear explosive device using a nuclear material. Nuclear security incidents include thefts, sabotage, illicit trafﬁ cking and illegal transfers of nuclear and other radioactive material.27 To sum it up, nuclear safety is a complex object that contains scientiﬁ c, technical, economical, and legal aspects that affect social and demographical development of nation. Nevertheless, it is worth mentioning that terms ‘nuclear safety’ or ‘ionizing’ have strongly negative anti-ecological connotations. Having a rational balance between economical needs and ecological deeds is the way to provide a mankind with energy recourses in ecological proper way.

V. POST-FUKUSHIMA REPORTS: LESSONS LEARNT

Following Fukushima accident OECD NEA member countries took measures to review the safety of nuclear power reactors.28 OECD NEA Report mentioned several high priority activities in order to enhance nuclear safety within member states, such as filtered containment venting, hydrogen management, robustness of electrical systems, risk analysis for natural external hazards, high seismic loads on metallic components, software tools application for

27 S Drobysz, A New Legal Tool for States: the National Legislation Implementation Kit on Nuclear Security (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20-23 October 2014) accessed 12 January 2015. 28 OECD/NEA, Nuclear Safety Response and Lessons Learnt (OECD 2013 NEA No. 7161) accessed 15 January 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 94 KUTAFIN UNIVERSITY LAW REVIEW the estimation of fission product releases. It is worth mentioning that human behavior under extreme conditions plays a role of primary importance. This performance includes different factors forming human intervention and performance under extreme conditions. There is no surprise that Fukushima accident became possible because of human actions. Just a week after the accident, the NEA already began establishing expert groups, called the Expert Group on Radiological Protection Aspects of the Fukushima Accident (EGRPF). What’s more, as it was stated in the Report, NEA member countries had reviewed their operating reactors and determined that they were safe to continue operating. Also, after Fukushima member states conducted the comprehensive safety ‘peer review’, aiming to ﬁ nd weak points and areas of improving in challenging situations covering, for example, earthquakes, ﬂ ooding or postulated loss of safety function. The former NEA Director-General L. Echavarri in his foreword mentioned that ‘the accident marked a turning point in terms of reviewing how nuclear safety is evaluated and ensured’.29 According to the Report, ‘ensuring safety is a national responsibility but poses a global concern due to potentially far- reaching accident consequences’. As a result, the NEA Report affirms collective responsibility or nuclear safety. As for ‘defense in depth’, it was mentioned that member countries should encourage intense implementation of defense-in-depth, including during the construction and operation of nuclear facilities.30 In March 2012 American Nuclear Society (ANS)formed a special body, the American Nuclear Society Special Committee on Fukushima (the Committee), to examine the Fukushima Daiichi accident. The Committee was formed to provide a clear and concise explanation of the accident events, health physics, and accident cleanup, as well as safety- related issues that emerged. The Committee also evaluated actions that ANS should consider to better communicate with the public in case of nuclear event occurrence.

29 ibid. 30 ibid. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 95

Above all, as it was mentioned in the Committee’s report‘no aspect of the Fukushima Daiichi accident indicates on unacceptability of safety level of nuclear power plants (NPPs) in the United States’. At the same time, the Committee mentioned the following areas of American nuclear industryneeded to be improved: — Risk-Informed Regulation. The regulatory body must review the scope of reactors safety regulation; — Hazards from Extreme Natural Phenomena. A risk-informed regulatory approach would identify the existing design bases as deﬁ cient; — Multiple-Unit-Site Considerations. The Committee recommended the regulatory body to conduct a multiple-unit risk assessment whenever a unit is added to a site; — Hardware Design Modiﬁ cations. Post-Fukushima event showed that resolution of hardware issues might lead to unintended system-interaction effects; — Severe Accident Management Guidelines. The industry needs to develop a consensus with regulatory bodies concerning the intent and scope of severe accident management guidelines, including the manner in which they interface with emergency operating procedures. Institution of Nuclear Power Operators (INPO) also prepared post-Fukushima report. According to the report, nuclear power plant operating organizations should always consider lessons learned.31In April 2012, the Institute of Nuclear Power Operations, with participation of the World Association of Nuclear Operators, conducted an independent event review of the nuclear accident at the Fukushima Daiichi Nuclear Power Station that resulted from the Great East Japan Earthquake and Tsunami on March 11, 2011. The review was performed upon the request of Tokyo Electric Power Company (TEPCO) for the purpose of sharing organizational and operating experience with other nuclear operating companies.

31 WANO, Lessons Learned from the Nuclear Accident at the Nuclear Accident at the Fukushima Daiichi Nuclear Power Station (Report, 2012) accessed 15 January 2015.

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The most signiﬁ cant lessons learned should be the following:32 — When periodic review or new information indicates that safety margins could be significantly reduced, a timely, formal and comprehensive assessment of the potential for substantial consequences should be conducted. An independent, cross- functional safety review with a plant walk down should be considered to fully understand the nuclear safety implications. If the consequences could include the potential for common- mode failures of important safety systems, compensatory actions or countermeasures must be established without delay. — Emergency and accident response strategies and implementing actions must give highest priority to maintaining core cooling. — Plans should contain operating procedures for the ﬁ rst few hours of an event, as well as for a long-period term. In addition, plans should clarify how to engage the domestic and international nuclear industry to obtain needed support and assistance during an event. — Optimum accident management strategies and associated implementing procedures (such as emergency operating procedures and accident management guidelines) should be developed through communications, engagement, and exchange of information among nuclear power plant operating organizations and reactor vendors. — Emergency response strategies for extreme external events should consider the traumatic human impact of such events on individual responders and leaders. They should provide for appropriate training, assistance, and contingency plans. — Nuclear operating organizations should consider the safety culture principles, concerningdecision-making, special and unique aspects of the nuclear technology and organizational training.

32 ibid. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 97

VI. INTERNATIONAL SAFETY STANDARDS: ON THE WAY TO IMPROVING INTERNATIONAL LEGAL FRAMEWORK IN NUCLEAR LAW

Under the terms of Article III of its Statute, the IAEA is authorized to establish or adopt standards of safety for protection of health and minimization of danger to life and property, and to provide for the application of these standards.33 The IAEA Safety Standards are applicable to all nuclear activities devoted for peaceful purposes, including activities, performing in order to reduce existing radiation risks. It is important to note that a state, entering into an agreement with the IAEA concerning any form of IAEA assistance is required to comply with the requirements of the standards related to the activities covered by this agreement.34 A good example is Russian Research Reactor Fuel Return (RRRFR) Programme (2002).The IAEA supports the RRRFR through a broad range of technical advice and organizational support, and the activities of RRRFR are subject to the IAEA Safety Standards. As a result of this Programme more than 2100 kilograms of Highly Enriched Uranium from 14 countries were transferred back to Russia for further reprocessing. In terms of IAEA Safety Standards safety includes the safety of nuclear installations, radiation safety, the safety of radioactive waste management and safety in the transport of radioactive material; it does not include non-radiation-related aspects of safety. The IAEA Safety Fundamentals have the aim to protect human life and health, and also the environment. The Safety Standards concern the security of facilities

33 The Statute was approved on October 23, 1956 by the Conference on the Statute of the International Atomic Energy Agency, which was held at the Headquarters of the United Nations. It came into force on July 29, 1957 accessed January 15, 2015. 34 The Global Reference for Protecting People and the Environment from Harmful Effects of Radiation IAEA Nuclear Safety and Security Programme accessed 10 March 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 98 KUTAFIN UNIVERSITY LAW REVIEW and activities to the extent that they require ‘security for safety’ measures to contribute to both safety and security.35 Experts consider Safety Standards as international consensus for protecting people and the environment from harmful effects of ionizing radiation.36

As it demonstrated above, there are three categories of these Standards: 1. The Safety Fundamentals (SF) could be presented as fundamental safety principles of protection and safety. SF provides the basis for the safety requirements. 2. The Safety Requirements are set of requirements that must be met to ensure the protection of people and the environment, both now and in the future. It is worth mentioning that the Requirements are

35 N Pelzer, Does the Fukushima Nuclear Incident Require a Revision of the International Legal Regime on Nuclear Safety? (IAEA Ministerial Conference on Nuclear Safety, Vienna, June 20–24, 2011). 36 Long Term Structure of the IAEA Safety Standards and Current Status (November 2014) accessed 15 January 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 99 governed by the objective and principles of the Safety Fundamentals (SF-1). The Requirements are written in a harmonized manner and contain ‘shall’ statements. 3. The last item in the hierarchy of the IAEA Safety Standards should be Safety Guides. Safety Guides provide recommendations and guidance on how to comply with the Safety Requirements. They are commonly known as ‘best practice’ cases, helping users striving to achieve a high level of safety. They are drafting in ‘should’ manner. Preliminary IAEA Report after the Fukushima accident stated that ‘the tsunami hazards for several sites were underestimated. Nuclear regulatory systems should address extreme external events adequately, including their periodic review, and should ensure that regulatory independence and clarity of roles are preserved in all circumstances in line with IAEA Safety Standards.’37 The Action Plan contains a special section called International Legal Framework that is aimed to ‘improve the effectiveness of the international legal framework’. After adoption of the Action Plan and publication of the report of lessons learnt the Chair of the Commission on Safety Standards has confi rmed the adequacy of the current IAEA Safety Requirements and stated that no signifi cant areas of weakness had been identifi ed. However, we can observe several changes that were made in Safety Requirements relating to the safety of NPPs, namely: — Safety Assessment for Facilities and Activities (GSR P.4); — Governmental, Legal and Regulatory Framework for Safety (GSR P.1); — Site Evaluation for Nuclear Installations (NS-R-3); — Safety of Nuclear Power Plants: Design (SSR-2/1); — Safety of Nuclear Power Plants: Commissioning and Operation (SSR-2/2). In this regard Indonesian initiative seems profi table. At the Seoul Summit in March 2012, the President of Indonesia, H.E. Dr Susilo Bambang

37 IAEA International Fact Finding Expert Mission of the Nuclear Accident Following the Great East Japan Earthquake and Tsunami (1 June 2011) accessed 15 January 2015.

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Yudhoyono, proposed the development of a ‘National Legislation Implementation Kit’ as a ‘practical reference for countries to develop a more comprehensive and coherent national legislation on nuclear security’. At Indonesia’s request, the Kit was forming during 2013 and early 2014 in the framework of Verification Research. The Kit could bea useful tool for states willing to adopt new or complementary nuclear security legislation.

VII. CONCLUDING REMARKS

In conclusion I would like to mention the saying of John Conway, Senior Vice President of Paciﬁ c Gas & Electric Company who pointed out after Fukushima Daiichi accident the following: ‘For nuclear professionals, it is not possible to visit the Fukushima Daiichi site without coming away with a renewed commitment to ensuring nuclear safety.’38 The strongest commitment of such kind is creating and enhancing international legal instruments, especially those that exist under the umbrella term ‘international safety standards’. Is international society ready to have the Safety Fundamentals and other internationally recognized standards legally binding? This is one of the main post-Fukushima questions. What’s more, after the disaster it was proposed that ‘IAEA must create standards that compel member states to allow external inspections in order to limit the potential of an accident like Fukushima or Chernobyl from reoccurring.’39 At the moment this proposition seems to be unrealistic due to the nature of the IAEA. It cannot be a ‘watchdog’ for all its masters, even if member states are going to limit their sovereign rights in the field in question. Legal regulation on commissioning and decommissioning of nuclear facilities is very important. Nowadays, according to the NEA Long Operation Report, in 2011, 289 reactors in the world are more than 25 years old, and only 45 new units were connected to the grid in 2000-

38 WANO (n 31) 4. 39 Long JL, ‘Independent Unaccountability: the IAEA’s “Step Backward” in Regulating International Nuclear Reactor Safety Wake of the Fukushima Daiichi Disaster’ [2013] Suffolk Transnational Law Review 185. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Kirill Kozhevnikov International Atomic Energy Agency Action Plan on Nuclear Safety: on the way to improving international safety standards 101

2011. So, we could see that without life extensions, nuclear capacity would crash down in the next decade.40 This area of nuclear law requires appropriate legal decisions. The Action Planen courages all member states to improve the effectiveness of the international legal framework. Traditional legal instruments such as conventions and international treaties are only part of such framework. Undoubtedly, very important part of this system should be standards of safety. As experience has proven, these standards are effective enough, so they should be taken equally important instate nuclear practices.

Bibliography

Cooper M, ‘The Implications of Fukushima: The US Perspective’ [2011] Bulletin of the Atomic Scientists Drobysz S, A New Legal Tool for States: The National Legislation Implementation Kit on Nuclear Security (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20-23 October 2014) accessed 12 January 2015 Funabashi Y, Kitazawa K, ‘Fukushima in Review: a Complex Disaster, a Disastrous Response’ [2012] Bulletin of the Atomic Scientists Hughes LA, ‘The Role of International Environmental Law in the Changing Structure of International Law’ [1998] Georgetown International Environmental Law Review Johnson PL, Facilitating the Entry into Force and Implementation of the Amendment to the Convention on the Physical Protection of Nuclear Material: Observation, Challenges and Beneﬁ ts (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20- 23 October 2014,) accessed 12 January 2015

40 OECD NEA, The Economics of Long-term Operation of Nuclear Power Plants (December 2012) accessed 15 January 2015.

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— ‘The post-Fukushima Daiichi Response: The Role of the Convention on Nuclear Safety in Strengthening the Legal Framework for Nuclear Safety’ [2013] Nuclear Law Bulletin Jorant C, ‘The Implications of Fukushima. The European Perspective’ [2011] Bulletin of the Atomic Scientists Long JL, ‘Independent Unaccountability: the IAEA’s “Step Backward” in Regulating International Nuclear Reactor Safety in the Wake of the Fukushima Daiichi Disaster’ [2013] Suffolk Transnational Law Review Pelzer N, Does the Fukushima Nuclear Incident Require a Revision of the International Legal Regime on Nuclear Safety? (IAEA Ministerial Conference on Nuclear Safety, Vienna, 2011) Peters A, Global Constitutionalism Revisited International Legal Theory (2005) Prati G, Zani B, ‘The Effects of the Fukushima Nuclear Accident on Risk Perception, Antinuclear Behavioral Intentions, Attitude, Trust, Environmental Beliefs and Values’ [2013] Environment and Behavior Silye J, EU Initiatives Following Fukushima Nuclear Accident: Amending the Nuclear Safety Directive and Establishing the “EU Liability Regime” (Congress of the International Nuclear Lawyers Association (INLA), Buenos Aires, 20-23 October 2014) accessed 12 January 2015 Stoiber C, Handbook on Nuclear Law (International Atomic Energy Agency 2003)

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ESSAY

GAME OF THRONES: THE ONGOING DISCOURSE ON RELIGION AND STATE IN ISRAEL

(The Second Part)1

By Liana Voloch (Israel)

Author Student, Interdisciplinary Center Herzliya, Tel Aviv E-mail: [email protected] Abstract My main purpose in this essay is to explore a nature of the status quo agreement and examine main disputes regarding the status quo: unchained women (‘Agunot’), an exemption of the ‘Yeshiva’ students from mandatory military service; a separation of woman and man in buses; biblical prohibitions that have a direct effect on non-religious citizens, etc. The authorresearches a political and legal framework as a base of relations between state and religion. He analysessources of law in Israel and their evolution. Then the notion of ‘Jewish and Democratic state’ is discussed. The author thinks that a democratic liberal state model does not go together with Israel. Israel is considered as a special model of democracy, which is Jewish-Democracy. Keywords Israel, law of Israel, Status quo agreement, religion and state, sources of law, sources of law in Israel, religious education system

1 The first part of this essay you can find in (2014) 1 2 KULawR 235-246.

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TABLE OF CONTENTS

III. The Unique Model of the Status Quo ...... 104 A. The Exemption of ‘Yeshiva’ Students from Mandatory Military Service ...... 107 B. Marital Law in Israel ...... 110 C. The Shabbat ...... 115 D. The Kashrut ...... 117 E. The Religious Education System ...... 118 IV. As Israel Develops: Additional Status Quo Disputes ...... 121 A. Status Quo and the Feminist Angle ...... 121 B. Euthanasia in Israel ...... 125 V. Euthanasia, Religion and State: Israel and Italy...... 127 VI. Conclusion ...... 131 Bibliography ...... 132

‘Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the “wall of separation between church and state,” therefore, is absolutely essential in a free society.’ Thomas Jefferson

III. THE UNIQUE MODEL OF THE STATUS QUO

The status quo is a special agreement between religious and non- religious political groups in Israel, which dates back to the years before the state of Israel was founded.2 On behalf of orthodox organizations

2 G Sapir, ‘Religion and State in Israel - The Case for Reevaluation and Constitutional Entrenchment’ [1999] Hastings Int’l & Comp L Rev. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 105 the status-quo letter was sent to the temporary council of Jews in Israel in 1947, just one year before the UN declaration 181 was adopted. This document included the main requirements of the ultraorthodox community regarding the implementation of religion in the state law.3 The Letter covered four main subjects. The community demanded full responsibility as drafted in the letter: ‘A. Shabbat. It is clear that Shabbat will be the legal day of rest in the Jewish state. Permission will naturally be given to Christians and to those practicing other religions to rest on their weekly day of rest. B. Kashrut. All means should be pursued to ensure that every state-run kitchen for the use of Jews serve kosher food. C. Marital Law. All the members of the Executive appreciate the seriousness of the problem and the grave difficulties pertaining to it, and all the bodies represented in the Agency’s Executive will do whatever possible to satisfy the deep need of the religiously observant in this matter, lest the House of Israel be divided in two. D. Education. Full autonomy will be guaranteed to every education network (incidentally, this policy already exists in the Zionist Federation and Knesset Yisroel) and the state will not infringe on the religious philosophy or the religious conscience of any part of the Jewish people. The state will naturally determine the minimum requirement ofcompulsory studies in Hebrew language, history, science, and so forth, and will supervise this minimum, but will allow full independence to each network to educate according to its outlook and will avoid any injury to the religious conscience.’4 This letter has no official stamp. It is a special kind of agreement, which has never been officially adopted. Even so, it was regarded as the fundamental agreement in the relevant issues, and later on was borrowed by several laws, including the Hours of Work and Rest Law of 1951, recognizing the Shabat as the official day of rest in Israel;5 The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of

3 BE Daphne, ‘The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?’ [2003] Mishpatim 403. 4 Available at: http://strangeside.com/israels-status-quo-agreement/accessed 19 November 2014 5 Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51).

