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60OF THE EURO-ASIAN LAW CONGRESS
Информация для цитирования:
Толстых В.Л., Безбородов Ю.С., Лазутин Л.А., Кожеуров Я.С. ВЗАИМОДЕЙСТВИЕ ПРАВОВЫХ СИСТЕМ: СОВРЕМЕННЫЕ МЕЖДУНАРОДНО-ПРАВОВЫЕ ДИСКУРСЫ // Herald of The Euro-Asian Law Congress. 2018. № 1. С. 109-121.
Tolstykh V., Bezborodov Y., Lazutin L., Kozheurov Y. INTERACTIONS OF LEGAL SYSTEMS: MODERN INTERNATIONAL LEGAL DISCOURSES. Herald of The Euro-Asian Law Congress. 2018. Is. 1. Pp. 109-121.
УДК 341
LAW051000 LAW / International
ВЗАИМОДЕЙСТВИЕ ПРАВОВЫХ СИСТЕМ: СОВРЕМЕННЫЕ МЕЖДУНАРОДНО-ПРАВОВЫЕ ДИСКУРСЫ
ВЛАДИСЛАВ ЛЕОНИДОВИЧ ТОЛСТЫХ, Новосибирский государственный университет (Новосибирск, Россия)
ЮРИЙ СЕРГЕЕВИЧ БЕЗБОРОДОВ, Уральский государственный юридический университет (Екатеринбург, Россия)
ЛЕВ АЛЕКСАНДРОВИЧ ЛАЗУТИН, Уральский государственный юридический университет (Екатеринбург, Россия)
ЯРОСЛАВ СЕРГЕЕВИЧ КОЖЕУРОВ, Московский государственный юридический университет им. О.Е. Кутафина (МГЮА)
(Москва, Россия)
Введение: в статье рассматриваются вопросы доктрины современного международного права, международно-правовой интеграции, международной безопасности и международной ответственности с целью исследования закономерностей развития международного права и взаимодействия правовых систем.
Методы: сравнительно-правовой, формально-юридический.
Анализ: наряду с традиционными формами высказывания научных позиций возникли новые, связанные с интернет-технологиями. Языком обсуждения научных вопросов стал английский. Все больше внимания уделяется научно-практическим проблемам, меньше - теоретическим. Происходят изменения в методологии международного права, оно становится «технологией», процессом механистического оспаривания, отбора, соединения и презентации ограниченного набора аргументов. Международное право выступает универсальным средством сближения национальных правовых систем.
Результаты: делается вывод, что современная доктрина международного права не является целостной. Набирает обороты правовая конвергенция - процесс сближения различных правовых систем и моделей правового регулирования с помощью международно-правовых средств. На сегодняшний день ни на универсальном, ни на региональном уровнях эффективной системы безопасности не существует. Международная ответственность развивается, ее содержание обновляется за счет права ВТО.
Ключевые слова: глобализация; правовая система; международная ответственность; международное право; международная безопасность; международно-правовая интеграция.
UDC 341
LAW051000 LAW / International
INTERACTIONS OF LEGAL SYSTEMS: MODERN INTERNATIONAL LEGAL DISCOURSES
VLADISLAV L. TOLSTYKH, Novosibirsk State University (Novosibirsk, Russia)
YURY S. BEZBORODOV, Ural State Law University (Yekaterinburg, Russia)
LEV A. LAZUTIN, Ural State Law University (Yekaterinburg, Russia)
YAROSLAV S. KOZHEUROV, Kutafin Moscow State Law University (Moscow, Russia)
Introduction: the article deals with the doctrine of modern international law, international legal integration, international security and international responsibility. The aim - to study the development of international law and the interaction of legal systems.
Methods: comparative legal, formal-legal.
Analysis: there are new forms of expressing scientific positions along with traditional forms. It is connected with Internet technologies. The language of discussion of scientific issues is English now. More attention is paid to scientific and practical problems, less to theoretical ones. There are changes in the methodologies of international law, it becomes a «technology», a process of mechanistic challenge, selection, connection and presentation of a limited set of arguments. International law is a universal means to bring together national legal systems.
Results: It is concluded that the doctrine of international law is not holistic now. The legal convergence is the process of convergence of various legal systems and models of legal regulation by international legal means. More over, there is no effective security system both at the universal or regional levels. International responsibility is developing. Its content is being updated at the expense of WTO law.
Key words: globalization; legal system; international responsibility; international law; international security; international legal integration.
