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MAIN PAGE > Journal "International Law" > Contents of Issue № 03/2014
Contents of Issue № 03/2014
International law and national law
Babin B. - International Legal Grounds for Access to Justice for Indigenous Peoples in Crimea pp. 1-31

DOI:
10.7256/2306-9899.2014.3.12550

Abstract: Article researches the situation, connected with providing the access to justice for indigenous peoples that have the historic native land in the Crimea. Politic and legal processes that let this problem to become actual in conditions of interstate conflict are watched at. Legal and organizational mechanisms of realizing the individual and collective rights of indigenous peoples in Crimea are determined at. The positions of interested states are compared at, grounds of international organizations’ and global structures’ approaches are lighted in. Components of right of indigenous peoples on justice are detailed; their realization for indigenous peoples of Crimea becomes too actual now. Author uses the formal legal, comparative and hermeneutic approaches for analysis the normative basis in a complex; political science, sociologic and statistic methods are used also. Problem of access for indigenous peoples to justice in conditions of the interstate conflict in researched in a world practice in first time. Author develops the propositions addressed to UN connecting to the providing of the right of indigenous peoples to justice in the Crimea. He proved the duty of the international monitoring of those processes. Role of the UN Declaration on the Rights of Indigenous Peoples is determined; the duty for both states to implement it for providing access to justice in Crimea is proved at. Materials of article were used by author in his report to the UN Expert Mechanisms on the Rights of Indigenous Peoples on its 7th session, 2014.
Gidirim V. - The concept of "beneficiary ownership" in the international taxation. pp. 32-192

DOI:
10.7256/2306-9899.2014.3.10812

Abstract: The concept of beneficiary ownership is among the most debatable concepts in the modern theory of international tax law. Initially the term beneficiary owner has appeared in the trust law of the Great Britain in order to distinguish between the person having basic economic profits from property or trust income and a formal owner of property. However, later this concept was transferred into the international tax law, and it became a popular norm against unlawful use of treaties against double taxation (treaty shopping). The third type of concept of beneficiary owner belongs to the spheres of administrative and financial law, and it is connected to the issues of disclosure of a final beneficiary in a corporate structure.  The issue of recognizing a person as a beneficiary owner is a subject to both scientific discussions and serious disputes in the legal practice of the latest decades, including administrative and judicial practice in the states with developed economies. The absence of clear criteria for defining this term and presence of insoluble contradictions in its interpretation make the position of taxpayers involved in international economic activities even more difficult. These contradictions may not be regarded as being resolved at the moment when this article is written even after the additional interpretations by the OECD Tax Committee in 2012. The practical issue of beneficiary ownership of income is especially topical in the corporate structures of multinational corporations when using intermediary companies, having functions of holdings or subholdings, as well as functions of ownership and use of intellectual property, sub-licensing and transit (back-to-back) finaning within the group. The problem of beneficiary ownership also became especialy topical in the Russian Federation lately in the context of state initiatives on de-offshoring and attempts to limit abuse of international tax treaties. This article concerns theoretical aspects of the concept of beneficiary ownership of income for the purpose of application of tax convention. Special attention is paid to the value of this term in the national law of the states as an instrument of fighting against the tax agreements, interpretation of the beneficiary ownership for the purpose of international treaties and its application in the international judicial practice. Currently interpretation and application of the concept of beneficiary ownership in the international taxation is vague and contradictory. These contradictions may not be regarded as being resolved at the moment when this article is written even after the additional interpretations by the OECD Tax Committee in 2012. The author for the first time in the Russian tax literature attempts to generalize the existing views on the issues of application of this concept in the international taxation. 
International organizations and peaceful resolution of disputes
Shinkaretskaya G.G. - What it means "to resolve a dispute in an international court"? pp. 193-200

DOI:
10.7256/2306-9899.2014.3.11641

Abstract: The article concerns the nature and complications of international justice. The author studies specific practices of international courts regarding resolution of international legal disputes.  The author also pays attention to the issue of non-enforcement of judicial decisions of the international courts and the measures, which the international courts take in order to avoid this problem.  The author writes that resolution of international legal disputes, as well as provision of consultative opinons, form the main function of the international judicial institutions. The meaning of this function is to assist normal relations between the states, and it is aimed at having a real influence upon the international relations. In the opinion of the author to resolve an international legal dispute is to restore normal neighbourly relations between the conflicting states.  Law serves as means and not a goal in this process. Of course, a body resolving a dispute should not go outside the boundaries of law, but an overly formal approach towards its functions may finally lead to loss of the very meaning of its existence.
Abgaryan D. - The disputes on immediate release of seized vessels and their crew in the practice of the International Tribunal for the Law of the Sea. pp. 201-226

DOI:
10.7256/2306-9899.2014.3.11602

Abstract: The article contains analysis of various issues regarding interpretation of the UN Convention on the Law of the Sea of 1982, which were faced by the International Tribunal for the Law of the Sea (ITLOS) in the course of dealing with the cases on immediate release of seized vessels and their crews. The main part of the problem is dealt with based upon the judicial practice of the International Tribunal for the Law of the sea. The author uncovers the main tendencies in the judicial practice of the International Tribunal for the Law of the Sea, novelties and norm-making of this judicial body on the issues of immediate release of the seized vessels and their crews. The author studies the issues of confiscation (of a fishing boat in cases on unlawful fishing in an exclusive economic zone), bails and material guarantees, grounds for the seizure of foreign vessels in an exclusive economic zone, procedural issues regarding admissibility of claims for the International Tribunal for the Law of the Sea (namely,  presence of a real connection between a vessel and a protecting state, the need to exhaust the local legal remedies, presence of sufficient evidence).
International courts
Fedorchenko A.A. - Participation of a victim as a claimant or an accuser in the international criminal process. pp. 227-248

DOI:
10.7256/2306-9899.2014.3.11702

Abstract: The article concerns the issue of participation of a victim in the international criminal process as a claimant or an accuser, taking an example of the judicial proceedings of the International Criminal Court and international ad hoc tribunals. The author studies the issues of participation of victims in the International Criminal Court, specific features of their participation at the various stages of international criminal process, possible forms of their participation in the international criminal process, obligations of the Secretariat of the ICC in guaranteeing participation of a victim in a process, participation of victims in the proceedings in the international criminal ad hoc tribunals. The author also evaluates specific issues regarding complicated character of participation in the international criminal process (for example, large number of victims), problems of lack of wish of the victims of crimes to take part in a public hearings. The author makes a conclusion that participation of a victim in the international criminal process is organized with the various provisions of the ICC Charter, so that the Prosecutor would not ignore their interests in his activities, and also so that the right for compensation would not become meaningless. Nevertheless, the author points out the weakinesses of these provisions regarding participation of a victim at some stages of the international criminal process.
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