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19536provided full and unique responsibility on the matters of personal status of Jews to the Rabbinical Court; and the State Education Law of 19537that guarantees separate and autonomous educational system for orthodox Jews. Israel has also established several religious institutions. The religious councilsexist in different regions of Israel and providereligious services for the communities. Another institution is the Chief Rabbinical. It consists of two chiefs (Ashkenazi and Sefaradi) and a central council. It enjoys the jurisdiction in deciding upon Kashrut matters as established in the conformity with dietary law.8 This provides the council monopoly over the kosher food in Israel, which involves a great amount of power since most of the Israeli population tend to eat kosher food. The acceptance of a non-formal agreement such as the status quo agreement that has no legal grounds has two different ways of explanation.First, the question of balance between law and religion is so complicated that a formal legal agreement could impose a threat for the stability of the Israeli society.9 The second one is about a conflict between the state and religion in Israel being irreconcilable; therefore the status quo is the only way to achieve a compromise.10 It should be taken into account that the status quo has changed a lot. However, some of the orthodox Jews believe that the best way to handle the problem of the relation between religion and state is to strictly preserve the status quo while the others think that it is necessary to challenge the status quo, since it is not compatible to the a dynamic situation in Israel.11 I would like to discover the influence of the status quo agreement, focusing on the main problems directly affected by it: the exemption of

6 Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952-53). 7 State Education Law, 5713-1953, 7 LSI 113 (1952-53) [hereinafter State Education Law]. 8 The Kashrut (Prohibition of Deceit) Law, 37 L.S.I. 147 (1982-83). 9 Sapir (n 2) 625. 10 N Zucker, ‘Secularization Conflicts in Israel’ in Donald E. Smith (ed), Religion and Political Modernization (1974). 11 Sapir (n 2). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 107

‘yeshiva’ students from military service, the personal status in marital law, the Shabbat, the Kashrut laws, the orthodox educational system; as well as their implication upon the right for freedom of religion.

A. Exemption of “Yeshiva” Students from Mandatory Military Service

The main idea of the status quo – even being notspecifically mentioned in the letter – is de facto exemption from the mandatory army service that is granted to the orthodox ‘yeshiva’ students. ‘Yeshiva’ students are the ones who are recognized by the state as belonging to a certain religious institute.12 Therefore, in order not to interfere their studying process the state agreed to postpone their mandatory service. According to the Defense Service Law of 194913, every male over 18 has to do three years of mandatory military service, whereas every female has to serve for two years. However, this law did not concern ‘yeshiva’ students. Prime Minister David Ben-Gurion decided to release the ‘yeshiva’ students from the military service. In the beginning it concerned a small group of people. During the years, more and more orthodox declared themselves as ‘yeshiva’ students. As a result they served in the army for less than one year, or did not serve at all. According tothe official statistics of the Knesset, the number of ‘yeshiva’ students released from service in 1948 was 400; by the 1990’s, this number increased and reached 61,000.14 In the beginning, the idea was to support the orthodox community but as a result became a subject for the legal disputes. Since the beginning of the 1970’s, the High Supreme Court has been constantly dealing with petitions by non-religious parties, demanding equality in terms of military service, and asking the Minister of Security to use his legal power in order to stop the release of the ‘yeshiva’ students.15

12 Sapir (n 2) 624. 13 Defense Service Law, 5709-1049, 3 LSI 112 (1949). 14 HC 3267/97 Rubinstein v Minister of Defense, 52(5) PD 481 (1998) (Hebrew). 15 Daphne (n 3).

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On the other hand, the ultra-orthodox people pretended to have a right to protect their society from entering non-religious world but that if the orthodox had to serve in the army they would be exposed to this world, which would have a substantive threat to the orthodox community. They also claimed that learning and analyzing the ‘Torah’ was traditionally Jewish, therefore they were having a different but nevertheless important role in the Jewish state since they believed that their prayers kept the Israeli soldiers safe.16 Another opinion was that in order to defend freedom of religion the orthodox should be exempted from military service but there is a fear of becoming orthodox only in order to be exempted. But being a ‘yeshiva’ student should mean following strict every-day rules as well as avoiding a comfort of non-orthodox life.17 These contradicting claims from both sides were lengthily examined by the High Court of Justice. At first, the Court rejected most of the claims on theground of the Court’s reluctance to interfere in the matters concerning the ‘political sphere’, as a part of the democratic general principle of separation of powers. In the past, the Court accepted only those petitions in which petitioner would be affected directly by the decision. In the case of Beker V. The Minister of Defense, the petitioner claimed to have a personal affect since he was student as well, but had to serve a full military service.18 The court rejected the petition on the ground of the fact that the petitioner had no ‘special interest’. Until 1980’s a number of petitions were declined on the same grounds. In the 80’s the situation changed. As I mentioned in former chapters, these years symbolized a wind of change in the judicial system, moving towards judicial activism. This was expressed also in the new rulings regarding the ‘yeshiva’ students. In the ruling of the Court as delivered in Resler V. Minister of defense,19 a ‘Public Petitioner’ was allowed to file a petition to the High Court of Justice. This led to a

16 ibid 233. 17 G Sapir, ‘Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant Normative Considerations’ (2001) 9 Plilim 217. 18 HCJ 40/70 Baker v Defense Minister 24(1) PD 238. 19 HC 6298/07 Resler v Knesset (Feb. 21, 2012), 2, Nevo Legal Database, (by subscription; inHebrew). [Hereinafter Resler]. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 109 wave of numerous petitions, and forced the legislator to confront the problems. In order to react to the questions raised by the public petitioner’s in the court the Tal commission was formed by the Knesset in 1999. The goal was to create a new settlement regarding this dispute. The solution of the committee was the following: the ‘yeshiva’ students should continue to be exempted from the service during the first 4 years; after that period they have to decide, either to stay in the ‘yeshiva’ and continue dedicating their lives to learning Torah, or to try to get some regular job. If they decide to continue working but not to go back to the ‘yeshiva, theyhave to go through a short military service and then will be allowed to go back to work The main purpose of this settlement was to respond to the claims against the orthodox people as the ones taking advantage of religion in order to avoid public duties. In 2002 the recommendations of the commission were formed into a temporary law (‘Horaat Hashaa’). ‘Temporary’ means that it should be reviewed in 5 year period. In 2012 the Court ruled Tal law unconstitutional. The judges, almost unanimously, claimed that the law was violating and contradicting the Basic Law of Human Dignity (1992).20 However, they did not claim that the purpose of the law is unconstitutional, whereas the law did not achieve its goal and a new settlement should take place.21 Judge Rubinstein referred to freedom of religion in his ruling: “Israel is a Jewish and Democratic state therefore the Court is obliged to adhere to the principle of freedom of religion. Prohibition a religious Jew to study the Torahviolates Human rights as mentioned in Basic Law: Human Dignity (1992). It is important to keep balance between freedom of religion and the value of equality in a democratic state.”22 After some investigation on the subject of mentioned balance the court concluded that the Tal law did not complete its targets since the right to equality was discriminated. The law was declared unconstitutional and formally canceled. However, it has not affected the ‘yeshiva’ students. The

20 Basic Law (n 20). 21 Resler (n 57). 22 ibid 83.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 110 KUTAFIN UNIVERSITY LAW REVIEW government continues to financially support them. One of the reasons for that is the fact that the orthodox have a strong political power. On the one hand the government cannot allow the orthodox parties to turn against it, and on the other - cannot ignore the Court’s decision. This position of the government is also a part of the status quo which became a part of the legal and political culture of Israel. No any government has tried to provoke the status quo so far since it would be considered as an infringement of the long-term agreement. Another interesting idea was mentioned by Judge Mishael Cheshin pointing out the connection between the ‘yeshiva’ students and the Israeli society: ‘we shall remind ourselves; “yeshiva” students are involved in the Israeli social life. I wonder how it is possible that they are exempt from mandatory military service but still manage to deliver their representatives to the Knesset and the government in order to decide about the matters of life and death and other issues that directly affect those who are doing the mandatory military service’.23 This emphasizes the problem of separation between religion and state, even more since for many Israelis military service mean being a loyal citizen of Israel.

B. Marital Law in Israel

A historical review of the marital law in Israel goes back to the ottoman law, as mentioned in the first chapter. The ottoman system granted autonomy to each religious community on the matters of marriage and divorce.24 As it was mentioned before the nature of having a religious autonomy on issues of personal status is one of the reasons why Israel could not be conceived as a democratic state and what’s more, cannot be perceived as an illiberal one. The exclusive jurisdiction overmarriage and divorce matters belongs to Rabbinical Courts. Both religious and civil courts first of all apply the religious law. The Rabbinical Courts Jurisdiction Law (1953) states that: (1) Matters of

23 HCJ 6427/02 Movement for Quality Government in Israel v. Knesset PD 61(1) 619 (2006). 24 G Sapir & D Statman, ‘Religious Marriage in a Liberal State’ [2008-2009] Cardozo L Rev 2855. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 111 marriage and divorce of Jews who are Israeli citizens or residents will be under the exclusive jurisdiction of the rabbinic courts. (2) Marriage and divorce of Jews will be carried out in Israel according to the law of the Torah.25 This law obtains the Jewish law autonomy upon marriage and divorce, and imposes two illiberal consequences. First, a Jew is not allowed to marry a non-Jew. Secondly, the Jewish law is patriarchal that violates fundamental right to equality for women.26 Section two also implies that all Jews in Israel must be married according to religion that means that all Jews have to be married with the presence and authorization of an orthodox rabbi. Also, before wedding women have to make a purification procedure in the Mikveh (a pool), completely naked, supervised by an orthodox woman which violates the right to privacy.27 Although according to the general principals the Rabbinical Courts have anexclusive competence over issues relatingto marriage and divorce, couples are entitled to choose in a pre-marriage contract a Civil Court for their case. What’s more, a couple can be divorced in the Rabbinical Court, but property issues can be solved in the Civil Court. If one of the parties desires, he or she can announce that he or she wants the property issues to be ‘attached’ to the claim for divorce in the Rabbinical Courts. This creates a phenomenon called ‘the chase for jurisdiction’. In most of the cases a man prefers‘to stay inside’ the Rabbinical Courts jurisdiction since it is a patriarchal system, which is alwaysin favor of a man. The Knesset made an attempt to prevent this situation. Therefore, according to Article 3 of the Rabbinical Courts Law claims must be ‘honest’, meaning to make law process easier and to reduce its costs. The ‘honesty’ of the claim, however, is a very problematic demand since the burden of proof is almost unreachable. Rabbinical Courts are the ones to decide if the claim was honest. Since they have a clear motivation to strengthen their jurisdiction they approve the ‘attachment’ in the most of the cases. High Court of Justice had to intervene in order to diminish the damage caused by the ‘honesty’ exam, so in the case of Bavli v. Grand Rabbinical

25 Rabbinical Court Jurisdiction (Marriage and Divorce) Law 5713-1953, S.H165. 26 Statman (n 62) 2870. 27 ibid.

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Court (1994) the Court declared that Rabbinical Court had to decide the matters of property according to the general principle of equality between spouses.28 The Rabbinical Court, however, reacted stating that the Jewish law has an unrestricted monopoly and is not obliged to follow any of general principles.29 Another case worth mentioning is the one of Funk Shlezinger v. Minister of Interior.30 This case deals with a Jewish woman and a Christian man who got married in Cyprus within a civil marriage procedure. Then, they applied to Ministry of Interior in order to be enlisted as a married couple in a registry of Israeli. The officer refused to register them since they weren’t married according to Israeli law. The couple filed a petition claiming to have a right to be registered in Israel as a married couple in the population registry. As a result Ministry of Interior was obliged to register the couple. According to the court, the registration is a technical procedure that does not involve any religion; it does not affect the autonomy of the Rabbinical Courteither. However, this decision was criticized by the orthodox parties since it did not concern only technical procedure. It meant that marriage between Christians and Jews were recognized in Israel. Nevertheless, even though civil marriage gained some recognition by the state, they still cannot be entered into in Israel; one must travel abroad to get married. This means that Israel is relying on other jurisdictions in those matters, infringing its citizens’ freedom and right to marriage. The situation of non-marital cohabitants is different. The Israeli legal system created a possibility for the unmarried couples who share a household to claim their rights in case of separation. This option does not create any further burden on the couple, so it is becoming a solution for those couples who want to avoid the rabbinical system.31

28 HCJ 1000/92, Bavli v Grand Rabbinical Court [1994] IsrSC 48(2) 6. 29 Dikhovsky, The Principle of Common Ownership-Is it the Law of the Land? (Techunim 1998) 18. 30 HCJ 143/62 Funk Shlezinger v Minister of the Interior [1963], Isr SC 17, 225. 31 ibid 2878. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 113

The impact of the constitutional revolution on marital law

As it was mentioned before, the constitutional revolution made by Aharon Barak changed the face of the legal system in Israel. The Rabbinical Court – being a part of this system – faced with a new threat of autonomy. Declaring the superiority of Basic Laws, the High Court of Justice ordered the Rabbinical Courts to apply the principles guaranteed by basic laws. However, this was and still is a hard task for the Rabbinical Courts. The Judges of the Rabbinical Court have to consider a balance between religious and constitutional law. It is worth mentioning ‘Mesoravot get’ and ‘Agunot’ phenomena. ‘Mesoravot get’ relates to women who were refused a divorce by their husbands for no reason. As for ‘Agunot’ phenomenon, it refers to women whose husbands cannot give a divorce because they are absent or not in a state of ‘clear mind’. In the last years, the term ‘Aguna’ is applied also for ‘Mesoravot get’ women.32 These two situations obviously violate basic human rights, since a woman depends on a man’s decision and mercy. The Rabbinical Court is also involved in a conflict. On the one hand, it is expected to apply harsh sanctions including imprisonment of men who refuse to divorce their wives and on the other – the Court is obliged to observe ‘Halcha’ laws, which state that a divorce ought to be given voluntarily and any coercion is forbidden. The Israeli legislator has tried to settle the conflict. According to Article 6 of the Rabbinical Courts Law, if a mandoes not follow the Court’s decision to divorce within the period of six months, the Civil District Court is allowed to imprison that man.33 This was accepted by orthodox Rabbis, since they agreed that imprisonment nowadays is not as harsh as it was in the old days and therefore would not be considered as coercion.34 Another problem that arises is that the judges of the Rabbinical Court do not tend to give an order to coerce a divorce that easily; they usually use their right to only “recommend” a divorce. This is

32 YS Kaplan, Basic Law: Human Dignity and Liberty in the Rabbinical Court: The Balance Between Conflicting Jewish Values and Conflicting Human Rights (Kiryat Mishpat, Hebrew 2009) 145. 33 Rabbinical Court Jurisdiction (Marriage and Divorce) Law (n 64) Art. 6. 34 Kaplan (n 32) 177.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 114 KUTAFIN UNIVERSITY LAW REVIEW actually the most problematic issue since giving this coercive order can bepossible only under one of the following circumstances: (a) Incurable health conditions of a man (b) Religious conversion (becoming not a Jew anymore) (c) Cheating on his wife (at least two witnesses are required) (d) Physically violence towards his wife (e) Failure to give a financial support to his wife. What’s more, the court demands a woman to show so much proof that sometimes it becomes impossible for her. Another solution to avoid coercion is to force a man to pay a woman ‘Mezonot’ (financial support), as according to ‘Halacha’ the man has to support his wife.35 Another right which is infringed by the court’s decisions and therefore ought to be mentioned is the right to ‘Marital Freedom’. All Judges of the High Court of Justice agreed that the right to family life is enshrined in Basic Law: Human dignity and Liberty.36 The basic element of this right is freedom to make his or her family life.37 Some judges even claim that the right to marry and enjoy family life is an integral part of the fundamental right to life, declaring this right as a ‘raison d’etre’.38 However, depriving the right to divorce and remarry holds an unconstitutional act. What’s more, it violates the constitutional right to freedom of basic life choices.39 At the end we can observe high tension between the ‘Halachic’ laws and Basic Law of Human Dignity. On the one hand ‘Mesoravot Get’ is experiencing equality with man. On the other hand forcing imprisonment of man infringes his right to freedom of movement. Therefore, the balance test has to apply in each particular case. An additional and innovative solution to the ‘Agunot’ problem is filing a tort lawsuit against the husband. A lawsuit like that can be justified in tort’s law as a ‘corrective justice’ since a

35 ibid 199. 36 HCJ 3648/97 Stamka v Minister of Interior [1999] lsrSC 53(2). 37 KC Yeffet, ‘Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women’s Marital Freedom’ [2009] Yale Journal of Law and Feminism 441. 38 ibid 463. 39 ibid 465. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 115 compensation is usually used to declare that an act was wrong, whereas under corrective justice the focus remains solely on the two parties of the tort.40 The reason for this justification is that a public declaration would threaten the status quo. A further justification for using torts law is deterrence; this claim is persistent with the economic argument as especially in ‘Agunot’ cases.41 The innovation about torts law is the fact that even if the divorce is only ‘recommended’, a woman can still use the tort’s law because it has no demand of coerced divorce. The first lawsuits in Israel were filed in 2004 and regarded only coerced divorce. However, starting from 2008 the women who were only recommended to get a divorce have managed to bring their case to the civil court and even get compensation. Judge Wiezman, one of the first judges who gave this kind of compensation, used to say that if a rabbi recommended to divorce, there should be a ‘Lighthouse’ for the civil court to decide whether the divorce is justified and should still take place.42 It still remains important whether the civil court would be able to acknowledge a lawsuit in case if the Rabbinical Court does not acknowledge even a recommendation for divorce. It is claimed that the negligence suit should be filed as an independent cause, regardless the Rabbinical Courts decision. This definitely somehow diminishes the autonomy of the Rabbinical Court, and is going to be a subject to dispute in the next years.

C. The Shabbat

The Shabbat (Saturday) is the official holiday day in Israel according to the Law and Administration Ordinance.43 It also gives the non-Jewsthe right to enjoy their days of rest and holidays and establishes work and rest hours.44 As for the people of other religions

40 B Shmueli, ‘Tort Litigation between Spouses: Let’s Meet Somewhere in the Middle’ [2010] Harv Negot L Rev 195. 41 Calabresi and JT Hirschoff, ‘Toward a Test for Strict Liability in Torts’ [1972] YLJ 1055. 42 ibid 194. 43 Law and Administration Ordinance, 5708-1948, 1 LSI 7 (1948) (Isr.). 44 Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51) (Isr.).