INTRODUCTION
The current doctrine of international law is not holistic. The main fault lines can be marked as follows. Firstly, like any other legal doctrine, the doctrine of international law reproduces natural and positive legal arguments. Expressions of arguments are formal concepts are able to be filled with any content depending on the context. M. Koskenniemi calls this phenomenon reversibility and believes that it ensures the independence of the international legal doctrine from morality and politics [Koskenniemi 2006]. Thus, the concept of custom, the positive nature of which is expressed by the requirement of openio juris, in practice serves to conduct the natural-legal ideas of justice; most often international courts do not bother to prove all the elements of the custom, producing it from the «unfertilized egg»
[Chigara 2001]. Conversely, the concept of human rights, which is recognized as natural law, in practice depends on the will of political actors. This will be determined by factors specific to each society: economic structure, form of state, social and political challenges, etc. [Koskenniemi 2011: 131-167]. In the decision in Wachauf, July 13, 1989, the Court of Justice noted: «The fundamental rights recognized by the Court, however, are not absolute but must be considered in relation to their social function. Consequently, the exercise of these rights may be subject to limitations, particularly in the context of the overall organization of the market, provided that these limitations are in fact consistent with the realization of the General interest pursued by the Community and do not constitute, in terms of the objective pursued, disproportionate or unac-
ceptable interference that encroaches on the very essence of these rights» (paragraph18).
Secondly, despite the existence of common approaches, the doctrine of international law retains its national legal specificity. Perhaps, the leading position is occupied by the English school of international law, traditionally emphasizing the formal and practical aspects of international law and ignoring its ontology. This vector was set by G. Lauterpacht, calling for the use of private analogy in the framework of international law [Lauterpacht 1927]. It is the English doctrine that defines the development of the law of treaties, the law of international responsibility and many other application-oriented industries. The American school works at the intersection of law and political science: it is characterized by a critical emphasis and promotion of mixed theories (the concept of governance, feminist approach, structuralism, etc.). We can say that while the English school is trying to create a holistic system of law, the American school seeks to destroy it; in recent years, American authors have presented noteworthy criticism of customary law [Kelly 2000: 449-543], international security law [Glennon 2001] and ect. The German school of international law moved away from the development of general questions and philosophical aspects, which it dealt with in the first half of the XX century., and today it is mainly engaged in formal structures, bringing them to its inherent thoroughness. Particularly fruitful is the analysis of human rights law (the principle of proportionality) and the theory of the relationship of the rule of law (the concept of pluralism A. Peters and A. von Bogdandy [von Bogdandy 2001: 617-654]). In its formalism, German science does not follow in the wake of the English school; rather, we are talking about the development of ideas of Kelsen. The French school is in some decline: the great works available are rather good compilations, not independent works. This is partly due to the shift in the attention of French scholars to european law issues. Russian science is also experiencing a crisis, the manifestations of which are underdeveloped techniques of interpretation; subordination of legal discourse to political attitudes; lack of attention to historical, political and cultural aspects
of law [Толстых 2016]. Completing the review of national doctrines, it should be noted the recent rise of the Scandinavian school, mainly due to the work of Finnish scientist M. Koskenniemi.
Thirdly, the issue of political preferences has become very important. This is not a traditional and customary cross-section of this issue, involving the choice of a position on a particular issue of inter-state relations, but rather the definition of a preferred scenario for the development of the international community as a whole, i. e., a global choice. There are several such scenarios. According to the first in the foreseeable future, the international community will remain a community of sovereign States; according to the second, the real power will belong to one state (the United States), which imposes its political ideals on the rest and at the same time keeps them in a subordinate position («hegemonic liberalism» [Хабермас 2008: 171-177]); according to the third, a world state will gradually be formed, solving global problems based on the principles of the rule of law and democracy [Jes-sup 1968: 2]; according to the fourth, a multilevel, network structure will be formed, which does not have a specific center, the elements of which will be national States, supranational institutions, non-governmental organizations, transnational corporations, etc.; finally, according to the fifth, uncertainty and internal tension will remain until the moment of the global historical turning point, the essence and consequences of which are difficult to predict. According to J. Friedrichs, international lawyers are faced with a choice: 1) they can seek to create a fourth social system (along with politics, the market and civil society) -the system of the Empire Of law (the term R. Dvorkin); 2) they can seek to obtain status beyond politics, the market and civil society, comparable to the status of medieval scholastics and involving the resolution of conflicts between social systems; 3) they may reflect the divisions of the new order, i. e. specialize in the law of international politics (inter-state law), the law of the international market or the law of international civil society [Friedrichs 2004: 26-27]. Be that as it may, the necessity of this choice must be realized (even if the choice itself is sometimes very difficult).
