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The Caspian Sea Convention: New Status but Old Divisions? 里海公约:新地位但旧分歧?
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-12-04 DOI: 10.1163/15730352-04404001
P.-E. Thévenin
The new Caspian Sea Convention signed in Aktau, Kazakhstan, on the 12th of August 2018 puts an end to almost three decades of legal uncertainty and complex negotiations that were by the question of the exploitation of the rich Caspian seabed. Although the significance of the Aktau Convention should not be understated, this article will show that rather than providing a new legal framework for the Caspian Sea, it validates the North Caspian Sea agreements previously signed between Azerbaijan, Kazakhstan and Russia. As a result, these countries stand to benefit the most from this convention, as opposed to Iran, whose propositions do not appear in the final version of the instrument.
2018年8月12日,在哈萨克斯坦阿克套签署的新《里海公约》结束了近三十年来因开采丰富的里海海底问题而产生的法律不确定性和复杂的谈判。虽然《阿克套公约》的重要性不应被低估,但本文将表明,它不是为里海提供一个新的法律框架,而是验证了阿塞拜疆、哈萨克斯坦和俄罗斯之前签署的北里海协议。因此,这些国家将从这项公约中获益最多,而伊朗则相反,伊朗的主张没有出现在该文书的最终版本中。
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引用次数: 2
Are Croatian Courts Prepared for the Interpretive Obligation? 克罗地亚法院为解释性义务做好准备了吗?
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-12-04 DOI: 10.1163/15730352-04404003
Antonija Ivančan, Davor Petrić
This article discusses compliance with the interpretive obligation by Croatian courts five years into Croatia’s membership in the EU. Our aim is to analyze whether Croatian courts have (and, if so, to what extent) accepted this obligation. We will first review the Croatian courts’ record of compliance with the interpretive obligation during the pre-accession period, and revisit some of the existing findings. In the second part, we turn to analysis of the Croatian courts’ record of compliance with the interpretive obligation following accession. Some of the key findings are: higher national courts have accepted that the EU interpretive obligation binds all national courts; lower national courts have fully embraced this obligation; the Constitutional Court struggles with adopting a clear position on the interpretive obligation. We conclude by observing whether EU membership has contributed to the transformation of legal culture and the relationship between different judicial instances in Croatia.
本文讨论克罗地亚法院在克罗地亚加入欧盟五年后对解释性义务的遵守情况。我们的目的是分析克罗地亚法院是否(如果有的话,在何种程度上)接受了这项义务。我们将首先审查克罗地亚法院在加入前期间遵守解释性义务的记录,并重新审议一些现有的调查结果。在第二部分,我们转而分析克罗地亚法院在加入后履行解释性义务的记录。一些关键的发现是:高等国家法院已经接受欧盟的解释性义务对所有国家法院具有约束力;下级国家法院已经完全接受了这一义务;宪法法院很难就解释义务采取明确的立场。我们通过观察欧盟成员资格是否有助于克罗地亚法律文化的转变和不同司法实例之间的关系来得出结论。
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引用次数: 0
Audiovisual Regulation in Russia in the Context of Council of Europe Standards 欧洲委员会标准背景下的俄罗斯视听法规
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403006
E. Sherstoboeva
This paper explores, mainly from a legal perspective, the extent to which Russian regulation of traditional TV and online audiovisual media policies has been consistent with Council of Europe (hereinafter CoE) standards. The study compares the CoE and Russian approaches to specific aspects of audiovisual regulation including licensing, media ownership, public service media, digitalization, and national production. The paper first studies the CoE perspective through examining its conventional provisions related to audiovisual media regulation, the case law of the European Court of Human Rights as well as CoE non-binding documents. The study proceeds to consider Russian national law governing audiovisual media and the practice of Russian courts of general jurisdiction on broadcast licensing. The paper suggests that Russian audiovisual regulation is insufficiently compatible with CoE standards and mainly seeks to maintain excessive governmental control over the audiovisual sector in a digital environment.