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 116 KUTAFIN UNIVERSITY LAW REVIEW they can choose their holiday days according to the religion. The law prohibits an employer to disclaim employee’s right to have holiday days upon his/her religion. The religious parties were not satisfied with these laws; they demanded to enact a Shabbat law that would establish the centralized part of the Shabbat in the Jewish nation life, since the other laws did not mention it specifically. Their claim was denied.45 The main dispute in this regard concerned a conflict between the religion and the state and was about a demand to stop every businesses activity during Shabbat day. In 1987 the court decided that a municipal order to close cinemas on Shabbat is ultra-vires to the Knesset decisions.46 In the case of Horev v. Minister of Transportation47 the orthodox demanded to close an area with massive religious population for vehicles coming in and out. However, the area in question is one of the main streets in Jerusalem. Closing it would cause difficulties for the non-orthodox people who also live around it and drive during Shabbat. Eventually the court decided that during times of prayers the street would be closed, but not for the whole day Shabbat.48 About 20 years ago the secular community started to support the idea of having entertainment and commercial activities during Shabbat. It is worth mentioning that before everything had been closed. Nowadays many restaurants, coffee shops, cinemas and even malls are open. In fact this is a clear violation of the status quo. The non- orthodox Jews have gradually changed the reality of the first years in Israel; they claimed not to accept the ‘Religious Coercion’. In addition, they claimed public transportation to be allowed on Shabbat.49 The Shabbat is another proof of the wide gap between religious and non

45 DY Eliezer, Religion and Political Accommodation in Israel (Floersheimer Institute for Policy Studies 1999) 42. 46 Crim A (Jer) 3471/87 State of Israel v Kaplan et al., [1988] IsrDC 5748(2) 206. 47 HCJ 5016/96 Horev v Minister of Transportation [1997] lsrSC 51(4) 53. 48 Y Zilbershatz, ‘Freedom of Movement within a State’ (1998) 4 Mishpat U’mimshal (Hebrew) 793. 49 T Sasson, E Tabory, AD Selinger, ‘Framing Religious Conflict: Popular Israeli Discourse on Religion and State’ [2010] Journal of Church & State 662.

www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 117 religious communities in Israel. In a recent survey that was conducted by an Israeli newspaper it was shown that 73% of the Israeli would want public transportation to be allowed on Shabbat.50 However, the Shabbat is a symbol of Judaism and is a crucial part of the status quo. This is still a subject for public discussions.

D. The Kashrut

As it was mentioned above, the Rabbinical Institution has a complete monopoly over kosher food in Israel. It is the only ones entitled to give Kashrut authorizations to factories and restaurants. It is worth to be noted that until the constitutional revolution in Israel, it was prohibited to sell and import pork. The dispute over pork meat can somehow be compared to the dispute over crucifix in public spaces in the Christian world, since these disputes are not only about narrow religious issues but about religion in general and its role in the western society. It emphasizes the connection between religion and culture, and its place in the political and legal systems.51 In the Jewish culture, the prohibition of pork meat is fundamental since it is one of the prohibitions that are explicitly mentioned in the Torah. This prohibition is essential for understanding the Jews in the period of the diaspora since it created a clear distinction between them and the other nations (except the Muslims).52 However, it is quite uncommon that there are no any debates on this topic among the ‘Halacha’ commentators. The legal dispute about the pork meat dates back to the 1950’s. The first laws that prohibited distribution of pork were municipal ones. Up until the 1980’s, there was no any further discussion as most of the population respected this prohibition under the status quo agreement. What’s more, the hegemonic left winged party ‘Mapai’ruled in Israel since its foundation had no special interest in religious laws. However, the political revolution happened in 1977 – when the Likud, a right winged party won – changed the focus on the religion. It was commonly claimed that the Likudhad won because of the support of the orthodox

50 (Hebrew). 51 Daphne (n 3) 403. 52 ibid 413.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 118 KUTAFIN UNIVERSITY LAW REVIEW parties. But even then, no fundamental changes were made.53 The changing point lies as mentioned above in the constitutional revolution. An extra reason that gave a rise to the conflict was the immigration wave from the former USSR which brought approximately 1,000,000 Russian Jews to Israel, most of whom used to eat meat. As a result a lot of un-kosher stores were opened in the cities with big immigration community. However, it’s never easy to find a right balance between freedom of occupation, allowing citizens to open stores and sell any productsthey want, and interests of the religious community.54 In her essay, Daphna Barak Erez suggested two perspectives. (1) The restriction should be localized and applied only in those areas that have large religious population. (2) If taking into consideration that not eating pork meat is an essential part of the Jewish nation symbols and cultures, there should be a whole new set of arguments to balance. The Court has yet to decide on those grounds but considering the fact that pork meat has been distributing and consuming in Israel for a few years, in reality the decision has already been made.55

E. The Religious Education System

As it was stated in the status quo, the orthodox claimed to have an autonomic education system. In 1950 it was decided to exempt several orthodox institutions from the Compulsory Education Law.56 In fact, that meant that they did not have to include ‘core studies’ in their curriculum: such as mathematics, foreign language, sciences, etc. As a result, in most orthodox schools, mathematics and Hebrew are being taught in a basic level, while English is not being taught at all.57 At first, the number of students followed the orthodox system

53 ibid 404. 54 ibid 458. 55 ibid 472. 56 State Education Law, 5713-1953, 7 LSI 113 (1952-53) (lsr.). 57 MC Eliya, ‘Self Defending Democracy and Democratic Education in Ultra- Orthodox Jews Schools’ (2008) 11 Law and Government 367. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 119 was quiet insignificant. However, with the strengthening of orthodox parties, nowadays the orthodox take 26.5% of all education system in Israel.58 The orthodox system separates boys and girls into different universities and according to the age of the students. These universities are recognized by the Ministry of Education as exempt ones, so the supervision upon them is different from the regular universities. The orthodox young women have a better education in high schools, as a woman is considered to be the one who should support her future husband when he is in Yeshiva studying ‘Torah’. The orthodox young men, however, only study religious subjects. This process of detaching a man from the modern world makes him enter the world of Torah enthusiastically and wholeheartedly.59 Although in the last few years some of the Rabbis of the communities have allowed their students to study technological studies after they graduate from the Yeshiva high school, they still have a huge knowledge gap since they do not speak English and their level of mathematics is the level of an elementary school student. What’s more, it is expensive to study in technological colleges but most orthodox students have financial problems since they do not work and mainly are supported by social protection.60 However, the main problem, regarding the religion and the state, is still the ignorance of democratic values by orthodox universities. According to the statistics 1 of 4 young people today is educated within this system, so that contains an actual threat to the Israeli democratic society. Also, these young people are not exposed to other groups since they are in a separate system, so they do not experience the ‘hidden curriculum’ that provide the opportunities to interact and to live in a pluralistic environment.61 The lack of democratic education leads to harsh results in the orthodox community, ones that democratic state could not stand. In 2009 a famous petition was filed to the High

58 ibid 387. 59 ibid 389. 60 Y Lupo, A Shift in Haredi Society: Vocational Training and Academic Studies (Floersheimer Institute for Policy Studies 2003). 61 N Rothenberg, ‘Mutual Education Core Studies for The Children of Israel: Overcoming Obstacales’ in Dan Inbar (eds), Towards Educational Revolution (Hebrew 2005)

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Court of Justice; it was the case of ‘Noarka-Halacha’ v. Ministry of Education.62 During the years, many complaints about a discriminative policy against Sepharedic were sent to the Ministry of Education. This policy unofficially limits a number of Sepharadic students up to 30% of all students. A good example is Beit Imanuel High School, an orthodox religious school for girls. In 2007 the school was separated into two different parts. The purpose was to separate regular and Sepharadic students. Although the students and their parents were ensured that the teachers were not going to be replaced, indeed they were, together with the head of the school. Some of the parents of the Sepharadic girls filed a complaint to the Ministry of Education, claiming that the separation creates prohibited discrimination on ethnic grounds. However, after a legal adviser appointed by the Ministry of Education made a revision, he did not find any discrimination since this kind of separation is based only on educational needs. On these grounds, a petition to the High Court of Justice was filed. The petitioners claimed that the separation was based on unacceptable differentiation between the girls. The court demanded the Ministry of Education to provide the explanation. Eventually, the school had to remove the walls between itstwo parts. At the same time it created harsh rules regarding the ‘Hassidic’ study plan, among other things demanding from the Sepharadic girls to change their prayers pronunciation to an Ashkenazi one. Judge Levi balanced the right to equality against the freedom of practicing religion based on ethnical relevance. He concluded that the school and the Ministry of Education had failed in preventing this kind of discrimination.63 This is a result of the independent educational system, which is being supervised by the Ministry of Education, allowed clearly antidemocratic phenomenon to occur. Having examined the tension between the religion and the state in the light of internal problems of the orthodox community, I would like to mention an attempt of the non-religious system to implement the democratic values in separate educational system. One of the attempts was examined in the case of Union of Teachers in High Schools,

62 HCJ 1067/08 NoarKa’Halacha v Ministry of Education (decision released 6 August 2009). 63 ibid para 29. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 121

Seminars and Colleges V. Minister of Education. The teachers filed a petition asking a court to oblige the Ministry of Education to create a special program for the orthodox schools in order to make them include ‘core’ study plan like in non- religious schools.64 The Court accepted the petition, however having given three years to the Ministry of Education for the program formation since it is supposed to be delicate and gradual process that corresponds to democratic values. But the current situation after 13 years this decision has been made is that the plan for ‘core’ studies has been created only for elementary school, but not for high school. What’s more, even elementary school does not give any democratic education. So, the children educated within the religious system are not exposed to democratic values, therefore becoming a threat to the democratic society. The next step for the Israeli non-religious community is to decide whether it respects certain democratic values such as freedom of religion, taking into account that the same values risk to hurt the already questionable stability of the Israeli democracy.

IV. AS ISRAEL DEVELOPS: ADDITIONAL STATUS QUO DISPUTES

A. Status Quo and the Feminist Angle

The discrimination of women in Israel originated from both ‘Halacha’and tradition. Orthodox Jewish law considers the man to be absolutely dominant. Women were not allowed to participate in military activities, receive public leader roles, not allowed to actively participate in religious ceremonies or even hold religious administrative positions. However, during many years women in Israel did not see themselves as being discriminated at this point since they did take active part in the process of ‘building the Jewish State’, but in fact they weren’t equal to men since their role was typical feminine like raising the kids, cooking and working as teachers and nurses. But in the mid 1970’s feminist wave began in Israel when women realized that they were excluded

64 HCJ 10296/02 Union of Teachers in High Schools, Seminars and Colleges v Minister Of Education (2004) Isr SC 59(3) 224.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 122 KUTAFIN UNIVERSITY LAW REVIEW from the masculine sphere. During ‘Yom Kippur’ war, the women took men’s roles since their husbands were suddenly taken to the military. Feminist voices more and more demanded recognition of female discrimination and gender-based understanding of the society.65 It is worth mentioning two recent claims regarding the equality between genders. ‘Neshot Ha-kotel’ (the women of the Western Wall) is a group of religious women that imitate the Jewish prayer habits preserved for men only. They are usually wrapped in a ‘Talit’and pray in groups in a loud voice. Their purpose is to redefine women in the patriarchal religious sphere. They demand equality within the border of the orthodox community. They are concentrated around Jerusalem Western Wall where women are not allowed to pray as the men do, as it is the central and significant place for the Jewish religion. However, it is worth mentioning that according to the ‘Halacha’ it is not forbidden for women to pray in the same way as men do; it is just not normatively acceptable by the orthodox community.66 The strongest reaction from the rabbis in the orthodox community is the group prayers. Talmud says that a woman should not carry her voice in the open, in order to keep her modesty and to prevent her from acting in a sensual way (for example: singing that might provoke sexual reactions). In order to protest against that on 9 December, 1988 a group of women made their first group prayer in front of the Western Wall. They were yelled at, attacked by the men who hit and threw different items to them.67 The western wall is protected by the Protection of Holy Places Law68 which states the following: ‘The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the

65 H Herzog,‘Israel’s Road to Feminism 1973-2000: Analysis’ in Rabinovich, Itamar and JehudaReinharz (eds), Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present (Brandeis University Press 2008). 66 F Raday, ‘Claiming Equality in Religious Identity – the Case of the Women of the Western Wall: a Supreme Court’ [2007] Hamishpat (Hebrew) 10. 67 ibid 13. 68 Protection of Holy Places Law, 5727-1967, 21 LSI 76 (1967) (Isr.). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 123 places sacred to them or their feelings with regard to those places.’ Therefore the western wall is a holy space, and is a subject to public law. As a reaction to a junction that was published by Rabbi Gatz which prohibited women practicing public prayers, the women of the western wall filed a petition to the High Court of Justice claiming to remove this prohibition. They claimed that the junction violated their right to practice their religion, the principle of equality and freedom of movement. The court rejected the petition, stating that the government had to appoint a committee in order to find a solution which would balance between the freedom of movement and male- orthodox prayers feelings. The government reacted to this request and several committees were appointed. After several deliberations it was agreed that the women could pray, not in front of the Western Wall but in an archeological place close to it. The women turned to the court once again. The court concluded that the government had not found an acceptable solution since praying in a different place is not a proper alternative.69 The court ordered the government to assign women’s right to pray in the Western Wall within six months. This caused a political crisis. The orthodox parties proposed to adopta law that would prohibit any kind of non-orthodox rituals in front of the Western Wall and surroundings. According to this law, a woman entered that area, would get seven years of imprisonment. In order to avoid tensionst he legal advisor of the government asked the court to change its decision which is considered as a very unusual act of the legal adviser. Due to the political chaos the court decision created and political interests regarding the maintenance of the status-quo, the court delivered a further decision.70 Eventually it was stated that only if the government was not able to turn the alternative place into a decent prayer’s area in one year after the Courts decision, the women would be allowed to pray in front of the Western Wall. The actual meaning of the decision is that in fact the court supported the estrangement of the

69 HCJ 3358/95 Hoffman v Director General Prime Minister’s Office, 54(2) PD 345. 70 FHC 4128/00 Director General Prime Minister’s Office V. Hoffman, 57(3) PD 289.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 124 KUTAFIN UNIVERSITY LAW REVIEW women from the Western Wall. After that decision, some construction works were made at the archeological place in order to allow pray there. This decision puts in question the recognition of the women’s freedom to perform religious rituals in Israel. The court avoided the discussion in terms of the gender equality, concentrating on values of religion. The only judge delivered an opinion on equality was the judge Menachem Elon who was considered to be the representative of the Jewish Law in the court. He concluded that the Western Wall was not the suitable place to practice the value of equality since the risk of hurting the orthodox feelings and rituals was too high. Yet again, the political pressure of the orthodox parties and the lack of unity among the non-orthodox parties supported to preserve the status quo in terms of strong general principle of equality in the Israeli Jewish democracy. Another example of gender inequality in Israel is the separationof space in public transportation for orthodox. In July 1997, in order to encourage a population to use public transport, the Ministry of Traffic adopted a policy of sex segregation in several lines which mainly serve for the ultraorthodox in Jerusalem and Bnei Brak, both cities with high concentration of this population. The arrangement was to allow men to enter and sit in front, while the women had to enter from the back of the bus and remain sited there. It is worth mentioning that this committee included only one woman among its sixteen participants, and that there were just few ultraorthodox representatives.71 The Israeli Women’s Network appealed to the High Court of Justice,72 claiming that the policy appeared to be a discrimination against women and violate the principle of gender equality. The state denied the networks allegations, stating that the arrangement was to the overall satisfaction of the passengers and the members of the committee. Another argument was that the orthodox women themselves are fine with the arrangement since it helps them to practice their own beliefs of modesty and the role of the women according to ‘Halachic’ law. Three years after the appeal, the network was convinced by the High Court of Justice to dismiss the appeal. As in the case of the Western Wall prayers, the court again declined to use its power in order to deal

71 ibid (n 108) 363. 72 Israel Women’s Network appeal to the High Court of Justice in H.C. 5079/97. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 125 with issues regarding religion. It is clear that the court also takes into consideration the maintenance of the status quo arrangement even in terms of marginalization upon the women’s physical and geographical space. A different point of view was suggested by Alon Harel.73 Harel examined the bus lines with separated seats for men and women from the perspective of moral and political theory. Harel claims that some ultraorthodox women support this practice since it allows them to avoid the discomfort of being harassed by men. This might create a perfect situation when they could share their personal experiences concerning marriage or even sexual life without the hazard of being heard and eventually hated by the men since the society they live in is very strict.74 It also says that Orthodox Judaism still has a belief that women and men are fundamentally different, so it can be claimed that the democratic value of respecting the culture of the minorities up to some extent is necessary.75 Finally, Harel suggests a different solution: to make the separation on right and left side of bus. The author does not believe that this way would be accepted in the religious community, however, believing that Harel’s point of view makes non- religious population think.

B. Euthanasia in Israel

Euthanasia is not very common phenomenon being too far from the Judaism spirit. ‘Halacha’ position in relation to the question of euthanasia is not extensively discussed in the Talmudand other Jewish commenters’ books. However, the question can be discussed in terms of human life value under a view of Jewish law. ‘Halachic’ view is that human life cannot be rated; that a man has to rely on God’s salvation. The ‘Halacha’ does not make any difference between a murder out of

73 A Harel, ‘Benign Segregation – A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community in Israel’ [2004] African Journal on Human Rights 20. 74 ibid 84. 75 ibid 70.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 126 KUTAFIN UNIVERSITY LAW REVIEW rage and a murder in state of despair.76 In terms of euthanasia, the Jewish interpretations observe the ‘sanctity of life’. This ‘Halachic’term almost never appeared in rabbinic literature. For Judaism sanctity of life has a very important value, it mainly means fulfilling the will of the God understanding that it is beyond our comprehension. Therefore, this concept allows interpret the euthanasia, prolonging life in an artificial way, as not respecting God’s will. However, there is a clear distinction between accelerating death and removal of artificial instrument that prolongs life: God does not desire a life that is supported artificially but also cannot allow an active acceleration just in order to prevent neither pain nor misery.77 Before Dying Patient Actwas adopted in 200578 the Court had reviewed two cases regarding the euthanasia. In the case of Shefer V. state of Israel 79 the appellant was diagnosed with an incurable genetic disease known as Tay-Sachs. The appellant’s mother using her guardian’s right filed a request for a declaratory judgment that declared that if the appellant got worse and she needed respiratory drugs, she would be entitled to refuse from treatment. The District Court rejected the request. The Supreme Court dismissed the appeal as well. In the Lubatzki case80 the son of 91 year old patient in constant coma state filed a petition asking to unplug his mother from the probe an artificial feeding device. He claimed that in the past the mother had said that she would not want to remain in a vegetative state, and wished not to be connected to devices that would prolong her life artificially. Supreme Court overturned the decision of the District Court holding that there was no sufficient factual basis that would demonstrate a desire of the patient to end her life. One of the main reasons for those dismissals was the protests of orthodox Rabbis and orthodox members of the Knesset, who denied the right to euthanasia appealing to religious motivation.