Fourthly, there was a methodological distinction unfamiliar to international law of the XX
century - a distinction between specialists in general part of international law and specialists in separate branches. This distinction is due to the sharp increase in the volume of international legal information and the fragmentation of international law (complication of its structure). As a result, each scholar has a choice: to deal with general problems of international law at the expense of the accuracy and validity of conclusions, or to deal with special problems at the expense of the general notion. At first glance, the options are equivalent, but with closer examination, the first involves much more intellectual effort related to the need to generalize the normative array and practice and the subsequent removal of the «positivist veil» and the detection of the essence of legal structures. In this regard, the majority of authors make a choice in favor of specialization. As a result, the science of international law (like any other modern science) appears to be a very strange construction: explicit and distinct in its secondary manifestations and intermediate conclusions, it is hidden and uncertain in its very basis. Basic issues such as the concept of a state, the content of the principle of self - determination, the nature of customary law, etc., were unresolved and opaque.
Fifthly, pluralism of opinions about certain issues remains: humanitarian intervention, preventive self-defence, the nature of recognition, the need to create new organizations, etc.These opinions are justified every time by new combinations of positivist and natural-legal arguments, changing in the transition to the next thesis. Apparently, it is necessary to agree with the representatives of the critical school J. Boilies and M. Koskenniemi, according to which scientific positions ultimately reflect the substantial ideas of justice that lie outside the sphere of rationality and sometimes unconscious by the authors themselves.
We should mention some changes in the discursive environment of the doctrine of international law, i.e. changes in institutions, formats and techniques of discussion here. In general, these changes are characterized by proliferation of forms and platforms, intensification of polemics and unification of substantive discourse, i. e. reduction of the once wide argumentation field to a set of simplified axioms (human rights
and a new environmental agenda). Some changes should be dealt with in more detail.
Firstly, in parallel to the traditional forms of scientific statements (journals, textbooks, dissertations, reports), new forms have emerged, usually tied to Internet technologies: electronic journals (including electronic versions of «stationary» magazines), notes on forums and social networks, video conferences, etc. These new forms, on the one hand, ensure the efficiency of the scientific response and the possibility of a broad debate, and, on the other hand, change the very focus of the scientific debate, which is becoming more practice-oriented and designed for emotional response and less pluralistic and deep.
Secondly, English has become the language of scientific debate almost everywhere; it has become almost impossible for scientists from other countries to hear their views in any other language. On the one hand, as in the previous case, it provides a wide range of controversies. On the other hand (and this is often overlooked), pictorial means of the English language (as in any other language) are limited, its use implies the adoption of concepts of general law, along with the expansion of the circle of participants in the discussion there is a cut off of those who do not speak English or for some reason do not want to speak it. The problem, therefore, is not so much the fact of the use of English as the totalitarianism of the requirement.
Thirdly, the content of the discussion is changing: more and more attention is paid to scientific and practical problems and less to theoretical ones. Scientists rarely reflect on the concepts of «state», «law», «norm», etc. and, increasingly, on specific events. As in previous cases, this assessment cannot be unambiguously determined. On the one hand, focusing on practical aspects, international law proved to be of practical utility. On the other hand, it ceases to be a science, i. e. a way of generalizing, synthesizing and disclosing transcendence. Ultimately, it lowers scientific analysis to the level of short-term benefits and makes humanity vulnerable to global threats.
Fourthly, the monopolization of international legal science and practice by Anglo-Saxon research centers takes place. In a broad sense, they include not only British or American cen-
ters, but also Dutch, German and any other centers focused on the use of English language and Lauterpacht's methodology. A good illustration of this phenomenon is the fact that of the fifteen active judges of the international court of justice, nine received English (6) or American (3) education (full or partial). This trend is certainly negative: it nullifies the achievements of other scientific schools, narrows the field of controversy, prejudges the results of the scientific discussion.
Fifthly, the University grounds, which represent the broadest basis for science, are undergoing a process of profound transformation. The essence of this process is the gradual reorientation of University education to the needs of the market economy and the severance of ties between the University and the state. This reorientation fundamentally changes the meaning of international law, which is artificially detached from its original purpose of ensuring peace, justice and universal order and becomes an instrument for the spread of global capitalism, neocolonialism and social inequality.
Sixthly, there have been major changes in the methodology of international law. International law is increasingly becoming a technology, that is, a process of mechanistic selection, challenge, joining and presentation of a limited set of arguments. This is manifested both at the global level - in the nomination of new legal concepts, which, upon closer examination, turn out to be repetitions of once expressed positions that do not contain anything fundamentally new, and at a purely technical level - in the design of scientific articles, the preparation of applications for grants, etc. Such technocratisation testifies to the stagnation of science and the need for a new breakthrough. It seems that if such a breakthrough can be made, it will be made within the framework of natural law theories.