本文主要从法律角度探讨了俄罗斯对传统电视和在线视听媒体政策的监管在多大程度上符合欧洲委员会(以下简称CoE)的标准。该研究比较了欧洲委员会和俄罗斯在视听监管的具体方面的做法,包括许可、媒体所有权、公共服务媒体、数字化和国家生产。本文首先通过考察其与视听媒体监管相关的常规条款、欧洲人权法院的判例法以及欧洲人权法院的非约束性文件来研究欧洲人权法院视角。本研究接着审议了俄罗斯关于视听媒体的国家法律和俄罗斯对广播许可具有一般管辖权的法院的做法。本文认为,俄罗斯的视听法规与CoE标准不够兼容,主要是为了在数字环境中维持对视听部门的过度政府控制。
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引用次数: 2
Towards a Fresh Engagement in Rule-of-Law Cooperation: Supporting the Compliance Movement in Russia 对法治合作的新参与:支持俄罗斯的合规运动
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403003
Thomas Kruessmann
Rule-of-law dialogue between the West and Russia has effectively run into a dead end. This paper attempts to open up a new perspective by addressing the corporation as a sub-unit of society. Observing that Russia, before adopting a comprehensive legal framework for risk management in Summer 2018, has had almost 20 years of experience in various approaches to risk management and corporate compliance, the question is whether corporate law has finally reached the point of shedding some of the characteristic features of Russian law in general to turn the corporate sphere into a space in which citizens are able to pursue their business interests in a safe and legally protected manner. Thus, we may be on the eve of witnessing the emergence of a rule-of-law culture outside the traditional domain of citizen-state relations. This would open up avenues for a renewed dialogue on rule of law between the West and Russia.
西方与俄罗斯之间的法治对话实际上已经走入了死胡同。本文试图通过将公司作为社会的一个亚单位来研究,从而开辟一个新的视角。观察到俄罗斯在2018年夏季通过全面的风险管理法律框架之前,在各种风险管理和公司合规方法方面拥有近20年的经验,问题是公司法是否最终达到了摆脱俄罗斯法律一般特征的程度,使企业领域成为公民能够以安全和法律保护的方式追求其商业利益的空间。因此,我们可能正处于见证公民与国家关系传统领域之外的法治文化出现的前夕。这将为西方和俄罗斯之间关于法治的新一轮对话开辟道路。
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引用次数: 0
The Rule of Law under Pressure: Russia and the European Human Rights System 压力下的法治:俄罗斯与欧洲人权体系
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403005
J. Kahn
This article is based on a keynote address given at the 10th Annual Conference on the Development of Russian Law held at the Faculty of Law, University of Helsinki, on 20–21 November 2017, by Professor Marianna Muravyeva. The article, which reflects political developments at the time of its delivery, explores the origins and consequences of the decision to accept Russia’s application for membership in the Council of Europe.
本文基于Marianna Muravyeva教授在2017年11月20日至21日于赫尔辛基大学法学院举行的第十届俄罗斯法律发展年会上的主题演讲。这篇文章反映了其发表时的政治发展,探讨了接受俄罗斯加入欧洲委员会的决定的起源和后果。
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引用次数: 0
Is There Rule of Law in Russia: Revisiting the Concept and Practice 俄罗斯有法治吗:重新审视法治的概念与实践
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403007
Marianna Muravyeva
Globalization challenges many of the traditional assumptions about domestic law, international law, their relationships, the ways in which law is created and the methods of its enforcement.1 Law has traditionally been the province of the nation state, whose courts and police enforce legal rules. By contrast, international law has been comparatively weak, with little effective enforcement powers. But globalization is changing the contours of law and creating new global legal institutions and norms. It also brings universal concepts such as rule of law and good governance to national systems and local legal environments.2 As ‘rule of law’ has become part of the global lexicon, its precise meaning has become increasingly opaque.3 There is an agreement with the principle that law should apply in equal measure to everyone, irrespective of wealth or political status; ‘equal justice under law’ is generally accepted as the foundational principle of the rule of law. Coupled with good governance principles, the application of these concepts to the Russian legal context reveals complex issues that need to be discussed beyond the Russian domestic sphere. Such discussion is even more important in situations leading to global law or universal law concepts, which require a diverse set of legal systems that
全球化挑战了许多关于国内法、国际法、它们之间的关系、法律的产生方式和执行方法的传统假设法律历来是民族国家的事务,由法院和警察执行法律规则。相比之下,国际法相对薄弱,几乎没有有效的执行权。但全球化正在改变法律的轮廓,创造新的全球法律制度和规范。它还为国家制度和地方法律环境带来了法治、善治等普遍概念随着“法治”一词成为全球词汇的一部分,其确切含义变得越来越模糊人们一致认为,法律应平等地适用于每个人,无论其财富或政治地位如何;“法律面前人人平等”被普遍认为是法治的基本原则。再加上善治原则,这些概念在俄罗斯法律环境中的应用揭示了需要在俄罗斯国内领域之外讨论的复杂问题。这种讨论在导致国际法或普遍法概念的情况下更为重要,因为这需要一套多样化的法律体系
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引用次数: 0