76 A Streinberg, ‘Euthanasia in the Light of the Halacha’ [1982] Asia (Hebrew) 424. 77 Y Kop-Yosef, A Patients Right not to Be Treated (Daat 2003). 78 The Dying Patient Law 2005, S.H. 330 accessed 19 November 2014. 79 CA 506/88, Sheffer v State of Israel, 48(1) PD 87. 80 CA 3031/99 Attorney-General v Lubetzky [May 30, 1999] (unpublished). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 127

The situation changed in 2001 when the court affirmed euthanasia for a patient who was in terminal state suffering from ALS disease. In 2002 the Legal Advisor of the Parliament stated that euthanasia in a terminal state should be allowed. This caused a great dispute in the Knesset and Israeli society. Orthodox parties and the Rabbis of the communities were appealing harsh complaints regarding this decision. After several years of the disputes, Israel enacted the Dying Patient Act in 2005. The law attempts to regulate medical care for terminal patients, based ‘on the values of Israel as a Jewish and democratic state’. There is a distinction between patients who are able to express their will and the ones who are not since they are in a hard physical or mental state. The law states that a will of the patient in a clear mind must be respected. In case if a patient who is not able to express his/her will, the law offers three options: (1) a will might be expressed in advance; (2) it can be given by an authorized representative on his/her behalf; (3) ethics committee of the hospital decides. This is actually the renewal of the law since all these options were not previously allowed. Regarding the doctor’s role, the law removed any responsibility concerning the approval or rejection of the request for euthanasia. The role of the physician should be to diagnose a patient, offer the best medical care and give full explanation about his/her state, either to a patient, or his/her family. The law prohibits any extermination assistance based on physician’s opinion only.81 Apparently the law recognizes the sanctity of life but allows the patient to decide only if he is in a clear mind. Menachem Elon, a judge of the Supreme Court known as the representative of the Jewish Law among the Judges, stated in his essay: ‘The balance in the issue of euthanasia is to find the middle way between Jewish Law and Democratic Law.82

81 Dying Patient Law, 2005, S.H. 330. 82 M Elon, ‘Modes of Halakhic Creativity in the Solution of Legal and Social Problems in the Jewish Community’ in Yitzhak F (ed), Baer Memorial Volume [Zion 44] (Hebrew 1979).

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V. EUTHANASIA, RELIGION AND STATE: ISRAEL AND ITALY

Italy is mostly a catholic country. 90% of the Italians declare themselves as catholic. However, only 30% declare themselves as religious and fulfill the obligation to go to a weakly mass. The cooperation between the Catholic Church and the state was established within the approval of the concordats. Like in Italy, most of the people relate to one religion but do not declare themselves as being ‘religious’.83 After the First World War, the Fascist party started a conciliatoriness policy towards the Catholic Church. It resulted in the Lateran Pact (concordat agreement) of 1929. The problem of Rome was resolved and the state of Vatican was founded. The fall of the Fascism and the establishment of the Constitution in 1948 changed a few of the concordat articles that contradicted to fundamental principles of equality and freedom of religion. Italy became more secular which was proved by enacting some acts that recognized the right to divorce (1970) and the right to abortion (1978).84 In 1984 the Lateran pacts were amended, and Catholicism was no longer described as the ‘religion of the state’.85 The approach of the Italian legal system is often called ‘positive secularism’. In one of the Courts rulings it stated that the principle of secularism implied the impartiality of law against all religions.86 Several articles of the Constitution protect freedom of religion and create the ground for relation between the state and numerous religious groups. Article 19 guarantees the freedom of religion: ‘Everybody has a right to freely profess his/her own religious faith in any form, individual or associate, to propagate it and to exercise it in private or public cult, provided that the rites are not contrary to morality’. There is no any article directly mentioning the term ‘secularism’ though.

83 S Colombo, Religion and State in Italy Compared to Israel – Institutional Aspects (MishpatVeMimshal,1997). 84 ibid 201. 85 C Panara, ‘In the Name of God: State and Religion in Contemporary Italy’ (2011) 6 Religion & Hum Rts 75. 86 ibid 80. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 129

However, the court considers secularism to be one of the fundamental principles of the Italian legal system. The court interprets the idea of secularism in a wider way than just from the perspective of freedom of religion. Every law should be consistent with secularism and freedom of religion, as they both are fundamental constitutional provisions.87 None of states implies complete secularism. With that being said, both states do have strong rules that were established by legislation and Courts judgments. The Israeli Declaration of Independence guarantees freedom of religion and conscience to its citizens. It was officially recognized in the 1994. The amendment to Basic Law ‘Human Dignity and Liberty: Freedom of Occupation’ states: ‘The purpose of this Basic Law is to protect human dignity and liberty, in order to establish the values of the State of Israel as a Jewish and democratic state’. When mentioned ‘the values of the state’ it remains unclear if the legislator meant to grant to the declaration of independence a constitutional status; but nevertheless we can consider freedom of religion to be a right that comes from the human dignity. In terms of euthanasia it is worth mentioning that in Italy there is no any law similar to the Israeli Law. A physician who decides to help an ill person to die will be considered as a murderer according to article 579 and 580 of the Italian Penal code.88 Nevertheless, two extraordinary cases were deliberated in Italian courts that created a lot of social disputes concerning state and religion matters. Piergiorgio Welby was in a terminal phase of muscular dystrophy. In 2006, he filed a claim to the Tribunal of Rome in order to oblige doctors to unplug a ventilating tube which kept him alive. The Tribunal dismissed the claim. Although according to Article 32.2 of the Italian Constitution ‘no man is obliged to undergo any health treatment except under the provision of the law’, the Tribunal stated that this right could not be enforced in this case, since the law does not provide any settlement regarding euthanasia particularly. However, on 20 December, 2006 a doctor agreed to unplug Welby. The doctor was prosecuted for murder

87 S Mancini, ‘Taking Secularism (Not Too) Seriously: The Italian ‘Crucifix Case’ (2006) 1 Religion & Hum Rts 179. 88 Panara (n 90) 81.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 130 KUTAFIN UNIVERSITY LAW REVIEW but was acquitted at the end since the judge pointed out that Welby had a right to refuse from the medical treatment.89 A young woman Eluana Englaro was involved in an accident and was staying in a vegetative state for 17 years. After several processes the Court of Cassation defined the artificial treatment as medical treatment, and stated that two conditions must be complied in order to stop artificial feeding: (1) the vegetative state should be irreversible; (2) the decision must be in accordance with the presumable will of the patient drawn from his early declarations, his personality and beliefs. In the case of Eluana both conditions were fulfilled.90 In Israel the dispute about euthanasia is not just a legal dispute; it is also a political dispute, and it was exactly the case of Eluana. In September 2008 Parliament claimed that the Court of Cassation had acted ultra vires and entered the legislator area. Furthermore, the regional administration of Lombardy (location of Eluana) forbade the suspension of the artificial feeding as the regional governor Formigioni, who is considered to be a conservative catholic, had described the act as ‘unimaginable’. Eluana’s father reacted by hospitalizing her in the city of Udine, in a clinic which was willing to host his daughter and suspend artificial feeding. However, the story became a national problem. Prime Minister Silvio Berlosconi initiated an act that immediately prohibited suspension of artificial feeding. The government started the examination of the law only three days later, but during those days Eluana passed away. The similarity between two countries is clear: both Catholicism and Judaism are based on a belief that’ each human life is a manifestation of God’.91 But not only the will of God plays role in that kind of disputes; it is a direct consequence of a conflict between religion and state in these countries. In Israel, there is a conflict inside the political system, between orthodox and non orthodox parties, as the Court stands to protect the fundamental right of the people. In Italy, the Court stands aside since state and religion are in cooperation but that is executed

89 Decision of the Judge of the Preliminary Hearing at the Tribunal of Rome 23 July 2007. 90 Court of Cassation (First Civil Division) Ruling No. 21748 16 October 2007. 91 NA Secara, ‘Has Italy Discovered Virgil? Utilizing the British Archetype to Create End-of-Life Legislation in Italy’ [2011] Cardozo J Int’l & Comp L 127. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 131 also just on behalf of political interests, since the Catholic parties are strong and stable in Italy. For the meanwhile, people who face this poor situation have to turn to a solution of ‘death tourism’, meaning traveling to other countries in order to practice their fundamental right of freedom of choice.92 It is worth mentioning the Italian Judge AmedeoSantosuosso who states: ‘As for myself, a Judge serving in a State Court and having sworn to uphold the Italian Constitution, I respect religious beliefs. But, in cases where the law conflicts with religious beliefs, I must give priority to the Constitution and laws which allow everybody to make choices according to their religious, moral, and philosophical beliefs, whatever they may be’.93

VI. CONCLUSION

I began the essay with a quote of Thomas Jefferson, explaining the difficulty or even impossibility of religious values to coexist with democratic values in the state. I believe this essay contains enough facts to prove this saying. Nevertheless, the orthodox community has managed to be a part of the Israeli society, at the same time maintaining their strict religious rituals and way of life. One of the important questions that this essay brings upon is the necessity to keep Israel as a democratic state while the religious community ignores democratic values but remains an active player in the public sphere. It might be suggested that in order to protect itself, the democracy should limit the power of the orthodox parties in the Knesset. Against this argument, I would also suggest that the orthodox minority should be vital to the Israeli democracy; since these are the anti-democratic parties that eventually strengthen democracies. Observing the peculiar status-quo agreement, I have shown that it affects life of every Israeli citizen, in a direct and indirect way. The everyday lives of Israelis are directly affected by status quo agreement regarding the Shabbat and the Kashrut. What’s more, moral social

92 ibid 164. 93 A Santosuosso, ‘End of Life Decisions in Italy and in Europe’ in Selected Publications of the International Seminar ‘Matters of Life and Death: religion and Law at the Crossroads’ (Boston College Law School 2008) 37.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 132 KUTAFIN UNIVERSITY LAW REVIEW disputes have been widely examined by the Israeli society regarding the exemption of the ‘yeshiva’ students, the women of the western wall, separation in public transportation, euthanasia, etc. As Israel became less religious and more modern, the non-religious majority claimed to change the status quo and regarded it as a coercive agreement by nature. A signiﬁ cant development in this discussion was been made by the constitutional revolution, eventually changing the ‘rules of the game’. Now more than ever, the dispute is going from behind the scenes to the main stage; the cases that have been observed in this essay are the tip of the iceberg. On the one hand, Israel is adopting more democratic values. On the other hand, one can consider that it is also becoming less tolerable to the orthodox minority therefore undermining democratic values. Regarding the religious minority views, the road is still open and both ways are possible: there is a possibility that the non-tolerable orthodox community will become more understanding; but there is the chance that it would only take advantage of the tolerable democratic society and would expand its anti democratic views. Observing the last few years, I cannot point towards positive developments in the orthodox society; in the last few years I observe anti-democratic declaration from the leaders of the orthodox community, starting from the condemnation of same-sex relations, followed by ethnical discrimination and up to physical violence against women and girls who were not ‘modest’ according to the strict rules. As the title suggests, this is an ongoing discourse or even dispute - that is far from being ended – between the two thrones that constitute the Jewish democracy.

Bibliography

Ahad Ha-Am, ‘The Jewish State and the Jewish Problem’ in Essential Texts of Zionism (Jewish Publication Society of America 1912) Aharon B, ‘The Constitutionalization of the Israeli Legal System As a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law’ (1997) 1 Israel Law Review — ‘Shitot Mishpat Be-Israel (Israeli Judicial Methods)’ [1992] Hapraklit B (Hebrew) www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 133

Calabresi and Hirschoff JT, ‘Toward a Test for Strict Liability in Torts’ [1972] YLJ Colombo S, Religion and State in Italy Compared to Israel- Institutional Aspects (Mishpat Ve Mimshal 1997) Daphne BE, ‘The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?’ [2003] Mishpatim — ‘The Military Service of Yeshiva Students: Between the Citizenship and Justifiability Dilemma’ [2006] Bar-Ilan Law Review — ‘Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change’ [2009] Cardozo Law Review Dikhovsky, ‘The Principle of Common Ownership-Is it the Law of the Land?’ [1998] Techunim Eliezer DY, Religion and Political Accommodation in Israel (Floersheimer Institute for Policy Studies 1999) Eliya MC, ‘Self Defending Democracy and Democratic Education in Ultra-Orthodox Jews Schools’(2008) 11 Law and Government Elon M, ‘Modes of Halakhic Creativity in the Solution of Legal and Social Problems in the Jewish Community’ in Yitzhak F (ed), Baer Memorial Volume [Zion 44] (Hebrew 1979) Ghiles-Meilhac S, ‘From an Unsolvable Dispute to a Unifying Compromise’ [2009] Bulletin du Centre de Recherche Français à Jérusalem Harel A, ‘Benign Segregation - A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community in Israel’ [2004] Afr J Hum Rts Herzog, ‘Israel’s Road to Feminism 1973-2000: Analysis’ in Rabinovich, Itamar and Jehuda Reinharz (eds), Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present (Brandeis University Press 2008) Halperin-Kaddari R, Israel as a Jewish and Democratic State: Tensions and Prospects (Van Leer Jerusalem Institue, Hakibutz Hameuhad Publishing 2000) — ‘Women, Religion and Multiculturalism in Israel’ (2000) 5 Uvla J Intl L & Foreign Aff Herzl T, ‘The State of the Jews. Introduction’ (The Jerusalem Center of Research ) accessed 19 November 2014

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Kaplan YS, Basic Law: Human Dignity and Liberty in the Rabbinical Court: The Balance Between Conflicting Jewish Values and Conflicting Human Rights (Kiryat Mishpat 2009) Kop-Yosef Y, A Patients Right not to Be Treated (Daat 2003) Lapidoth R, ‘Freedom of Religion and of Conscience in Israel’ [1998] Catholic University Law Review Lerner N, ‘Religious Liberty in the State of Israel’ [2007] EMORY INT’L L REV Lupo Y, A Shift in Haredi Society: Vocational Training and Academic Studies (J Floersheimer Institute for Policy Studies 2003) Mancini S, ‘Taking Secularism (Not Too) Seriously: The Italian “Crucifix Case” (2006) 1 Religion & Hum Rts Panara C, ‘In the Name of God: State and Religion in Contemporary Italy’ (2011) 6 Religion & Human Rights Raday F, Claiming Equality in Religious Identity – the Case of the Women of the Western Wall: a Supreme Court (Hamishpat 2007) Rothenberg N, ‘Mutual Education Core Studies for The Children of Israel: Overcoming Obstacales’ in Dan Inbar (eds), Towards Educational Revolution (2005) Rubinstein A, The Constitutional Law of the State of Israel (5th edn, Shoken 1996) Samoha S, ‘Jewish State and Jewish Democracy: A Review Article of Alexander Yakobson and Amnon Rubinstein’s “Israel and the Family of Nations: Jewish Nation-State and Human Rights” [2006] Mishpat Umimshal (Law and Government in Israel) Santosuosso A, ‘End of Life Decisions in Italy and in Europe’ in Selected Publications of the International Seminar Matters of Life and Death: Religion and Law at the Crossroads (Boston College Law School 2008) Sapir G, ‘Religion and State in Israel - The Case for Reevaluation and Constitutional Entrenchment’ [1999] Hastings Int’l & Comp L Rev — ‘Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant Normative Considerations’ (2001) 9 Plilim — & Daniel Statman, ‘Religious Marriage in a Liberal State’ [2008-2009] Cardozo L Rev www.kulawr.ru Volume 2 May 2015 Issue 1(3) Liana Voloch Game of Thrones: The Ongoing Discourse on Religion and State in Israel 135

Sasson T, Tabory E, Selinger AD, ‘Framing Religious Conflict: Popular Israeli Discourse on Religion and State’ [2010] Journal of Church & State Secara NA, ‘Has Italy Discovered Virgil? Utilizing the British Archetype to Create End-of-Life Legislation in Italy’ [2011] Cardozo J Int’l & Comp L Segev J, ‘Who Needs a Constitution? In Defense of the Non- Decision Constitution-Making Tactic in Israel’ [2007] Alb L Rev Shalev G, ‘Interpretation in Law: Chief Justice Barak‘s Theory’ [2002] Isr L Rev Shmueli B, ‘Tort Litigation between Spouses: Let’s Meet Somewhere in the Middle’ [2010] Harv Negot L Rev Streinberg A, ‘Euthanasia in the light of the Halacha’ [1982] Asia Warsoff, ‘The Legal System of the State of Israel’ (1956) 2 NY LF Yeffet KC, ‘Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women’s Marital Freedom’ [2009] Yale Journal of Law and Feminism Zilbershatz Y, ‘Freedom of Movement within a State’ (1998) 4 Zucker N, ‘Secularization Conflicts in Israel’ in DE Smith (ed), Religion and Political Modernization (1974)

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ARTICLE

THE INTERPRETIVE APPROACH TO INTERNATIONAL LAW: A POSITIVIST VIEW By Larissa Zakharova (Russia)