INTERNATIONAL LEGAL INTEGRATION
It is difficult not to agree with the statement that the whole history of mankind is a history of mergers and associations. The social essence and nature of man leads, pushes him to various forms of associations - in groups, in the family, in society and even in the state. Aristotle called man a «social animal» because man exists in society and needs in such a society because
of the need for not only physical survival, but also of communication. Fichte wrote that «man is destined to live in society; he must live in society; he is not a complete complete human being and contradicts himself if he lives in isolation» [Фихте 1998: 20].
The same social and legal problems are solved «equally or to a large extent in all developed legal systems of the world». This makes it possible to speak about the «presumption of identity» (presumptio similitudinis) in law [Цвайгерт, Кетц 2000: 59].
Human-created legal regulators interact closely, and to determine these processes formed «a whole range of concepts and designating their terms: legal acculturation, legal globalization, legal reception and others. All these concepts characterize the interaction of legal systems to one extent or another, but they do not address all the nuances of various legal relationships. In this regard, a new concept enriches the theory of interaction of legal systems, such as „legal convergence"», into scientific circulation [Гюльвердиев 2015: 220].
The term «convergence» comes from the Latin word «convergere», which generally refers to convergence and the pursuit of convergence. Convergence is a polysystem term and is used in many branches of science: mathematics, Economics, biology, chemistry, literature and directly in legal science. The definition given by convergence in one of the English encyclopaedia dictionaries emphasizes this polysystem, multiplicity and ambiguity: convergence is an act, state, quality or fact of rapprochement [American Heritage Dictionary 2016].
In consequence of the convergence turned his scientific eye researchers-lawyers. In one of his works S.S. Alexeev came to the conclusion that rapprochement is an external manifestation of deeper processes transforming the world of law, which can be called legal convergence, which, as it were, «gathers together», integrates, often in specific, modernized forms, the advantages of the world's basic legal systems. He noted that the development of legal systems was moving in the same direction, albeit with different variations. Thus, S.S. Alekseev defined legal convergence as the development of legal systems in one direction, resulting in the mutual enrichment
of the law in different limits and ultimately a kind of integration in law, which are combined into a single legal entity, in a holistic legal structure advantages and achievements of different areas of law, different systems. It is as a result of legal convergence (integration) in the legal systems of democratically developed countries there are known features of commonality, a kind of «new uniformity», which allows us to consider them «together», to see them as some «one» and from the legal side, while - so, a hundred they form in this unity «the right of civilized people» [Алексеев 2010: 514].
In the case of convergence of national legal systems, it is logical to assume that such convergence will be primarily related to the functioning of specific international legal mechanisms. But even with this in mind, will the convergence of international law, even if she uses the international legal methods and forms? In this sense, we have no reason to assert the existence of an international legal convergence. International law itself could not be brought closer together - it was already the quintessence of the legal experience of States and was the only one, despite the trend towards fragmentation. International law is itself a means of rapprochement, not of itself, but of national legal systems. We can assert the existence of a convergence effect (when we talk about the universalization of international legal regulation, such phenomena as unification, harmonization and integration in law), which produces international law by specific means inherent only to it.
In the international legal sense, legal convergence is the process of bringing different legal systems and models of legal regulation of public relations closer together through international legal means. Despite the fact that «the law of different countries is formulated in different languages, uses different techniques and created for a society with very different structures, mores, beliefs» [Давид 1996: 18], however, it is constantly being brought closer together and integrated. And this happens with the help of international law, its universalizing effect. As an example, we can draw attention to the relationship between international criminal law and national criminal law in terms of the qualification of transnational crimes, in terms of the precedent
content of war crimes and crimes against humanity - this is a vivid example of the manifestation and implementation of the process of convergence in domestic law [Лазутин 2008]. International law universalized humanitarian standards (educational, health, etc.), rules for the use of the sea and outer space. The practice of concluding and implementing international treaties was also universalized by the Vienna Convention 1969.
Legal convergence is a long process that takes a very long time. This duration is partly due to differences and contradictions in the objectives of the States to which they aspire in the particular circumstances. Another reason for its length in time is the difficulty of developing uniform (uniform) rules, when the task is to formulate a new rule that generalizes different legal rules.