Good Governance and Property Rights of the State: The Dubovets Case before the European Court of Human Rights and the Russian Constitutional Court 善治与国家财产权:欧洲人权法院和俄罗斯宪法法院审理的杜博韦茨案
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403002
Grigory Vaypan
This contribution discusses the recent Dubovets case before both the European Court of Human Rights and the Russian Constitutional Court, and its implications for the changing design of Russian property law as increasingly shaped by international human rights law and good governance principles. Communicated in December 2016, the application in Dubovets v. Russia continues the line of the European Court’s cases against Russia on the protection of good faith private owners of real estate against property claims by the government. Prompted by this case law, the Russian Constitutional Court in its Judgment of 22 June 2017 No 16-P struck down Article 302 of the Russian Civil Code as unconstitutional insofar as it entitled the government to reclaim possession of state property that had been previously alienated due to the government’s own negligence. This judgment manifests the increasing interdependence between private and public law – of classical property law, on the one hand, and international human rights law and good governance principles, on the other hand. It also contributes to ongoing evolution in the understanding of the state’s property rights in Russia: from the superior status of public property in Soviet times – to formal equality between public and private property rights in the landmark legal instruments of the 1990s – and now to the growing need for special protection of individual property rights vis-à-vis the state, in light of the latter’s double role as both the largest owner and the (quite unrestrained) regulator.
这篇文章讨论了最近在欧洲人权法院和俄罗斯宪法法院审理的杜博维茨案,及其对日益受到国际人权法和善治原则影响的俄罗斯物权法设计变化的影响。2016年12月,Dubovets诉俄罗斯案的申请延续了欧洲法院针对俄罗斯的案件,即保护善意的房地产私人所有者不受政府财产索赔。在这一判例法的推动下,俄罗斯宪法法院在2017年6月22日第16-P号判决中推翻了《俄罗斯民法典》第302条的违宪规定,因为该条规定政府有权收回此前因政府自身疏忽而被剥夺的国有财产。这一判决显示了私法与公法之间日益增长的相互依存关系——一方面是古典物权法,另一方面是国际人权法和善治原则。它还促进了对俄罗斯国家产权理解的持续演变:从苏联时期公共财产的优势地位——到20世纪90年代具有里程碑意义的法律文书中公私产权的正式平等——到现在越来越需要对-à-vis国家的个人产权进行特殊保护,因为后者既是最大的所有者,又是(相当不受约束的)监管者。
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引用次数: 1
National and International Rule of Law: Proclaimed Adherence and Real-Life Policies 国家和国际法治:公开的遵守和现实生活中的政策
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-09-05 DOI: 10.1163/15730352-04403004
Sergey Marochkin
The main purpose of this article is to analyze the correlation between ‘black letter’ law and its real-life implementation. The correlation is to be examined in light of countries’ and the international community’s proclaimed goal, namely to embed and implement the ‘rule of law’ principle domestically and internationally. Within the context of legal and political documents, as well as statements by political personalities, the rule of law has become the dominant vector for development. It is proclaimed to be one of the basic principles of legal orders in many countries and in the international community. But is the rule of law the most important characteristic of legal orders inside of states and, what is more important, between them? Is there an actual willingness on the part of states to strengthen the international rule of law?This article observes the origins and characteristics of the rule of law in particular with respect to Russia. Both domestic and international rule of law impact each other. Some forms of this interaction and their mutual influence are characterized below.The study also traces intent as formalized in international declarations and their de-facto stance toward the rule of law and international law.This scrutiny enables the conclusion that ‘black letter law’ and real-life application do not currently coincide. There are clear contradictory trends relating to this basic principle at both national and international levels. The first contradiction lies in the entrenchment and implementation of the principle by regulatory means. The second contradiction reveals discrepancies between regulatory instruments and real actions and policies. The article evaluates predispositions for these opposing tendencies; it also assesses alternative prospects for the development of international law and the rule of law.