Author PhD (International Law), cum laude, Kutafin Moscow State Law University, 2005 Associate Professor, Chair of International Law, Kutafin Moscow State Law University Abstract The interpretive approach to international law, specifically the evolutionary interpretation of international law, is a powerful instrument in the determination and subsequent development of its norms. The interpretive process should not be guided by abstract political morality, but by the general rules of interpretation laid down in Articles 31-32 of the 1969 Vienna Convention on the Law of Treaties, which require the parties to act in good faith and determine the common intention of the parties. The right to interpret international legal norms may be exercised not only by international judicial bodies such as the International Court of Justice (ICJ), the European Court of Human Rights (ECHR), etc., but also by international treaty monitoring mechanisms such as the Committee on Economic, Social and Cultural Rights (CESCR). Such an approach can be conducive to the elaboration of a new broad interpretation of the norms laid down in the original documents (e.g. the ECHR has eventually come to regard the right to respect for private and family life as comprising the right to an ecologically sound environment) or the setting apart of specific norms from more general ones (e.g. a number of separate human rights have developed out of the right to health, thanks to the interpretive activities of the CESCR and other human rights bodies). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 137

Keywords International law, interpretive approach, general principles of law, political morality, positivist principles, evolutionary interpretation

TABLE OF CONTENTS

I. Dworkin’s Interpretive Theory of Law and Its Positivist Critique ...... 137 II. General Rules of Interpretation ...... 143 III. Evolutionary Interpretation in International Law: Two Applications of the Theory ...... 145 IV. Conclusion ...... 153 Bibliography ...... 154

I. DWORKIN’S INTERPRETIVE THEORY OF LAW AND ITS POSITIVIST CRITIQUE

International law is a live legal system, which continues to develop even though it was not recently created, as its origins date back to the ancient times when the jus gentium was created by the Romans. The development of international law became especially intense in the 20th century both in terms of its substance and scope. Some Western scholars characterize the present system of the international law sources enumerated in Article 38 of the International Court of Justice (ICJ) Statute as lacking any hierarchical order. The first conclusion drawn from these arguments is that fundamental norms of international law which should generally enjoy ‘supremacy … over domestic constitutional law’, are laid down in international conventions, whilst international customary rules and general principles of law can be applied “according to their substantial weight and significance”1 without stipulating any

1 J Klabbers, A Peters, G Ulfstein, ‘The Constitutionalization of International Law’ (2009) Oxford University Press 348. Cited in G Palombella, ‘International law raison d’être and the grounds for the interpretive approach’ (2014) 2 Kutafin University Law Review.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 138 KUTAFIN UNIVERSITY LAW REVIEW formal priorities between them. The second conclusion suggested as a result of this way of thinking is that general principles of law, especially those cited by international courts and tribunals (e.g. self-preservation, good faith, principles of responsibility, and principles regulating judicial proceedings), should serve as guidance of paramount importance for the process of law-functioning.2 In his recent article, Gianluigi Palombella delves into this principle- based approach analyzing the ideas voiced in Ronald Dworkin’s renowned book ‘Law’s Empire’ (1986). Palombella singles out three separate theories of international law: positivist, naturalist and interpretivist.3 Under this classification, the criterion for classification remains elusive. While the first two cases concern the question of who created the jus naturale (the law of nature) vis-vis jus positivum (man- made law), the third case focuses on the methods by which it is created (through interpretation exercised primarily by the judicial bodies). It is the purpose pursued in elaborating legal norms that holds a central place in Dworkin’s original classification. Thus, the three theories of law he distinguished could be called consensual (law reflects a consensus in respect of norms accepted within a specific community), teleological (law provides a necessary means for achieving social goals), and interpretive (law ensures the desired integrity in the political and legal spheres).4 Two principles appear to stand out quite prominently within the interpretive paradigm. These are, to use Dworkin’s terminology, the principle of mitigation of states’ power and the principle of salience. The former connotes every state’s willingness to accept and tolerate certain constraints on its sovereignty in order to promote an effective international order. It would appear that there are good chances to become more influential over time if a state takes account of the objective need for cooperative efforts in order to ensure common goods, such as for instance, the security of mankind, which may be seriously

2 G Palombella (n 1) 159. 3 G Palombella (n 1) 162-163. 4 R Dworkin, Law’s Empire (Cambridge Mass.: Harvard University Press, 1986). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 139 undermined by climate change or other environmental challenges.5 This in turn presupposes a duty to adhere to the rules accepted by a vast majority of states and peoples. Palombella acknowledges that the principle of the mitigation of states’ power is “insufficiently determinative as to different possible regimes of international law”.6 The principle of salience is no less indeterminate. An inevitable question arises as to who has the authority to determine the existence and scope of these principles along with other principles of political morality (another key term coined by Dworkin), which is very difficult to answer. Under conditions of such uncertainty, history will continue to repeat itself: what seems to be political morality as a direct reason for action for some (ex iniuria ius oritur)7 is perceived as a sheer act of political amorality by others.8 Even though no one would deny that politics and law, including international law in particular, are intertwined and influence each other considerably, it does not seem appropriate to incorporate political concepts intentionally into legal parlance. Politics and law still remain separate regulatory systems. Ideally, humanity aspires to achieve the rule of law in politics and to end up giving way to the rule of politics in law.

5 G Palombella (n 1) 166. 6 ibid. 7 Back in 1999, A Cassese wrote concerning NATO’s involvement in Kosovo that “Human rights are increasingly becoming the main concern of the world community as a whole. There is a widespread sense that they cannot be trampled upon with impunity in any part of the world… [T]he international community is increasingly intervening, through international bodies, in internal conflicts where human rights are in serious jeopardy”. A Cassese, ‘Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 Eur J Int’l Law 23, 26. Cited in TM Franck, ‘Lessons of Kosovo’ (1999) 93 American Journal of International Law 857. 8 ‘Ofitsialnye materialy. Agressiya NATO protiv Yugoslavii’ // Diplomatichesky vestnik. 1999. №4. accessed 19 March 2015 (‘Official materials. NATO aggression against Yugoslavia’ (1999) 4 The Diplomacy Herald accessed 19 March 2015).

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The interpretive approach as understood by Dworkin and Palombella strikes us as being something that is rather difficult to accept for the representatives of the continental system of law. Dworkin was a fervent advocate of the interpretivist theory with its focus on adjudication. This without doubt holds true for the Anglo-American legal system in which the courts enjoy considerable ‘judicial discretion, if not judicial norm- creation’,9 but it cannot possibly boast a universal appeal. The Soviet school of international law was firmly grounded in positivist principles. Russian legal scholarship still upholds this tradition. In his recent book ‘Essays on Philosophy and International Law’ (2009), Stanislav V. Tchernichenko powerfully states that ‘International law is first and foremost positive law’, going on to assert that ‘The general principles of law should not be enumerated among the sources of law, in particular of international law. They are not a form of embodiment of international law, but its substantial part’. He then clarifies this assertion, referring to the general principles of law as ‘specific norms establishing in positive law (domestic and international) regularities [and] legal criteria pertaining to natural law’.10 This conclusion is in full accord with the teachings of such a prominent Soviet scholar as Roman L. Bobrov who stressed back in 1962 that ‘one should not interpret principles of law as categories detached from norms, as categories that simply reflect the guiding ideas and qualitative peculiarities of this system of law’. Such a proposition, in his opinion, would have far-reaching consequences for the development of the science of international law.11 Thus, the general principles of law are supposedly the principles that have already entered into the corpus of international law either through international custom or under an international treaty, leaving little or no scope for international courts and other international bodies to fill in possible legal gaps. Returning to the principles of political morality, it must

9 G Palombella (n 1) 158. 10 Tchernichenko S.V. Ocherki po filosofii i mezhdunarodnomu pravu / M.: Nauchnaya kniga, 2009 (SV Tchernichenko, Essays on Philosophy and International Law (Science book, 2009)). 11 Bobrov R.L. Sovremennoe mezhdunarodnoe pravo (ob’ectivnye predposylki i sotsialnoye naznacheniye) / L.: LGU, 1962 (RL Bobrov, Contemporary International Law (Objective Preconditions and Social Purpose) (LGU 1962)). www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 141 be mentioned that their existence, scope and value for the system of international law in general can only be identified through a consensus between major actors, and this role is still performed by states. The main conceptual foundation of legal positivism is the acknowledgment that international law is premised on the consent of states. It is states that conclude international treaties and recognize principles of customary international law as being legally binding. It is presumed within this framework that Article 38(1)(b) of the ICJ Statute, which provides a definition of international custom, should be read as ‘evidence of a general practice accepted as law’ by states. The Soviet, and subsequently Russian, schools of legal thought view Grigory I. Tunkin’s concordance of the wills of states as a concept of major importance. It is based on the recognition that states are primary actors in the process of international rule-making in relation to the formation of both treaty law and customary law.12 Western scholars continue to question the exclusive right of states to create international customary law. Back in 1958, the British scholar C. Wilfred Jenks pointed to the enhanced role of international organizations in the development of international law, including customary law, even though traditionally ‘international custom is to be deduced from the practice of States’.13 Recently, the American scholar Jordan Paust made a similar point in a more radical way, ‘Contrary to false myth perpetrated in the early twentieth century, the subjective element of customary international law (i.e., opinio juris or expectations that something is legally appropriate or required) is to be gathered from patterns of generally shared legal expectation among humankind, not merely among official State elites’.14 This point was further elaborated by his compatriot Isabelle R. Gunning

12 Tunkin G.I. Teoriya mezhdunarodnogo prava / Pod obshch. red. L.N. Shestakova. M.: Zertsalo, 2009 (GI Tunkin, The Theory of International Law (L Shestakov ed, Zertsalo 2009)). 13 CW Jenks, ‘The Common Law of Mankind’ (1958) Stevens & Sons 1958 190-191. Cited in BD Lepard, Customary International Law: a New Theory with Practical Applications (New York: Cambridge University Press, 2010. 14 JJ Paust, International Law as Law of the United States (2nd ed., Carolina Academic Press 2003) 4. See also MS McDougal, HD Lasswell, L Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (Yale University Press 1980) 269. Cited in BD Lepard (n 13) 186.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 142 KUTAFIN UNIVERSITY LAW REVIEW who voiced the idea that nongovernmental organizations (NGOs) can ‘participate both in the practice and opinio juris components of customary law creation’.15 NGOs can really contribute to the evolution of opinio juris by carrying out investigations into state practices in a certain field and provoking reactions by states to these investigations. In a number of cases, NGOs even manage to contribute to the elaboration of new treaty provisions. This is one of the trends which are transforming international law – Rosalyn Higgins labels it as the ‘Reformation in international law’.16 For instance, it was NGOs which suggested some of the formulations of human rights that came to be enshrined in the 1945 UN Charter and the 1948 Universal Declaration of Human Rights.17 NGOs can also make a significant contribution to the interpretation of international law. NGOs such as the International Commission of Jurists, the International Association of Penal Law and the Urban Morgan Institute of Human Rights were actively involved in the drafting of the ‘Siracusa Principles’ on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights in 1984.18 In 1958, the International Committee of the Red Cross (the ICRC) championed a broad construction of existing international humanitarian law. In its Commentary on the Fourth Geneva Convention, the ICRC acknowledged

15 IR Gunning, ‘Modernizing Customary International Law: The Challenge of Human Rights’ (1991) 31 Virginia Journal of International Law 211-247. Cited in BD Lepard (n 13) 186. See also D Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 (2) American Journal of International Law 293, 321. 16 R Higgins, ‘The Reformation in International Law’ in R Rawlings (ed), Law, Society, and Economy. Centenary Essays for the London School of Economics and Political Science, 1895-1995 (Oxford: Clarendon Press, 1997). 17 A Cassese, Human Rights in a Changing World (1990); W Korey, NGOs and the Universal Declaration of Human Rights: a Curious Grapevine (1998), PG Lauren, The Evolution of International Human Rights: Visions Seen (1998)183,188-190; WM Reisman, Private International Declaration Initiatives. In ‘La Déclaration Universelle des Droits de l’Homme 1948-99 (1998) 79; LB Sohn, ‘The United Nations at Fifty: How American International Lawyers Prepared for the San Francisco Bill of Rights’ (1995) vol 89 American Journal of International Law 540. Cited in S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 (2) American Journal of International Law. 18 T Boven, ‘The Role of Non-Governmental Organizations in International Human Rights Standard-Setting: A Prerequisite of Democracy’ (1990) vol 20 California International Law Journal 207, 219-220. Cited in S Charnovitz (n 17) 352. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 143 that the grave breach of inhuman treatment by ‘wilfully causing great suffering or serious injury to body or health’ envisaged in Article 147 was to be interpreted in the context of Article 27 prohibiting rape.19 Nowadays it is impossible to deny that many intergovernmental organizations and NGOs find themselves engaged in an interactive discussion with states on the desirability of recognizing new norms of international law. The positivist view does not ignore a growing interaction between states and non-state actors. Quite on the contrary, it takes this into account within its explanation of social and legal phenomena. However, its basic precepts are not shattered by this recognition: ultimately it is still states that react (whether favourably or not) to the reports presented by NGOs, recognize international customary rules as legally binding and adopt new international treaty norms.

II. GENERAL RULES OF INTERPRETATION

General rules of interpretation can be found in Article 31 of the 1969 Vienna Convention on the Law of Treaties, which provides that ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (Article 31(1)). For interpretive purposes, the concept of the ‘context’ of a treaty encompasses the text of a treaty including its preamble and annexes and any agreement or other instrument related to the treaty that can be concluded at the same time as the treaty (Article 31(2)). Any subsequent agreement or subsequent practice in the application of the treaty manifesting an agreement between the parties regarding its interpretation or any relevant rules of international law may also be helpful in the process of interpreting the treaty or applying its provisions (Article 31 (3)). Article 32 of the Vienna Convention on the Law of Treaties concerns the concept of a ‘supplementary means of interpretation’. This includes the preparatory works (travaux préparatoires) and the circumstances surrounding its conclusion. The supplementary means of interpretation enable either to confirm the meaning or to determine it

19 T Meron, ‘Rape as a Crime under International Humanitarian Law’ (1993) 87 (3) American Journal of International Law.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 144 KUTAFIN UNIVERSITY LAW REVIEW when interpretation leaves the meaning ambiguous or obscure or leads to a manifestly absurd or unreasonable result. The aim of the author of the present article is to demonstrate that the interpretive approach to international law can indeed be exercised within positivist boundaries. With due respect, Dworkin cannot take credit for the authorship of the idea of interpretivism in law. In fact, hermeneutics as a theory of textual interpretation is centuries-old and dates back to the pre-Christian times, whilst the patristic legacy of biblical exegesis provided it with a considerable incentive for further development. Nowadays, the so-called evolutionary approach, which can certainly be viewed as a specific form of a more general interpretive approach, proves to be quite useful within the practice of international courts and international treaty bodies monitoring the implementation of states’ obligations in the realm of human rights. The formulation ‘evolutionary interpretation’ conveys the idea that ‘a treaty term is capable of evolving, that it is not fixed once and for all, so that allowance is made for … developments in international law’.20 The ICJ held in its judgment on the Navigational and Related Rights dispute that, if a term’s meaning is no longer the same as it was at the time the treaty was concluded, it is necessary to take account of its actual meaning when the treaty is interpreted to be applied. 21 The requirements of the evolutionary interpretation of international treaties dictate first that parties should act in good faith and secondly that the common intention of the parties should be upheld.22 The element of good faith ‘imposes on the international judge an obligation to adjudicate reasonably’, which precludes as inadmissible any formalistic approach under which form prevails over substance.23 The

20 E Bjorge, ‘The Evolutionary Interpretation of Treaties’ (2014) Oxford University Press. 21 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Judgment (2009) ICJ Rep 242 at [64] accessed 11 March 2015. 22 E Bjorge (n 20) 63-83. 23 Cf U Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007); O Corten, L’utilization du ‘raisonnable’ par le juge international (Brulant, 1997). Cited in E.Bjorge (n 20) 68. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 145 second element denotes a need to look for the common intention of the parties. Since the two elements are closely interconnected, ‘[i]t is obviously contrary to good faith to argue that a treaty term must be interpreted contemporaneously (i.e. as not having evolved) when it follows from what must be held to have been the common intention of the parties that the treaty terms were to be interpreted evolutionarily’.24 In its judgment resolving the Navigational and Related Rights dispute, the ICJ singled out two types of case in which evolutionary interpretation is needed. First, the subsequent practice of the parties, in accordance with Article 31(3)(b) of the 1969 Vienna Convention, can result in a departure from the original intent on the basis of a tacit agreement between the parties. Second, there are situations in which the parties’ intent was, or may be presumed to have been, to give all the terms or some of them a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for … developments in international law.25 The following section is dedicated to a presentation of two examples which illustrate this line of reasoning.