The immediate problem of bringing national legal systems closer together through international legal means has been puzzled since the Nineteenth century. when uniform (uniform) law began to be developed, which, once adopted by the States concerned, would replace differing provisions of national law [Лунц 1973: 24]. At a certain stage of the regulation of individual relations sooner or later there will be a need to adopt common legal norms, as happened with the adoption of the Convention on road signs and signals of 1968. signed by States «recogni-zing that the uniformity of road signs, signals and symbols and road markings at the international level is necessary to facilitate international road traffic and to increase road safety». In this particular case we are dealing with convergence in the form of unification.
Taking into account the presented doctrinal approaches, the following definition of legal convergence from the point of view of international law can be given - this is the process of convergence of national legal systems associated with the activities of legal entities in international law, held at the universal and regional, multilateral and bilateral levels using specific legal universalizing methods and in different forms, in order to achieve unity and uniformity of legal regulation.
In scientific terms, it would be wrong to absolutize international legal convergence, since the latter can generate negative trends in legal
expansion, absorption and dilution of national traditions of legal regulation and national identity of legal culture, which do not always correspond to national realities. Even in XX century among some representatives of Western legal and political science the idea of «negative convergence» (G. Markuze, J. Habermas et al.), according to which different socio-economic and political and legal systems inherently assimilate each other not so much positive as negative elements. The example with the concept of multiculturalism laid down in the rule of law of the UN and the Council of Europe, a concept that today gives obvious failures at the national level, as it is transformed there hastily and clearly without taking into account national peculiarities, can be indicative. In such periods of convergence failure, when the processes of convergence face problems of implementation at the international and national levels, the processes of fragmentation come into force (become more active) to enable «work on mistakes», to take into account the shortcomings of previous experience in the regulation, to gain experience at the regional or narrower level.
In any case, international law with its special means and methods is at the forefront of convergence legal processes. Convergence as a legal category is closely related to the process of expanding the subject of international law - the range of relations that this right regulates. A significant expansion of this subject is currently developing in two directions: 1) in the framework of the first of them is characterized by regulation of the regulatory system of new directions of interstate cooperation; 2) the content of the second determines the deep penetration of the regulatory impact of international law into domestic relations. In this regard, science highlights many ways of interaction and influence of international law on the legal system of the individual state, in particular, its legislative base (reference, reception, transformation, implementation, adaptation, legiti-mization).
Legal convergence is closely intertwined with various related legal phenomena, such as globalization, universalization, fragmentation, suprana-tionality, sovereignty, integration, unification and harmonization. It often happens that some scientists analogizing these concepts, blurring the boundaries between them, while between them there are some differences in terms of content.
INTERNATIONAL SECURITY
The aggravation of international relations, especially between the Russian Federation and the United States of America and its allies in the NATO's bloc, could not but affect the effectiveness of international law as a regulator of international relations.
In the entire system of international law, international security law has a special role to play as a branch of contemporary international law. At the present stage, the industry, in fact, has become the leading, because it is aimed at maintaining international peace and order. But the reality is that in recent decades there have been more and more hotbeds of tension. We are talking not just about local conflicts (Ukraine), but also about international armed conflicts (Syria, Afghanistan). All calls for the resolution of these conflicts by peaceful means (through negotiation) do not produce the desired result. Given all this, political scientists are increasingly talking about the need to rethink the law of international security as a branch of international law, to radically reassess the existing systems of international security (political, legal, economic, etc.) to ensure global law and order.
First of all, we are talking about improving the universal system of collective security functioning within the UN. It is traditionally believed that the UN is the most unique and legitimate organization of the world community, which has moral authority and serves as a guarantor of peace. In recent decades, however, this view has been questioned. The analysis of current events in the world confirms the opinion that the UN does not fulfill its mission in full, both for objective and subjective reasons. The UN security Council, as one of the most important UN bodies called upon to react promptly and take concerted measures to localize armed conflicts, is practically unable to reach consensus due to different approaches and interpretations of universally recognized principles of international law. The warring States, when adopting a security Council resolution using the veto, block the most effective solutions and mechanisms to ensure peace (resolutions on Syria). Moreover, the resolutions adopted (legally binding) by a number of States have not been implemented. When big politicians and diplomats
say that it is necessary to achieve the implementation of the resolution, it is puzzling and indicates the low efficiency of this UN body. The United States in recent years generally ignore the UN, for example, without the consent of the security Council (and only its sanctions can use coercive force) carry out aggression against Syria, inflicting on its territory a missile strike, while committing an international crime.
Undoubtedly, such a policy of states and the corresponding reaction of the security Council raises doubts among a number of States about the implementation of the main goal of the UN -«to save succeeding generations from the scourge of war».