本文的主要目的是分析“黑体字”法律与其现实实施之间的相关性。这种相关性将根据各国和国际社会所宣称的目标来考察,即在国内和国际上嵌入和实施“法治”原则。在法律和政治文件以及政治人物的声明的范围内,法治已成为发展的主要媒介。它被许多国家和国际社会宣布为法律秩序的基本原则之一。但是,法治是国家内部法律秩序的最重要特征吗?更重要的是国家之间的法律秩序?各国是否有加强国际法治的实际意愿?本文考察了俄罗斯法治的起源和特征。国内法治与国际法治相互影响。这种相互作用的一些形式及其相互影响的特点如下。该研究还追溯了国际宣言的正式意图及其对法治和国际法的实际立场。经过仔细审查,得出的结论是,“黑字定律”和现实生活中的应用目前并不一致。在国家和国际两级,关于这一基本原则出现了明显的相互矛盾的趋势。第一个矛盾在于通过规制手段来巩固和实施这一原则。第二个矛盾揭示了监管工具与实际行动和政策之间的差异。本文评估了这些对立倾向的倾向;报告还评估了国际法和法治发展的各种前景。
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引用次数: 0
Constitutional Courts and the Rule of Law in the New EU Member States 欧盟新成员国的宪法法院与法治
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-06-11 DOI: 10.1163/15730352-04402004
A. D. Gregorio
This paper analyses the use of the rule-of-law principle in the jurisprudence of the constitutional courts of the new Member States of the European Union. The purpose is to discover whether past or recent decisions could clarify the use of the principle in these countries. An example is the legalistic concept of the rule of law as expressed by the Hungarian and Polish constitutional courts in examining the constitutionality of lustration laws. On the other hand, some constitutional courts (such as the Czech one) have used a wider and more sophisticated application of the rule of law. Considering the severe rule-of-law crisis which has been taking place in Hungary and Poland in recent years, this recognition is particularly important in order to avoid cumulative judgments that could devalue the former communist countries in general, trivializing the harsh path of democratic conditionality with its strengths and weaknesses.
本文分析了欧盟新成员国宪法法院在判例中对法治原则的运用。目的是发现过去或最近的决定是否可以澄清这些国家对这一原则的使用。一个例子是匈牙利和波兰宪法法院在审查示范法的合宪性时所表达的法治主义概念。另一方面,一些宪法法院(如捷克的宪法法院)使用了更广泛和更复杂的法治应用。考虑到近年来在匈牙利和波兰发生的严重法治危机,这种认识特别重要,以便避免可能使前共产主义国家普遍贬值的累积判断,轻视民主条件的严酷道路及其优缺点。
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引用次数: 2
The “Lex Nord Stream 2” and its Potential Impact “莱克斯北溪2号”及其潜在影响
IF 0.2 4区 社会学 Q3 LAW Pub Date : 2019-06-11 DOI: 10.1163/15730352-04402002
Nina Zafoschnig
This article examines the proposed amendment to the Third Gas Directive, which extends the applicability of the core principles of EU energy legislation to import pipelines from third countries within EU territory. The article describes the potential impacts of this amendment, in particular regarding the Nord Stream 2 gas pipeline, and why this amendment can be considered a “Lex Nord Stream 2”. Furthermore, the article gives an overview of the applicable primary and secondary legislation and core principles of EU energy law.
本文研究了第三项天然气指令的拟议修正案,该修正案扩大了欧盟能源立法核心原则在欧盟领土内从第三国进口管道的适用性。本文描述了该修正案的潜在影响,特别是关于Nord Stream 2天然气管道,以及为什么该修正案可以被视为“Lex Nord Stream 2”。此外,本文还对欧盟能源法适用的一级立法和二级立法以及核心原则进行了概述。
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引用次数: 2
期刊
Review of Central and East European Law
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