III. EVOLUTIONARY INTERPRETATION IN INTERNATIONAL LAW: TWO APPLICATIONS OF THE THEORY

The first example shows how the European Court of Human Rights (ECHR) in the absence of a separate right to life in a healthy environment in the 1950 European Convention for the protection of Human Rights and Fundamental Freedoms (the 1950 European Convention) gradually developed an approach by which this right is defined as an integral part of the right to respect for private and family life, home and correspondence laid down in Article 8 of the 1950 European Convention. The ECHR has always sought a consensus, i.e. the common intention of the Council of Europe member states. ‘The existence of a

24 Cited in E Bjorge (n 20) 76. 25 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua). Judgment (2009). ICJ Rep. 242 at [64] accessed on 11 March 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 146 KUTAFIN UNIVERSITY LAW REVIEW consensus has long played a role in the development and evolution of Convention protections …, the Convention being considered a ‘living instrument’ to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention’.26 In situations in which the Court is confronted with the absence of a European consensus on delicate issues such as euthanasia,27 the scientific and legal definition of the beginning of life28 or possible limitations on the freedom to manifest one’s religion or beliefs, it stresses its own fundamentally subsidiary character and places special weight on the role which the domestic policy-maker should have ‘in matters of general policy, on which opinions within a democratic society may reasonably differ’, thus leaving the states a wide margin of appreciation.29 Protocol No. 15 to the 1950 European Convention, adopted in 2013, respectfully acknowledges in Article 1, which amends the preamble to the Convention, that there the High Contracting Parties enjoy a margin of appreciation in securing the rights and freedoms defined in the 1950 Convention and the Protocols thereto. Since the 1990s, the ECHR has broadly interpreted the right to respect for private and family life, home and correspondence in full accord with the very etymology of the term ‘ecology’ (literally ‘a science about home’ from the Greek ‘οἶκος’ – a house, a dwelling and ‘logos’ – a teaching, a science). The Strasbourg Court has held that this includes the

26 A, B and C v Ireland App no 25579/05. Judgment of the European Court of Human Rights of 16 December 2010 at [234]. accessed on 11 March 2015. 27 Haas v Switzerland App no 31322/07. Judgment of the European Court of Human Rights of 20 January 2011 at [55] accessed on 11 March 2015. 28 A, B and C v Ireland App no 25579/05. Judgment of the European Court of Human Rights of 16 December 2010 at [175]. accessed on 11 March 2015. 29 S.A.S. v France App no 43835/11. Judgment of the European Court of Human Rights of 1 July 2014 at [129]. accessed on 11 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 147 right to a favourable environment as a necessary component, thereby requiring the states to implement a number of positive obligations in this area. The first judgment in which the ECHR demonstrated such an approach was given in the case of Powell and Rayner v. the United Kingdom. The British nationals Richard John Powell and Michael Anthony Rayner lived close to Heathrow, a major airport, and complained of excessive noise generated by air traffic. The applicants lodged their petitions with the European Commission of Human Rights on 31 December 1980, which declared them admissible and forwarded them to the ECHR on 16 March 1989. The applicants claimed that a number of their rights guaranteed under the 1950 European Convention had been violated, including the right to respect for personal and family life, home and correspondence (Article 8), the right of property (Article 1 of the Protocol 1), the right of access to the courts in civil matters (Article 6) and the right to an effective remedy under domestic law for alleged breaches of the Convention (Article 13). The Court stated in its judgment that no arguable claim that Article 8 had been violated in connection with the noise caused by the aircraft flying at a reasonable height and observing the air traffic regulations had been made out in relation to either applicant, and held in the operative part that it lacked jurisdiction to entertain the complaints under Article 8. However, the historic importance of Powell and Rayner v. the United Kingdom is that it was the first time that the need to ensure an ecologically sound environment was treated as a positive obligation of the state and a prerequisite for implementing certain other rights of the applicants. The notion of ‘private life’ was construed broadly by the Court when holding that in each case ‘the quality of the applicant’s private life and the scope for enjoying the amenities of his home had been adversely affected by the noise generated by aircraft using Heathrow Airport’.30 In subsequent decisions the ECHR frequently held Article 8 to have been violated in situations in which public authorities had failed

30 Powell and Rayner v UK App No 9310/81. Judgment of the European Court of Human Rights of 21 February 1990 at [46, 40] accessed on 12 March 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 148 KUTAFIN UNIVERSITY LAW REVIEW to protect their citizens properly from the risks to their health or life resulting from hazardous or polluting activities carried on by a state or a private business. The same approach was adopted by the ECHR in its judgment given on 9 December 1994 in the case López Ostra v. Spain. Gregoria López Ostra claimed that Articles 8 and 3 of the 1950 European Convention had been violated. The applicant and her family had been living in Lorca (Murcia) near to a liquid and solid waste treatment plant, which was a source of noise, polluting fumes and pestilent smells, eventually causing the health of the applicant and her daughter to deteriorate. Ostra argued that the Spanish authorities were responsible for their failure to act in this matter. Although in the Court’s opinion, the Spanish authorities and the municipality of Lorca did not theoretically bear direct responsibility for the emission of polluting substances by the plant, the Court however pointed to the permit given by the town to build the plant on its land and to the State’s subsidies awarded in relation to its construction. The ECHR stated that ‘The State did not succeed in striking a fair balance between the interest of the town’s economic well-being − that of having a waste-treatment plant − and the applicant’s effective enjoyment of her right to respect for her home and her private and family life’. In the operative part of its judgment the Court held that Article 8 had been violated and obliged Spain to pay four million pesetas to Ostra as damages and one million five hundred thousand pesetas in costs and expenses.31 Russian citizens have also filed applications concerning different aspects of environmental well-being. The Fadeeva v. Russia case can serve as an example. Nadezhda Fadeeva argued that the operation of the Severstal steel plant within the sanitary security zone in which she lived in her native town of Cherepovets endangered her health and well-being by producing a high level of atmospheric pollution. On 17 October 2003 the ECHR ruled her application admissible. In the judgment rendered on 9 June 2005 the Court held that the State could be held responsible in environmental cases owing to a failure to regulate private industry and be subject to a positive duty to take reasonable and appropriate

31 López Ostra v Spain App no 16798/90. Judgment of the European Court of Human Rights of 9 December 1994 at [34, 52, 58] < http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-57905> accessed on 12 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 149 measures to secure the applicant’s rights under Article 8, in particular in order to evaluate pollution hazards and to prevent or reduce them. The Court held that the Government was under an obligation to take appropriate measures to remedy the applicant’s individual situation, suggesting her resettlement to an ecologically safe area as a possible solution. In the operative part of the judgment, the Court held that Article 8 had been violated and obliged the Russian Federation to pay six thousand euros to Fadeeva in respect of non-pecuniary damages and compensate costs and expenses incurred by of the applicant’s Russian and British lawyers.32 The three cases briefly outlined above demonstrate how the right to a favourable environment may be enforced within the Council of Europe system of human rights protection thanks to the Strasbourg Court’s broad interpretation of Article 8 of the 1950 European Convention. The second example is intended to demonstrate how evolutionary interpretation can be engaged in not only by international courts, but by international treaty monitoring bodies, too. The Committee on Economic, Social and Cultural Rights (CESCR) established by the Economic and Social Council resolution 1985/17 of 22 May 1985 is, inter alia, vested with the powers to make recommendations of a general nature, i.e. to interpret the provisions of the Covenant. It will be shown how the interpretive activities of the CESCR, the Human Rights Commission and the Human Rights Council that replaced it have gradually contributed to the establishment of separate rights to an ecologically sound environment, food and water. The right to an ecologically sound environment was originally viewed as an element of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (the right to health). It is enshrined in Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), a number of other international treaties, general comments of the CESCR and resolutions of the Human Rights Commission. Article 2 of the ICESCR obliges each States Parties Party to take steps ‘to the maximum of its available

32 Fadeeva v Russia App no 55723/00. Judgment of the European Court of Human Rights of 9 June 2005 at [89, 92, 142] accessed on 12 March 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 150 KUTAFIN UNIVERSITY LAW REVIEW resources, with a view to achieving progressively the full realization of the rights recognized in it’. It can be deduced from it that first, the resources at the states’ disposal differ and second, that measures are supposed to be taken gradually, developing continuously from one stage to another. This formulation seems to be the case when the treaty makers may have been presumed to give the treaty terms a meaning or content capable of evolving just like the evolutionary interpretation theory requires. Article 25(1) of the 1948 Universal Declaration of Human Rights, the drafting history of the ICESCR and the list of measures to be taken by the States Parties to implement the obligation to ensure the right to health under Article 12 of the ICESCR show that being able to lead a healthy life presupposes the existence of a minimum range of socio- economic factors such as food, clothing, housing, medical care and necessary social services. With the passage of time it has become clear that all of these are to be interpreted broadly. In its General Comment No.14 adopted on 11 August 2000 the CESCR specified first that the list of the measures envisaged by Article 12(2) of the ICESCR is non- exhaustive (para.7), secondly that ‘the notion of health has undergone substantial changes and has also widened in scope’ (para. 10) and thirdly that the right to a healthy natural and workplace environment now comprises the requirement to ensure ‘an adequate supply of safe and potable water and basic sanitation, the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health’ (para. 15) as well as ‘the participation of the population in all health-related decision- making at the community, national and international level’ (para.11).33 However, not all scholars consider that it is necessary to make normative provision establishing a separate human right to an ecologically sound environment. In 1992, Handl voiced his doubts by

33 Committee on Economic, Social and Cultural Rights. Report on the twenty- second, twenty-third and twenty-fourth sessions (25 April- 12 May 2000, 14 August – 1 September 2000, 13 November – 1 December 20000.). The United Nations Economic and Social Council. Official records, 2001. Supplement No.2. E/2001/22; E/C.12/2000.21. Annex IV. P 128-148 accessed on 13 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 151 pointing to the difficulty in establishing a definition, the inefficiency of environmental standards in respect of individual petitions, the inappropriateness of controlling human rights bodies (such as the CESCR) to control the performance of states’ obligations in the environmental sphere and the generally anthropocentric character of such an approach (‘species chauvinism’, in his words). Boyle who was also initially critical of the need to establish a separate right to an ecologically sound environment, changed his mind in his later works. In his opinion, it is impossible to ignore three positive trends in recent times: first, a substantial corpus of judicial decisions on the “greening” of civil and political rights in Europe, Africa and Latin America; secondly, the increased participation of citizens in decision-making and the granting of appropriate access to information concerning the environment; and thirdly the appearance of the rights to water, food and health as focal points for international human rights bodies when supervising the conduct of states in protecting the environment.34 The existence of a separate right to water does not seem to be a matter for discussion. It can be supported by the fact that the Human Rights Commission established a mandate for the Special Rapporteur on the right to food in April 2000, which was renewed by the Human Rights Council (at present Hilal Elver (Turkey) occupies this position).35 The situation is more controversial with regard to the right to water. Has it become a separate right or is it still an integral part of other human rights? Scholarly opinions differ greatly. Bates, Beail-Farkas, Carlson and Rutherford argue in favour of a self-standing right to water, whereas Bluemel, Donoho and Teymurov disagree, viewing the ‘right to water’ as a necessary component in the implementation of other

34 G Handl, Human Rights, Sustainable Development and the Environment (San José 1992) 117; Human Rights Approaches to Environmental Protection (A Boyle and M Anderson (eds.), Oxford University Press 1996); PM Dupuy, The Right to Health as a Human Right (RJ Dupuy ed., Alphen aan den Rijn 1979) 91; P Alston, ‘Conjuring up New Human Rights: a Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. Cited in A Boyle, ‘Human Rights and the Environment: a Reassessment’ (2010) accessed 19 March 2015. 35 accessed 14 March 2015.

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 152 KUTAFIN UNIVERSITY LAW REVIEW rights.36 Some scholars adhere to a compromise position, stating that the rights to water and food are being crystallized thanks to the CESCR’s ‘revisionist views’ and hinting at the absence of unanimous support on the part of states, i.e. a relative consensus at best.37 The right to water is treated as a separate right by the UN Sub-Commission on the Promotion and Protection of Human Rights in its resolution 2002/6 of 19 November 2002,38 by the CESCR in its General Comment No. 15 of 29 November 2002,39 by the UN General Assembly in resolution 64/292

36 R Bates, ’The road to the well: an evaluation of the customary right to water’ (2010) vol 19 3 Review of European Community and International Environmental Law 282-293; L Beail-Farkas,‘The human right to water and sanitation: context, contours, and enforcement prospects’ (2013) 30 (4) Wisconsin International Law Journal 772-774; J Carlson, ‘A critical resource or just a wishing well? A proposal to codify the law on transboundary aquifers and establish an explicit human right to water’ (2011) 26 (5) American University International law review 1412, 1436; R Rutherford, ‘An international human right to water: How to secure the place of people ahead of profits in the struggle for water access’ (2011) vol 62 4 Alabama Law Review 877, 884; EB Bluemel, ‘The implications of formulating a human right to water’ (2004) vol 31 4 Ecology Law Quarterly 1005-1006; D Donoho, ’Some critical thinking about a human right to water’ (2012) vol 19 1 ILSA Journal of International and Comparative Law 99. Cited in: Teymurov E.S. Obespecheniye prava na vodu: pozitsii Ekonomicheskogo i Sotsial’nogo Soveta OON, Evropeyskogo suda po pravam cheloveka i natsional’nykh sudov Indii i Yuzhno-Afrikanskoy Respubliki // Evraziyskiy yuridicheskiy zhurnal. 2004. №4 (71). (ES Teymurov, ‘Ensuring the Right to Water: Positions of the UN Economic and Social Council, the European Court of Human Rights and National Courts of India and South Africa’ (2014) 4(71) Eurasian Legal Journal). 37 MI Dennis, DP Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Нousing, and Health?’ (2004) 98 (3) American Journal of International Law. 38 United Nations Sub-Commission on the Promotion and Protection of Human Rights. Resolution 2002/6 “The promotion of the realization of the right to drinking water and sanitation”. 19 November 2002. See also the Report on the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation. E/CN.4/ Sub2/2002/10 submitted by the Special Rapporteur of the Sub-Commission on the right to drinking water supply and sanitation, Mr..Elhadji Guissé accessed on 14 March 2015 20-22. 39 Committee on Economic, Social and Cultural Rights. General Comment No.15. 11-29 November 2002. The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) accessed on 14 March 2015 www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 153 of 28 July 2010,40 and by the Human Rights Council in resolution 15/9 of 30 September 2010.41

IV. CONCLUSION

The interpretive approach to international law and more specifically, the evolutionary interpretation of international law, have proved to be quite fruitful in the determination and subsequent development of its norms. According to positivist tenets, the interpretive process should not be guided by abstract political morality, the origin of which remains unclear, but by general rules of interpretation reflected in Articles 31- 32 of the 1969 Vienna Convention on the Law of Treaties, which require that the states parties act in good faith and that the common intention of the parties be determined. The right to interpret international legal norms can be exercised not only by international judicial bodies (the ICJ, the ECHR, etc.), but also by international treaty monitoring mechanisms (such as for instance the CESCR). Such an approach can be conducive to arriving at a new broad interpretation of the norms laid down in the original documents (environmental nuisances are viewed as a violation of the right to respect for private and family life established by Article 8 of the 1950 European Convention) or even to establishing separate human rights (the rights to the ecologically sound environment, food, water have gradually developed out of the right to the enjoyment of the highest attainable standard of physical and mental health (the right to health) enshrined in Article 12 of the 1966 ICESCR, thanks to the interpretive activities of the CESCR and other human rights bodies.

40 United Nations General Assembly resolution «The Human Right to Water and Sanitation». A/res/64/292. 28 July 2010 < http://www.un.org/es/comun/ docs/?symbol=A/RES/64/292&lang=E> accessed on 14 March 2015. 41 Human Rights Council. Resolution15/9 «Human rights and access to safe drinking water and sanitation». A/65/53/Add.1. 30 September 2010 28-31 accessed on 14 March 2015.

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Bjorge E, ‘The Evolutionary Interpretation of Treaties’ (2014) Oxford University Press Bobrov R.L. Sovremennoe mezhdunarodnoe pravo (ob’ectivnye predposylki i sotsialnoye naznacheniye) / L.: LGU, 1962 (RL Bobrov, Contemporary International Law (Objective Preconditions and Social Purpose) (LGU 1962)) Boyle A, ‘Human Rights and the Environment: a Reassessment’ (2010) accessed 19 March 2015 Charnovitz S, ‘Nongovernmental Organizations and International Law’ (2006) 100 (2) American Journal of International Law Dennis MI, Stewart DP, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Нousing, and Health?’ (2004) 98 (3) American Journal of International Law Dworkin R, Law’s Empire (Cambridge Mass.: Harvard University Press, 1986) Franck TM, ‘Lessons of Kosovo’ (1999) 93 American Journal of International Law Higgins R, ‘The Reformation in International Law’ in R Rawlings (ed), Law, Society, and Economy. Centenary Essays for the London School of Economics and Political Science, 1895-1995 (Oxford: Clarendon Press, 1997) Lepard BD, Customary International Law: a New Theory with Practical Applications (New York: Cambridge University Press, 2010) Meron T, ‘Rape as a Crime under International Humanitarian Law’ (1993) 87 (3) American Journal of International Law ‘Ofitsialnye materialy. Agressiya NATO protiv Yugoslavii’ // Diplomatichesky vestnik. 1999. №4. accessed 19 March 2015 (‘Official materials. NATO aggression against Yugoslavia’ (1999) 4 The Diplomacy Herald accessed 19 March 2015) www.kulawr.ru Volume 2 May 2015 Issue 1(3) Larissa Zakharova The Interpretive Approach to International Law: A Positivist View 155

Palombella G, ‘International law raison d’être and the grounds for the interpretive approach’ (2014) 2 Kutafin University Law Review Shelton D, ‘Normative Hierarchy in International Law’ (2006) 100 (2) American Journal of International Law Teymurov E. S. Obespecheniye prava na vodu: pozitsii Ekonomicheskogo i Sotsial’nogo Soveta OON, Evropeyskogo suda po pravam cheloveka i natsional’nykh sudov Indii i Yuzhno-Afrikanskoy Respubliki // Evraziyskiy yuridicheskiy zhurnal. 2004. №4 (71). (ES Teymurov, ‘Ensuring the Right to Water: Positions of the UN Economic and Social Council, the European Court of Human Rights and National Courts of India and South Africa’ (2014) 4(71) Eurasian Legal Journal) Tchernichenko S.V. Ocherki po filosofii i mezhdunarodnomu pravu / M.: Nauchnaya kniga, 2009 (SV Tchernichenko, Essays on Philosophy and International Law (Science book, 2009)) Tunkin G.I. Teoriya mezhdunarodnogo prava / Pod obshch. red. L.N. Shestakova. M.: Zertsalo, 2009 (GI Tunkin, The Theory of International Law (L Shestakov ed, Zertsalo 2009))

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ARTICLE REVIEW

A STEP FOR COOPERATION OR DISINTEGRATION ? THE INDEPENDENCE REFERENDUM AS A PAGE IN ANGLO-SCOTTISH STORY

By Baatr Borkaev (Russia)

Author Kutafin Moscow State Law University (Diploma in Law, 2007) The postgraduate student at the Constitutional Law Department of Kutafin Moscow State Law University, 2007-2010 Free researcher E-mail: [email protected] Abstract ‘The Scottish independence referendum of September 2014: Constitutional and International Aspects’ by professor Alyson JK Bailes published in the first issue of the Kutafin University Law Review was one of the first articles about the Scottish referendum of 2014, published in Russia. The result of the referendum was negative in terms of pro-independence. This review is devoted to the main aspects of the article: historical background, the referendum process, international issues. The aim of this review is not to criticize the article but to identify strengths useful for the further research. The reader of review can see positive and negative points of the article. Keywords Devolution, Scotland, Scottish referendum, independence, European regions, multilayered state

www.kulawr.ru Volume 2 May 2015 Issue 1(3) Baatr Borkaev A Step for Cooperation or Disintegration ? The Independence Referendum as a Page in Anglo-Scottish Story 157

There is a very interesting article about referendum in Scotland by professor Alyson JK Bailes,1 published in the debut issue of the KULawR.2 The article ‘focuses ﬁrst on the historical and constitutional background to the referendum and the details of the referendum process itself. Secondly it discusses some of the international implications and issues linked to the potential independence of Scotland. Thirdly it considers how Scotland’s “devolved” powers (that is, powers of self- government delegated from the United Kingdom authorities) and its international activities may develop in the near future. The brief conclusions will pull together the various international points of interest in Scotland’s case.’ The main part of the historical background is devoted to the Scottish National Party (SNP) as the leading power of Scottish home rule movement. The first attempt to establish the devolution (the transfer of power from London to the regions)3 was failed in 1979 when ‘Labour Party Government of James Callaghan agreed to put this proposal and other self-government measures to a referendum in Scotland’. The long term of the Conservative Party Government reanimated the idea of the devolution in the Labour Party as the argument for Scottish voters. ‘The Labour Party’s victory in the 1997 general election opened the way for a new referendum.’ The Parliament enacted the Scotland Act of 1998. This Act restored the Parliament and established the Executive Power (Government) in Scotland. The SNP did not win the first Scottish elections in 1999 but got a stable support. The local Labour Party formed the coalition government with Liberal Democrats for two terms. But after two terms the SNP could form the government.