Regional systems of international security such as the North Atlantic Treaty organization, the Organization for security and cooperation in Europe, the Shanghai cooperation organization, the collective security Treaty organization, etc. have different international statuses, levels of international legitimacy and membership. Until now, they are not United by common competence and intent, they have different political perspectives. Moreover, some of them are in conflict with each other. Thus, the NATO's bloc today is of concern to the Russian Federation, because with the termination of the existence of the USSR and the Warsaw Pact, this military-political bloc has not reduced, but on the contrary, by joining the countries of Central and Eastern Europe, expanded its area of application, significantly increased the Armed forces, pushing them close to the borders of the Russian Federation. This situation is exacerbating international tensions not only in Europe but throughout the world.
It is regrettable to say that today there is no effective system of international security at the universal or regional levels.
International security can be achieved through a combination of mutually reinforcing factors: the security of an individual state depends on the security of all states, the security of all presupposes the security of each state. The need for active action in the process of ensuring international security is due to the originality of the method of regulation, the impact on the clearly expressed position of the subjects of international legal relations. The question in this
case is o concepts provide multilateral security: common security, common security and security through cooperation.
The concept of collective security is the most developed in theoretical and practical terms. Its feature was the unprecedented scale of universality, including the requirements of the actions required from each member of the system, the automaticity of sanctions in case of necessity, the absence of differences in the understanding of aggression and the need to respond to it. NATO's work is a clear demonstration of the functioning of the collective security concept.
The concept of common security has established itself as an alternative to the traditional notions of the role of armed forces in resolving international problems, as well as in overcoming the prevailing stereotypes of world regulation based on the basic parameters of States and coalitions, introducing an element of a universal Treaty, an informed balance of aspirations and self-restrictions due to the universal interest in stability and improvement of the system. The concept of common security since the mid-1970s has become an integral part of the pan-European process, the philosophical Foundation of the Helsinki act of 1975 and other documents of the CSCE/OSCE.
The concept of cooperative security is very similar to that of common security. If, within the framework of the collective security system, States unite against a common possible (or valid) aggressor, the concept of cooperative security is based on the principle of common participation, in which the existence of formal institutions is optional and the maintenance of informal dialogue seems more appropriate and effective.
One of the most important problems of modern international law is the elaboration of a new content of the subject of legal regulation of international security law and the definition of its methods and principles. International security issues are universal, States have to come into contact with them in almost all areas of international relations, so it is possible to consider the subject of international security law in view of its collective nature and specific focus. The subject of legal regulation of the law of international security is the relations associated with ensuring international security, including measures to pre-
vent nuclear and any other war, confidence-building and the reduction of military confrontation.
We believe that the term «integrated indus-try», an industry in which norms are United in a special community by being separated from other branches, can be used to describe the law of international security. As for the method of legal regulation of law between people's security, it is manifested through the implementation of the principle of equality and equal security. This principle is disclosed through such categories as «balance»,«reciprocity»,«equity», which are reflected in all contracts and agreements relating to this branch of law.
INTERNATIONAL RESPONSIBILITY
As a typical example of an autonomous regime, WTO law is a lex specialis vis-a-vis general international law, demonstrating in some cases noticeable features or exceptions to general rules. One of these features is the GATT and GATS regime applicable in the case of so-called «non-collapse», that is, acts that lead to the cancellation or reduction of the benefits of another WTO member, regardless of whether such acts are contrary to WTO law obligations.
According to paragraph 1 of article XXIII of GATT 1994 if a party considers that any benefit it has received, directly or indirectly, is extinguished or reduced, or that the achievement of any objective of the Agreement is impeded by: (a) the failure of the other party to comply with its obligations under this Agreement, or (b) the application by the other party of any measure, whether or not it is in conflict with the provisions of this Agreement, or (c) any other situation, the dispute resolution mechanism, or the rules and procedures governing the settlement of disputes, in a whole (in respect too costly 1(a) or only article 26 of the DRC (in relation to paragraph 1(b), 1(c). In the latter case, the obligation to eliminate the measure does not arise, but it is necessary to settle the issue on a mutually acceptable basis, including by referring to arbitration in accordance with paragraph 3 of article 21 of the DRC, which can determine the level of reduction or cancellation of benefits, as well as to offer the parties ways and means of a mutually acceptable settlement, However, such proposals are not binding on the parties.
Similar provisions contain the General agreement on trade in services (GATS) of 1994 According to item 1 of article XXIII of GATS, «if any member considers that any other member does not fulfill the General or specific obligations under this Agreement, it can address to DRS for the purpose of achievement of mutually acceptable solution of the question». In item 3 of article XXIII GATS States: «If any member considers that any benefit it reasonably expected to receive under the specific obligations of another member under part III of this Agreement shall be extinguished or reduced by the application of any measure that is not inconsistent with the provisions of this Agreement, it may request the DRC». If the LFS determines that the measure will nullify or reduce such benefits, the member affected by the change shall be entitled to a mutually acceptable settlement on the basis of article 2.21 GATS (i. e., compensation), which, in addition to compensation, may also include modifying or withdrawing such a measure. A specific feature of the GATS, unlike the GATT guidelines, is that if no agreement can be reached between the parties, article 22 of the DRC applies, i. e. the member affected by the reduction or cancellation of benefits may, with the authorization of the LFS, apply to the retroactive suspension of assignments or other obligations (countermeasures).
Referred to in subsection 1 a of article XXIII of the GATT and paragraph 1 of article XXIII of GATS, the basis - the «classical» international wrongful act, the responsibility for which Articles on responsibility of States prepared by the UN international law Commission in 2001, But the situations envisaged in paragraphs 1(b) and 1(c) of article XIII of the GATT and paragraph 3 of article XXIII of GATS, go beyond them, because it is not connected with the offense. In this regard, the basis of liability for cancellation or reduction of benefits provided for in paragraphs 1(b) and 1(c) of article XXIII of GATT 1994, together with the consequences set out in the article 26 DRS, as well as the grounds and consequences provided for in paragraph 3 of article XXIII GATS, are a completely new, not provided for by General international law legal regime.
It should be noted that among all the cases considered in the GATT/WTO system, the num-
ber of cases on so-called «non-collapse» situations is extremely small: under item 1(c) of article XXIII of the GATT cases in the practice of the GATT/WTO did not exist at all, under item 1(b) of the same article of the GATT before the creation of the WTO only 8 cases were considered, and after the creation of the WTO (since 1995) only four cases reached the consideration of arbitration groups. In two cases, the plaintiffs were denied, in two ORS did not consider the reference to paragraph 1(b) of article XXIII GATT, since he established a violation in this case (paragraph 1(a).
In many respects, with the cases under item 1 (b) of article XXIII of the GATT in the era before the establishment of the WTO the appearance of being the product of «judicial activism» of the arbitration groups, the GATT concept of «reasonable expectations».
The most complete legal aspects of a liability regime for actions that are not inconsistent with obligations under GATT, was considered by the arbitration panel in the case «Japan - Measures concerning consumer photographic film and paper» (Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R. 31 March 1998). In this case, the group not only confirmed and summarized the findings of previous groups, but also introduced a number of innovations. Pointing out that previous cases were mainly related to the consideration of financial measures (mainly subsidies) that resulted in «deceiving» «legitimate (reasonable) expecta-tions» and a reduction in benefits, the panel stressed that it could not exclude that the concept also applied to other (non - financial) industrial policy measures: «whether assistance Is financial or non-financial, direct or indirect, does not in itself determine whether the measure affects the reduction of the expected results of tariff negotiations»(para. 10.38).
The panel has formulated three legally relevant circumstances to be demonstrated by the claimant state invoking article XIII, paragraph 1(b), of the GATT: (1) the application of a measure by a WTO member; (2) the benefit under the relevant agreement; and (3) the cancellation or reduction of benefits as a result of the measure (para. 10.41).
With regard to the notion of measure, the panel has interpreted it broadly to include not
only laws and regulations, but also governmental actions and orders of a binding nature, but also, under certain conditions, decisions of a recommendatory nature, as well as a system of measures implemented by influencing the conduct of private actors. At the same time, the measure must be in force (applied) at the time of consideration of the dispute (paras. 10.49, 10.56, 10.59).
In the second element, the panel confirmed the concept of «legitimate expectations»: «in order for the expectations of benefits to be legitimate, the measure in question should not be reasonably predictable at the time the tariff concession agreement was adopted. If the measure was predictable, the member state could not have legitimate expectations of improved market access to the extent that the measure resulted in a reduction of the benefit» (para. 10.76). The group came to the conclusion that in respect of measures taken after the conclusion of tariff agreements, the presumption of their unproductiveness, but this presumption may be rebutted by the defendant. With regard to measures taken before the conclusion of agreements, on the contrary, there is a presumption of their foresight, which, in turn, can be refuted by the applicant (for example, by reference to the vagueness of the measures, the subsequent change in the practice of its application, etc.). In any case, the question of reasonable expectations in each case must be considered individually based on all the circumstances of the case.