1 MA (Honours) in Modern History, University of Oxford, 1971 Adjunct Professor, Faculty of Political Science, University of Iceland and Visiting Professor, College of Europe, Bruges. 2 Alyson JK Bailes ‘The Scottish Independence Referendum of September 2014: Constitutional and International Aspects’ (2014) 1 Kutafin University Law Review 23. 3 S Tierney, ‘Giving with One Hand: Scottish Devolution within a Unitary State’ [2007] International Journal of Constitutional Law 730.

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The SNP government was unique for the British political practice because of its minority system. The SNP leader Alex Salmond became the First Minister. As a result of the following elections SNP changed for the majority system. The SNP’s first goal became to gain the independence from the UK. Alex Salmond ‘announced that he would hold a referendum on changing Scotland’s status in 2014-5, and launched a public campaign to rally support for independence’. The great achievement of Alex Salmond’s team was a peaceful and constitutional attempt to separate. The chosen form of referendum is considered to be much more democratic than the Declaration of Independence by Parliament. But it would not become possible without the viewpoint of the Coalition Government of David Cameron.4 ‘The UK Government in London, at this time a coalition of the Conservatives and Liberal Democrats, insisted that Scotland could not decide such matters alone.’ In 2012 the Scottish and the UK governments reached the agreement known as Edinburgh Agreement. A lot of the details of the referendum process are disclosed in the second part of the article. The review of the SNP program and the Coalition arguments seem very interesting. The Scottish Government used the period 2012-4 to develop plans for the contingency of independence, including a major programme document – ‘Scotland’s Future’.UK politicians of all parties waged a strong campaign for a ‘No’ vote under the slogan ‘Better Together’, focusing especially on what they saw as misleading claims in the SNP programme. They questioned (for instance) whether the oil and gas resources in Scottish waters would provide enough income, for long enough, to sustain the SNP’s proposed spending programmes. They warned that the remaining UK would have no obligation to continue cooperating with a separate Scotland, for instance over energy supplies or contracts for Scottish industry and that banks and other leading enterprises might move out of Scotland rather than face the uncertainty of independence. The other important aspect of the article is the international status of Scotland, especially regarding its membership in international

4 A Convery, ‘Devolution and the Limits of Tory Statecraft: The Conservative Party in Coalition and Scotland and Wales’ (2014) 67 Parliamentary Affairs 25. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Baatr Borkaev A Step for Cooperation or Disintegration ? The Independence Referendum as a Page in Anglo-Scottish Story 159 organizations, such as the UN, NATO, OSCE and the EU. The problem of the border division between England and Scotland still exists because of the oil fields in the North Sea.5 However, it could be a great opportunity for Scotland to cooperate with the Nordic countries like the Faroe Islands and Norway because of the absence of EU influence, geographical advantages and historical background of these countries. In the conclusion the author mentions the ‘velvet divorce’ of Czech Republic and Slovakia as a peaceful way of the disintegration. But the main idea is still Scotland in terms of international perspective. It would be great if the article had also contained a comparative review of the referendum in Catalonia (which makes an interesting contrast with the Scotland case). Madrid government did not accept Catalan independence referendum and blocked it through the Constitutional Court. Barcelona government leader Arthur Mas, however, singed the decree for referendum and it was translated on Euronews channel. After that the Head of Generalitet (Government) of Catalonia spoke Catalan language to explain that it was the important step on the way to independence. Spanish Government threatened to use the force. That is why Generalitet did not organise the official referendum. Most of the population, however, supported the idea of independence. It is worth a special mention the statement that ‘The dissolution of the Soviet Union, when those new republics not formerly represented at the UN…’ Perhaps it would be appropriate to mention that Belarusian SSR (BSSR) and Ukrainian SSR (UkrSSR) were part of the USSR and at the same time were the members of the United Nations since its establishment. For the reason that the Soviet Republics were the members of the UN, the USSR had three voices in the UN General Assembly. It was a paradox however, that BSSR and UkrSSR formally took part in UN since October 1945. Here are some extracts from the ofﬁ cial websites: Belarus is a founder of the United Nations, and the Belarusian delegation alongside other delegations that represented UN’ initial

5 DA Tait, ‘Tae Think Again: The Reversal of the Scottish Government’s Position on Maritime Boundary Delimitation in the North Sea’ (2014) 7 (2) Journal of World Energy Law and Business 162. M Zahraa, ‘Prospective Anglo-Scottish Maritime Boundary Revisited’ (2001) 12 (1) EJIL 77.

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Members, signed the United Nations Charter in San Francisco in October 1945. Admission of Belarus, which at the time was not even an independent state, into the newly born global Organization reflected international community’s recognition of the role played by the people of Belarus in defeating fascism. This extract is from the official website of Permanent Mission of the Republic of Belarus to the UN.6 On 19 September 1991, the Byelorussian Soviet Socialist Republic informed the United Nations that it had changed its name to Belarus.7 Ukraine was among the first nations to put its signature under the United Nations Charter, entering thus the group of the UN founding states of 51 nations.8 It’s worth mentioning that the comparison of Dual Monarchy of the Habsburgs in Austria and Hungary on the one side and united through the Crown Scotland and England in XVII century on the other, should not take place. It is not correct compare these two monarchies because at that time England and Scotland did not have another common state body apart from the Crown. At the same time Austria and Hungary had common state bodies such as Foreign Office. In my opinion, the modern Scotland is only on the way to have the same status as Hungary during Habsburgs Monarchy. For example Hungary, used to have its own budget which did not include the transfers from the Center (Vienna). Hungary financed the joint spending and taxes. The modern Scottish budget includes the transfers from the Center (London). Scotland finances the joint spending without levying taxes for its population apart from income taxes in some cases. Upon the Act of Union 1707 Scotland saves its own judicial and legal system. The Dual Monarchy of the Habsburgs in Austria and Hungary used to be a very complicated structure but it would be the salvation for the Union. The next General Election in 2015 can open the new era of Scottish and London government cooperation or disintegration.

6 http://un.mfa.gov.by/en/mission/un/ accessed 19 March 2015. 7 http://www.un.org/en/members/index.shtml accessed 19 March 2015. 8 http://un.mfa.gov.ua/en/ukraine-un/general-information accessed 19 March 2015. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Baatr Borkaev A Step for Cooperation or Disintegration ? The Independence Referendum as a Page in Anglo-Scottish Story 161

I would like to mention a high quality of the research. The author used the actual information and analyzed the topic very deeply. I would recommend this article for everybody who is interested in studies of status of Scotland, small countries and right of nations to self- determination.

Bibliography

Bailes Alyson JK ‘The Scottish Independence Referendum of September 2014: Constitutional and International Aspects’ (2014) 1 Kutafin University Law Review 23 Convery A, ‘Devolution and the Limits of Tory Statecraft: The Conservative Party in Coalition and Scotland and Wales’ (2014) 67 Parliamentary Affairs Tait DA, ‘Tae Think Again: The Reversal of the Scottish Government’s Position on Maritime Boundary Delimitation in the North Sea’ (2014) 7(2) Journal of World Energy Law and Business Tierney S, ‘Giving with One Hand: Scottish Devolution within a Unitary State’ [2007] International Journal of Constitutional Law Zahraa M, ‘Prospective Anglo-Scottish Maritime Boundary Revisited’ (2001) 12 (1) EJIL

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ROLE-PLAY REVIEW

THE FIRST KUTAFIN’S MODEL UNITED NATIONS By Dmitry Molchanov and Viacheslav Kokurkin (Russia)

Authors Students, Kutafin Moscow State Law University E-mail addresses: [email protected] [email protected] Abstract This review describes the unique type of academic activities for students – Model United Nations. In the modern society it became the world-wide movement that unites thousands of students from different countries. The most important purpose of it is to discuss the key problems of the international community. It combines the characteristics of the role-play, science conference and educational programme. The popularity of such events and the number of Models UN are growing every year. Several Models have been organized in Russia. The basic event for the UN students’ movement in Moscow is the Moscow International Model United Nations held annually in MGIMO. In 2015 Kutafin’s Law University joined the Model UN movement by organizing the first Kutafin’s University Model UN (KUMUN) on March 16-18. Three committees were operating at the same time: the Security Council, the Human Rights Council and the 6th Committee of the General Assembly. The delegates showed the highest level of diplomacy skills. They learned how to negotiate and suggested many ways of solving the international problems stated in the final resolutions of the committees. Keywords Moscow State Law University, United Nations, Security Council, Human Rights Council, 6th Committee of the General Assembly, conference, international law, private military companies, international interventions, state sovereignty, regional security www.kulawr.ru Volume 2 May 2015 Issue 1(3) Dmitry Molchanov and Viacheslav Kokurkin The First Kutafin’s Model United Nations 163

Model United Nations is a role-play simulating the activities of the UN bodies. Members act as representatives of the member states of the Organization and discuss current issues of the agenda of the UN. Young people, participating in such events, have a unique opportunity to explore their own experience of diplomatic work of the United Nations and the decision-making process. The history of the UN models started when students from American colleges began to simulate the performance of the U.S. Senate. Further, with the advent of international organizations, students began to organize role-plays of them. Thus, in 1921, New York University students decided to simulate the work of the League of Nations. Now the simulation work of the United Nations is very popular in many countries. One of the basic Models in Europe is the European International Model United Nations in Hague. In Russia, Moscow International Model United Nations conference is held annually at Moscow State Institute of International Relations. It involves more than 600 participants from all over Russia. The popularity of modeling the UN is growing every year. Thanks to it, thousands of young people around the world learn about various problems human beings face, as well as about complexity of contemporary international relations. The delegates get fundamental knowledge how to negotiate, be able to listen, convince, and realize when to concede or insist on their opinion. Simulation of the United Nations is a special educational system the main elements of which are respect for the rules and laws of civilized discussion, the peaceful coexistence of different opinions and consensus- building. Model UN is a kind of school of life: delegates are put in the situation when they have to choose the right strategy of behavior, make instant decisions and lobby the interests of their countries. Participating in model UN, they get various skills of public speech, as well as in research and preparation of official documents, negotiation and consensus building, conflict resolution, compromise and cooperation. Modeling the UN, students take the place of UN diplomats. They solve the global problems of the world, which real diplomats of the United Nations deal with in real life. Members of the model UN prepare draft resolutions, develop their strategies, negotiate with allies and adversaries, and resolve conflicts according to the rules of United Nations procedure.

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The I KUMUN was held on March 16-18, 2015 at the Kutafin Moscow State University. It brought together 120 participants among whom were students of secondary educational institutions, students and graduates who came to Moscow also from abroad. All participants passed the competitive selection process, which consisted of two stages: thesis writing agenda and interview with an expert. The work was carried out in three parallel simulated committees: the Security Council (agenda – ‘UN Cooperation with international organizations in order to ensure regional security’), the Human Rights Council (agenda − ‘the Legal status of private military companies’), the 6th Committee of the General Assembly (agenda − ‘the Legal basis of international interventions and the boundaries of state sovereignty’). Traditionally, the work of all committees was divided into three stages: the interventions of the delegations with the positions of the countries on the agenda; adoption of the working draft resolution; amendment and adoption of the final resolution. The Security Council had completed their task by the end of the second business day. On the third day of meetings, delegates were offered the crisis situation, modeled by the I KUMUN Secretariat. Suddenly they managed to take the final statement, which was a unique case in the history of Models UN. Delegates’ role is the main factor determining the uniqueness of any Model UN. A very solid grounding of the I KUMUN delegates deserves a special noting. They took into account all the modern geopolitical realities: the representatives of NATO and the CSTO defended opposing points of view in the 6th Committee of the General Assembly; the delegation of the Russian Federation has blocked almost all of the Western bloc’s initiatives in the Security Council, while Brazil and China treated all large-scale suggestions of the Human Rights Council with great caution. In addition, the delegates demonstrated that they were well-prepared from a legal point of view. During the meeting of the conciliation commission delegates of the Human Rights Council fiercely argued about the connecting factor and authoritative international judicial body for disputes involving employees of private military companies. The Security Council discussed various aspects of UN peacekeeping operations, and the 6th Committee of the General Assembly considered the initiative to revive the Military staff Committee of the United Nations. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Dmitry Molchanov and Viacheslav Kokurkin The First Kutafin’s Model United Nations 165

Furthermore, I KUMUN faced with an absolutely unique event: the working draft resolution was not accepted, and as a result conciliation commissions were formed. While this is a common situation for the Security Council when members have veto power, the conciliation commissions of the Human Rights Council and the 6th Committee of the General Assembly will definitely go down in the history of modeling the UN in Moscow. The closing ceremony was held in a warm, cozy and friendly atmosphere with the winners of each committee awarded. Each modeling body chose the most constructive delegate and the most charismatic delegate by secret ballot in the middle of the third working day. The Secretariat expresses its gratitude to all delegates and guests of the conference for the interest and the work done and expects to see all of them in March 2016 at the Second Kutafin’s Model United Nations conference!

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REVIEW

TRADITIONS AND INNOVATIONS IN THE MODERN RUSSIAN LEGAL SYSTEM (On organizing the work of Legal English Panel I within XIV International Young Scholars’ Conference)

By Elena Cherepakhina (Russia)

Author Senior Teacher, English Language Department № 1, Kutafin Moscow State Law University E-mail: [email protected] Abstract The article describes the organizational pre-arrangements for the XIV International Young Scholars’ Conference ‘Traditions and Innovations in the Modern Russian Legal System’ and the complex of measures undertaken to improve the quality of reports on law issues, delivered by student participants within Legal English Panel I. The major improvement measures were aimed at furthering the students’ public speech skills, eliminating mistakes in the written submissions, and enhancing the quality of research through building up cooperation with law teachers. Each stage of preparing included consultations with lawyers. The article also mentions certain administrative measures that will attract more talented students to work at our Panel. The article quotes comparative statistics on the reports of 2014 and 2015. Special attention was paid to assessing the students’ reports by the means of specifically elaborated assessment list, which included five assessment criteria: first − delivery and general impression, second – slideshow quality, third – the language of the report, fourth – the content of the report, fifth − after-speech discussion. The article gives a detailed description of the scope of each criterion and the score intervals, assigned to particular criteria. This year’s important guests of the Panel Session were www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 167

entirely satisfied with the quality of individual speeches and the overall progress the Panel. Keywords Modern law, students’ conference, students’ research, Legal English, quality assessment, assessment list

TABLE OF CONTENTS

I. Introduction ...... 167 II. Improving Legal English ...... 169 III. Research Matters ...... 170 IV. Administrative Support Measures ...... 172 V. Panel Session ...... 172 VI. Report Assessment ...... 173 VII. Panel Results ...... 178 VIII. Acknowledgements ...... 179 Bibliography ...... 180

I. INTRODUCTION

3-4 April 2015 Kutafin Moscow State Law University (MSAL) proudly hosted XIV International Young Scholars’ Conference ‘Traditions and Innovations in the Modern Russian Legal System’, which is now integrated into the framework of the Second Moscow Law Forum. This high-profile event runs a wide variety of diverse law sections, adjoined by a block of legal translation, which handles students’ research reports on law issues drafted in four foreign languages: English, German, Spanish and French. Because MSAL has two English departments, offering different programs, the papers submitted to Legal English Section by MSAL students are heard by two panels (English Panel I and English Panel II), the submissions being respectively streamed by program category. External submissions are allocated between the panels as the departments agree.

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This year Legal English Section has received 39 submissions, of which 34 were from MSAL students and 5 were from Russian regional university students. The submissions were distributed between the panels as 20 for Panel I and 19 for Panel II. On consideration of the competing submissions, Panel I accepted 11 papers, re-directed 8 papers to participate in other events, and rejected 1 paper. Out of the two external submissions received by Panel I, one received extra consultation by e-mail from our teacher (N.M. Golovina) and was admitted, whereas the other was rejected. This year Legal English Panel I worked towards its traditional objectives: — furthering the participants’ public speaking skills in English; — improvement of the language of the written matter; — imposition of the priority of the content; — promotion of the legal approach to the subject at issue and renunciation of the socio-political approach, which rather requires the use of General English; — efficient handling of organizational questions; — optimizing the assessment of the reports delivered at the Panel. These objectives highlight our intent to advance the reports’ overall quality both in terms of the language and the content. The need to enhance the latter component within the framework of a Legal English Panel stems from our awareness of the reciprocal interrelation between the content and the language, and consequently, of the need for simultaneous coordinated measures aimed to better results at both ends. The methodological backup of our work in the field of the language is provided in Recommended Practice for Preparing Speeches, Reports, and Presentations in English within the Practical Course of English (Legal English).1 The publication sets up the requirements for public

1 Cherepakhina E.M. Metodicheskiye recommendatsii dlya studentov po podgotovke soobschenij, dokladov i prezentatsij na anglijskom yazyke po predmetu “Prakticheskij kurs angliyskogo yazyka (jouridicheskiy angliyskiy)” (2013) (Cherepakhina E.M. Recommended Practice for Preparing Speeches, Reports, and Presentations in English within the Practical Course of English (Legal English) www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 169 speaking on law matters in English for MSAL students and offers useful tips on preparing such speeches. Recommended Practice is readily available for students at MSAL web-site. It has survived two iterations of the Conference and will be amended for the next one to sum up the experience of 2014 and 2015 and meet the new challenges.

II. IMPROVING LEGAL ENGLISH

Building up public speaking skills is an essential aspect of the language training for our Panel’s participants. It makes sense to note, that while giving a scholarly speech in Russian, the mode of delivery may to a certain extent influence the general impression, but it will be far from being a decisive factor to influence the opinion of the professional audience. At the same time, if the report is delivered in English, the speech which is read from the notes or recited mechanically, instead of being freely pronounced, gives way to thinking that the speaker’ English or even knowledge of the subject are not good enough. In other words, for Legal English, the mode of delivery is a key issue and a general test for speaking proficiency. In 2014 we confronted two cases of reading the reports from the notes, where the students were very nervous, and in 2015 the problem was completely overcome. Speaking about the quality of the texts in English, produced following the research, it largely depends not only on the students’ endeavor as such, but also on the work of the supervisors, which is not limited to simple grammar check-up, but instead, involves general proof-reading and editing. The first thing we took note of was structural organization and composition of the text, which is an essential factor that ultimately influences the comprehension of the speech. Poorly organized or hectic speeches impede communication and tend to cause irritation on the part of the listeners. We require that the papers should have distinct introduction, main part, and conclusion. Structural elements should be emphasized through functional language, as required in the basic course book of Legal English, used at MSAL.2 The supervisors make

2 Amy Krois-Lindner & Translegal, Introduction to International Legal English (CUP 2006) 55, 137

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 170 KUTAFIN UNIVERSITY LAW REVIEW sure that the expressed ideas are clear, coherent, and arranged in a logical and consistent way. An additional support move that we have made to improve the quality of the texts produced by the students was offering them help in translating quotations from Russian legislation. Considerable amounts of English translations being available at Garant and Konsultant+, the popular Russian law web-sites, the students might still have needed something outside the scope of the ready materials. At the same time, we did not want to see the students go back on their decision to use a relevant quotation from Russian legislation in belief that the task was beyond their knowledge.

III. RESEARCH MATTERS

Technically, students’ reports presented at Legal English Panel are drafted in two ways, depending on their research focus. First is practiced by the students who wish to speak on foreign law. They read many English articles on a particular foreign or international law matter and then produce a piece of information based on what they have read. The second way is common for those who wish to speak on Russian law. They study Russian legislation and then reflect on the respective matters. Out of the total number of 11 submissions, which have met the competition at Panel I, 5 papers dwelt on foreign experience and 6 focused on Russian law issues. Unlike the previous year, which had 4 papers on comparative law, this year had none. Making up a report on foreign matters is apparently an easier task from the language point of view, because the student may pick up all the terminology and wordings ready from the original materials. However, this kind of study should not be underestimated, as reading up on complicated foreign law issues new to the student may pose serious difficulties in comprehension. On the whole, the students, whose research focus is foreign practice, tend to study greater number of sources. Reports on Russian law in English are impossible without good narrative skills. The major challenge for those who have chosen such research focus is finding proper English equivalents to describe local realities. It is noteworthy, that the participants, who speak on Russian law, tend to use fewer sources. They usually concentrate on and make www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 171 references to the legislation and judicial practice. These students do not read as many scholarly articles, but readily offer their own interpretations and comments. This has not always been the case. In the previous years we were presented all kinds of reports ranging from excellent to very simple, based on just one source. In 2013 Recommended Practice imposed the requirement to use two or more sources for the presentations delivered at class. Now we believe that for the purposes of the Conference it is more expedient to direct the students as regards the target number of sources instead of their minimum number. If we try to assess the participants’ research in terms of the number of sources used, we can observe certain increase in the amount of literature studied while drafting the papers. In 2015, 4 of 11 papers included the reference lists of 8 to 13 sources and 6 addressed from 4 to 5 sources. One student spoke about personal experience and failed to provide information about the literature. The non-awardees of 2014 used fewer sources, on average. As to the number of sources addressed by the awardees of 2015, same way, they appeared to be somewhat greater than in 2014, i.e. both first prize winners of 2015 and 2014 used 10 sources in drafting their reports, the second prize winners of 2015 and 2014 used 5 and 8 sources respectively, while the third prize winners of 2015 and 2014 used 10 and 4 sources respectively. The account for the floating of a “better-read” participant from the second step on the podium to the lower one is the inter-dependence between the research focus of the paper and the number of sources, which was explained above. This year the accepted papers broke by the branch of law into the following groups: 3 were dedicated to business law, 2 were devoted to civil justice, 2 – to law students’ extra-curricular activities, 1 – to financial law, 1 – to criminology, 1 – to administrative law, 1 - to international matters. Although there is no formal requirement for law teachers’ recommendation for the reports, submitted to Legal English Panels, we insistently requested students to receive the law teachers’ opinions on their papers. As an extra measure myself, as the Panel coordinator, contacted V.D. Rudakova as a law teacher, to specify, whether the students were right or wrong about particular details or interpretations.

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IV. ADMINISTRATIVE SUPPORT MEASURES

In the previous years we noticed, that some fairly able students, who are willing to participate, are somewhat hesitant about choosing the topic for their research. Some of them eventually stared to work on some matter, while others would drag with the choice for about a month and then give up the idea at the end. To cure the situation with such indecisive starters, we have conceived to accumulate a bank of research themes, contributed by MSAL law teachers and fit for our purposes. We are planning to offer the themes from the bank to 2-nd and possibly – to 3-d year students and not to 4-th year students. We have so far collected the proposals from the Criminal Law Department (prof. T.Y. Oreshkina) and the Department of Constitutional and Municipal Law (associate prof. I.A. Alebastrova), whose kind assistance we sincerely appreciate. This year English Department №1 has made a successful move to obtain an exemption from the Conference’s rule under which one participant was allowed to submit one report only. As of the year 2015 the applicants will be able to submit one report to a law panel and an extra report drafted in a foreign language – to a respective foreign language panel. We do not expect this measure to result in a serious inflow of applicants, however the granted exemption will give an extra chance to versatile talents, who were previously compelled to limit themselves to one submission and quite understandably used to choose in favor of a law panel. With a view to furthering our 2014’s experiment we invited English speaking guest lawyers to listen to our participants. We strongly believe that such a practice will give the session more weight, improve the assessment board decisions, and at the same time, create the new incentives for the students.

V. PANEL SESSION

The panel session was held on April 3, 2015 in the walls of MSAL. Chair of the session called the audience to order by addressing the attendees with a short, but eloquent welcome speech. The session owes her its atmosphere of involvement and keen interest, which later received the attendee’s enthusiastic comment. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 173

The panel session opened with a keynote speech by Honorable Stephen P. Friot, United States District Judge for the Western District of Oklahoma. Judge Friot reflected on the wealth of his experience and gave the audience very useful tips on professional growth and development. His attendance was greatly appreciated by everyone present as a very special favor. We also requested White & Case, Moscow, to honor our session and have their representative participate in the Panel’s assessment board. Ms E.K. Kontiyevskaya who kindly accepted the invitation on their behalf made an important contribution to our work by asking the speakers sophisticated professional questions in English and making valuable comments in the election of winners.

VI. REPORT ASSESSMENT

While preparing the conference of 2014, the English Language Department №1 developed a list of assessment criteria to be taken into account for critical appraisal and rating of the students’ reports delivered at our Panel. For this year’s session the assessment list was revised to reflect the emerging developments and changes. The assessment list was made as a sequence of personal information blocks arranged in the order of giving the speeches. Each block consisted of: sequential speech number, the participant’s photo, the participant’s first and family name and the report title, and the assessment area.

12 3 4

1 Participant’s delivery slideshow language content discussion Name

Report title - 4 to 5 2 to 5 - 9 to 9 3 to 9 2 to 5

The assessment criteria are five: first – delivery and general impression, second – slideshow quality, third – the language of the report, fourth – the content of the report, fifth – after-speech discussion. Each criterion is assigned a score interval. Failure to meet the established 10-minutes’ time limit decreased the final assessment score by 4 popints.

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Because decisions on some assessment criteria may be taken immediately, whereas others take time to come to, the criteria were arranged by deliberation time, instead of by-importance sequence. Although such arrangement seems lacking logic, in reality it has made the appraisal process technically more convenient, and hence, more efficient. At first, we intended to give the features, that make up each criterion, their own score intervals, but later decided, that too many figures would make the calculation too complex, and thus put an excessive workload on the assessment board members, who have to concentrate both on the speeches’ content and the language. Although dis-applied in practical assessment, the individual score intervals assigned to each feature will be quoted here to make the picture complete.

1. The above individual criteria were assigned the following score intervals: Delivery and general impression (from – 4 to 5 points). The criterion ranks the ways in which the participant has delivered his/her report: — Reading the speech from the notes; — Reading combined with speaking; — Mechanical recitation; — Free speech; — Ability to arouse interest and hold the audience. The first two options (Reading; Reading combined with speaking) were to bring the speaker negative scores, Mechanical recitation (oral reproduction the text learnt by heart) was to bring him/her zero points, and the last two options were to win the participant from 1 to 5 points.

2. Slideshow quality (from 2 to 5 points). It is very rare that a participant in a scholarly conference would not compliment his/her speech with a slideshow. However, if such a thing happens, no score deduction occurred, because we commonly treat the slideshow as nothing more than a mere illustration. At the same time, this approach possibly needs to be revised, because slideshow has become part of public speech culture, and if considered from this angle, it has to acquire a negative score interval www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 175 for the failure to provide one. Besides, the participant actually loses the chance to contest for the top rating because of the poor general impression. While weighing the quality of the slideshow the assessment board were to take note of the following two issues: — Does the slideshow explain legal terminology new to the audience or alternatively, provide its Russian equivalents? — Does the slideshow presentation facilitate comprehending the presented material and to which extent? The first question is of specific importance for Legal English panel because the reports often mention new terms and concepts, many of which are difficult to guess from the general context, while others may not be left to guessing and require explanation and/or their Russian equivalents. Therefore, the participants are instructed to reserve an area on the slide where they would place the new terms and their Russian equivalents. We also believe same to be useful practice because not only the speaker but also the audience should take advantage of the report. Failure to make such an entry into the slides was to cut the score by 2. The second question is very general, it reflects the basic attitude to the slideshow as an efficient vehicle for conveying the speaker’s ideas and yet not breaking the proper balance between the substantive and illustrational aspects of the talk. The score awarded by this feature is from 2 up to 5.

3. The language of the report (from – 9 to 9 points). The language criterion encompasses the following features: — Use of functional language; — Structural organization of the report, report composition; — Frequency of mistakes; — Complexity and relevance of the language used. Use of functional language stands out as a separate feature, that reflects the requirement to open a public speech with voicing a roadmap and then verbally introducing new speech items, as imposed by the course book on Legal English, which was already mentioned here. We follow that the speeches should have introduction, main part, and conclusion (failing the former or the latter to result in – 5 points). Structural elements are to be marked either by the use of functional

Volume 2 May 2015 Issue 1(3) www.kulawr.ru 176 KUTAFIN UNIVERSITY LAW REVIEW language (+3 points) or by intonation (+1 point). The expressed ideas should be logically and consistently arranged. Lack of logic or consistency may result in a deduction from the score within the interval from – 6 to – 2, depending on the gravity of disproportion.

4. Frequency of mistakes is the feature to estimate, how frequent and how bad the mistakes are. The weight of the feature is within a very wide interval from – 9 to +9. Complexity and relevance of the language relates to the ability of the participant to employ the language, appropriate for the occasion, subject matter and the purpose of the talk. Some speakers occasionally fall into extremes and come up with passages of long quotations in bold legalese (which quite naturally entails reading from the notes), instead of converting the text into plain language. Another facet of the same problem is undue reliance on General English. However, the feature is not limited to spotting the instances of abuse of either legalese or General English, but also contemplates the speaker’s proficiency in using the right style and tone of the speech. The score interval for this criterion will possibly be revised, because neither of the sessions in 2014 and 2015 had the reports that deserved negative scores.

5. Content of the report (from 3 to 9 points). Together with the language criterion, the “content of the report” make up the core of assessment. The decisive vote in appraising the content belongs to the English-speaking lawyers invited to participate in the assessment board. However, the teachers of Legal English who are also sitting on the board may not be completely excused from assessing the content, because each report has to be considered as a complex. Besides, such move might result in a situation where the board falls into two parts each pressing its professional focus of interest. With the view to making the decision more agreed and levelling off the possible discrepancy in the opinions of the assessment board members, we elaborated the guidelines for the language teachers to help them to give due to law matters and prevent them from underestimating the reports that meet certain formal requirements. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 177

The latter are transformed into the following features: — Importance of the subject matter; — Number of sources used − (1) Russian sources; (2) English sources; — Reasoning and substantiation used to prove the speaker’s opinion; — References to legislation in general; — References to a particular law; — References to an article of a law; — References to expert opinions; — Commenting on the meaning of an article and its legal implications. ‘Importance of the subject matter’ corresponds to the public opinion on the discussed matter and its perceived importance for the improvement in the country; ‘Number of sources used’ reflects the depth and range of the research made; No doubt, it would have been unreasonable to expect the assessment board members to keep the track of references in each speech. Instead, the reference lists were copied from the full papers that the participants had provided earlier and furnished to the assessment board. We decided not to reduce this information just to the numbers and provided it in the detail, because the assessment team might have needed to consider the reliability and competence of the sources, the ratio between Russian and foreign sources, the ratio between references to legislation and expert opinions, etc. ‘Reasoning and substantiation’ focuses on the speaker’s ability to prove his viewpoint; ‘References …’ shows how detailed the speaker’s knowledge is; ‘Commenting on the meaning of an article’ gives an idea about the speaker’s analytical skills. This understanding of the criterion is optional for lawyers, who may use their own approaches in weighing the content of the participant’s work. The content criterion has a score interval within positive numbers only (from 3 to 9 points), because in 2014 and 2015 the reports of socio- political coverage and trivial papers were not granted the admittance to the conference. Had they been accepted, they would have been awarded negative points.

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On the whole, it is important to bear in mind, that the work of the assessment board is a collaborative effort, aimed at taking a good and balanced decision. We believe, that the awardees of our panel shall neither be the participants who speak on the most sophisticated law issues in no better than fair English, nor the participants who speak on trivial problems in very fluent English, but instead be the persons who have enough knowledge in both law and the language to be fit for research and practice on the international level.

6. After-speech discussion (from 2 to 5 points): — Reasoning and substantiation; — Quality of spontaneous speech. The criterion assesses both the participant’s general command of the legal issue and his ability to speak on the spot. As we were not sure about the number of lawyers that we would have at the session, we scrutinized all the papers to make up a standby list of not less than three questions to be asked to each participant after his or her report is delivered. While making up the questions we were well aware that most of them would never be asked. Nevertheless, the Session Chair needed some handy material to step in with and open the discussion, in case the audience keeps silent. The questions were read to and approved by the Business Law Department member assist. prof. E.E. Yenkova, who also suggested a number of questions and provided the key answers for some of the questions.

7. Exceeding the established time-limit on speeches decreased the participant’s final assessment score by 4 points. Harsh as it is, the measure helps impose discipline and makes the participants practice in pronouncing their speeches to meet a simple, yet standard and important requirement.

VII. PANEL RESULTS

All the participants, attendees and presidium members genuinely enjoyed the session. Their opinions will be available at our Department’s page at MSAL web-site. www.kulawr.ru Volume 2 May 2015 Issue 1(3) Elena Cherepakhina Traditions and Innovations in the Modern Russian Legal System 179

The purpose of this Panel is to recognize excellent research on law and legal issues as well as preeminence in public speaking and legal English. The Panel winners will be granted the opportunity to submit the extended versions of their research papers for publication in prominent law journals. We are very pleased to announce our winners of 2015: — Olga Bykanova, whose paper and speech on ‘’’Baseball-Style’’ Innovation in Arbitration’ won the first place; — Sergey Sergeev, whose paper and speech on ‘Combating Unjustified Tax Benefit in the Russian Federation’, took the second place; — Darya Cheburakova, whose paper and speech on ‘Framework Agreements: Traditions and Innovations in Law’, took the third place; — Marya Ovsiannikova whose paper and speech on Liquidation of a ‘Legal Entity in the Russian Federation’, has received a special compliment from White & Case representative. We convey our friendly greetings and compliments to the winners’ scholarly supervisors in legal English (respectively): assist. prof. N.B. Shramkova, senior teacher E.M. Cherepakhina, assist. prof. L.F. Mylitsina, assist. prof. V.V. Kalinovskaya. We are also thankful to other teaches whose tireless efforts and dedication secured a substantial qualitative improvement of the works’ general level.

VIII. ACKNOWLEDGEMENTS

We take this opportunity to express our very sincere gratitude to our colleagues from MSAL law departments, without whose cooperation and valuable advice the panel and individual works presented there would not have had such a success (in alphabetical order): associate prof. I.A. Alebastrova, prof. S.Y. Kashkin, prof. T.Y. Oreshkina, senior teacher V.D. Rudakova, associate prof. A.A. Sitnik, senior teacher V.Y. Slepak, associate prof. E.E. Yenkova. We would like to acknowledge the our guests in the presidium and assessment board members, whose participation in the Panel Session was absolutely indispensible:

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— our guest of honor Judge Stephen P. Friot for his keynote speech, which the attendees describe as unforgettable and his gift of memorable Court Coin; — our special guest E.K. Kontiyevskaya of White & Case, Moscow, who took time from their busy schedule, for her insightful questions and professional service as a judging board member; we also appreciate the kind attention and support of her colleague I. Yakusheva; — our 2014 winner Ksenia Danshina, for her setting up a positive example to the new generations of students and enthusiasm. A special note of appreciation to N.M. Golovina for administrative assistance, and to L.F. Militsina for the excellent performance in organizing and chairing the panel session during my forced absence. Thank you to all who participated. We hope you will expand the skills and knowledges you have acquired with us to excel at our and other conferences.

Bibliography

Cherepakhina E.M. Metodicheskiye recommendatsii dlya studentov po podgotovke soobschenij, dokladov i prezentatsij na anglijskom yazyke po predmetu ‘Prakticheskij kurs angliyskogo yazyka (jouridicheskiy angliyskiy) (2013) (EM Cherepakhina, ‘Recommended Practice for Preparing Speeches, Reports, and Presentations in English within the Practical Course of English (Legal English)‘ accessed 5 May 2015) Krois-Lindner Amy & Translegal, International Legal English (CUP 2006)

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