With regard to the third element, «cancellation and reduction of benefits» appeared to be a «violation of competitive relations» between local and imported goods, with the most difficult to establish being the causal link between the measure taken and the deterioration of competitive relations. To address the issue of causation, the panel has put forward four criteria: 1) the extent of the causation to be demonstrated «if not» or less (in the panel's view, it is sufficient that the measure contribute «more than de minimis to such cancellation or reduction»; 2) the relevance of the origin-neutral nature of the measure to establish the cause of the cancellation or reduction; 3) the impact of the intention to establish a causal relationship; 4) the extent to which the measures can be considered as col-
lective for the analysis of the causal relationship (para. 1083).
Thus, in the WTO law (and in practice of arbitration groups and appellate body interpreting provisions of GATT in which there is no word on the concept of «lawful expectations») the unique mode of responsibility laid down in item 1 (b) of article XXIII of GATT and item 3 of article XXIII of GATS for the actions which are not incompatible with the specified agreements that is not violating the WTO right develops. This regime is unknown to General international law, although some analogies, at first glance, may arise in connection with the regime developed by the UN International law Commission liability - liability for damage caused by accidental consequences of lawful activities. However, the latter concern transboundary damage caused mainly to the environment as a result of the physical effects of hazardous activities, that is, they regulate environmental protection issues and constitute the primary obligations of States to prevent the occurrence of harmful effects and to ensure adequate compensation. In this regard, the «non-collapse» (non-violence) regime under WTO law is closer to the regime of responsibility than liability, since it concerns the consequences
of the Commission by States of acts leading to the cancellation or reduction of the benefits that partner-states could reasonably and legitimately expect at the conclusion of tariff agreements, but in no way is reduced to the regime of responsibility and is not some special «type», as it is not caused by a violation of international obligations (the only and necessary basis of liability/responsibility).), a violation of the stability and predictability of the international trading system, the balance of mutual trade benefits and advantages. In virtue of the specific features and goals of this system and its governing law and the WTO will be «borrowing» this regime in other spheres of interstate relations beyond the economic.
CONCLUSION
Nowadays international law is the basis of the world legal order. International law has an impact on the development of legal systems, their integration. This process was called «legal convergence». In addition, world political situation poses new challenges related to ensuring international security. Due to the influence of international organizations established for the development of economic cooperation of different states, the institution of international legal responsibility is evolving.
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ИНФОРМАЦИЯ ОБ АВТОРАХ
Владислав Леонидович Толстых - доктор юридических наук, доцент, заведующий кафедрой международного права Новосибирского государственного университета (ул. Пирогова, д. 1, Новосибирск, Россия 630090; e-mail: [email protected])
Юрий Сергеевич Безбородов - кандидат юридических наук, доцент, доцент кафедры международного и европейского права Уральского государственного юридического университета (ул. Комсомольская, д. 21, Екатеринбург, Россия 620137; e-mail: [email protected])
Лев Александрович Лазутин - доктор юридических наук, профессор, заведующий кафедрой международного и европейского права Уральского государственного юридического университета (ул. Комсомольская, д. 21, Екатеринбург, Россия 620137; e-mail: [email protected])
Ярослав Сергеевич Кожеуров - кандидат юридических наук, доцент, доцент кафедры международного права Московского государственного юридического университета им. О.Е. Кутафина (МГЮА) (ул. Садовая-Кудринская, д. 9, Москва, Россия 125993; [email protected])
INFORMATION ABOUT THE AUTHORS
Vladislav L. Tolstykh - doctor of juridical sciences, professor, head of the Chair of international law, Novosibirsk state university (1 Pirogova St., Novosibirsk, 630090, Russia; e-mail: [email protected])
Yury S. Bezborodov - candidate of juridical sciences, associate professor, associate professor of the Chair of international and European law, Ural State Law University (21 Komsomolskaya St., Yekaterinburg, 620137, Russia; e-mail: [email protected])
Lev A. Lazutin - doctor of juridical sciences, professor, head of the Chair of international and European law, Ural State Law University (21 Komsomolskaya St., Yekaterinburg, 620137, Russia; e-mail: [email protected])
Yaroslav S. Kozheurov - candidate of juridical sciences, associate professor, associate professor of international law department of Kutafin Moscow State Law University (9 Sadovaia-Kudrinskaia St., Moscow, 125993, Russia; e-mail: [email protected])
Дата поступления в редакцию / Received: 28.04.2018
Дата принятия решения об опубликовании / Accepted: 22.05.2018
© В.Л. Толстых, 2018 © Ю.С. Безбородов, 2018 © Л.А. Лазутин, 2018 © Я.С. Кожеуров, 2018
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