FEATURES OF CONTRACTUAL AND LEGAL REGULATION OF SCIENTIFIC COOPERATION BETWEEN RUSSIA AND THE STATES OF SOUTHEAST ASIA

FEATURES OF CONTRACTUAL AND LEGAL REGULATION OF SCIENTIFIC COOPERATION BETWEEN RUSSIA AND THE STATES OF SOUTHEAST ASIA

Polina Ivanova

Master of Law, Kutafin Moscow State Law University,

Russia, Moscow

The main task facing modern developing countries, freed in the last century from direct colonial dependence, was the creation of economic and, most importantly, technological sovereignty, excluding unequal economic cooperation and the possibility of applying to them any technological restrictions and other sanctions by developed Western states. One of the main directions of the formation of technological sovereignty has become scientific and technical cooperation – both mutual and with states that advanced in the twentieth century in the field of science and technology, including the Russian Federation. The development of mutual scientific and technical cooperation is also one of the significant measures taken to ensure a stable multipolarity of the world, measures to counter the creation of a unipolar world.

A sharp reduction in cooperation with the European Union and the United States, which occurred not at the will of the Russian Federation, leads to the need to develop Russia's interstate relations in the East, including with the developing economies of Southeast Asia, to which our state, developing the scientific and technical potential of the USSR, is able to offer advanced technologies in space, atomic and nuclear-energy, telecommunications, agricultural, seismological, climatic, defense (in the field of weapons development) and other programs. The prospects of the Russian Federation in Southeast Asia are particularly expanding due to the formation of a free trade zone at the ASEAN (Association of South East Asian Nations) level, which, according to economists, is the largest in the world, since it covers 2.2 billion consumers and economies with a gross domestic product of $ 28 trillion [1].

In turn, many countries of Southeast Asia, which have made significant progress in the production of microelectronics, petrochemicals, are still lagging behind in the development of their scientific and technological research. Thus, "own expenditures for research and development (R&D) in different years from 2002 to 2009 amounted to: in Brunei - 0.04%, in Cambodia - 0.05%, in Indonesia - 0.08%, in the Philippines - 0.11%, in Myanmar - 0.16%, in Vietnam - 0.19%, in Thailand - 0.2%, in Malaysia - 0.63% of their GDP, which was inferior, in some cases significantly, to the level of R&D spending not only in industrialized countries (2.43%), but even the average for all developing countries (1.07%)." [2, p. 67]. Under such conditions, cooperation with the Russian Federation, which is able to offer many technological solutions, looks promising for the Southeast Asian states and meets their objective interests, despite all the risks of secondary sanctions that may follow from the United States and the European Union.

For the development of scientific and technical cooperation of Russia in Southeast Asia, there is also a necessary legal basis: even the Protocol, which amended the wording of the Treaty on Friendship and Cooperation in Southeast Asia [3], allowed the inclusion of participating countries that do not geographically belong to this region.

In the context of sanctions restrictions on the international relations of the Russian Federation, which largely amount to a ban on access to foreign scientific and technological achievements, national sovereignty in the field of technology can be ensured by expanding its scientific and technical cooperation with all interested states. At the same time, the principle of mutual benefit of cooperation could be supplemented by the principle of refusal of the state with which cooperation is carried out from joining technological sanctions against the Russian Federation

Expansion of scientific and technical cooperation between Russia and the states of Southeast Asia is possible, as it seems, in two directions:

- by creating a common international legal regime of scientific and technical cooperation within the framework of the Association of Southeast Asian States;

- by developing certain areas of scientific and technical cooperation at the bilateral level, in particular, by concluding additional bilateral agreements regulating specific areas of such cooperation.

The creation of a common international legal regime of bilateral cooperation has already been considered in science in relation to the Eurasian Economic Union. According to scientists, such a regime should consist of the following elements: "ideology, regulatory regulators, subjects of legal relations, a single digital space, finance, risks." [4, p. 34]. While agreeing with the need to consolidate the overwhelming majority of these elements in international documents on scientific and technical cooperation, it should be noted that the element of ideology in regulated relations is hardly appropriate. The point is not even that the Constitution of the Russian Federation in paragraph 2 of Article 13 imperatively denies any ideology as mandatory or state [5], but that the consolidation of ideological norms as legal (which in itself is doubtful) would limit the freedom of science, without which its development is impossible.

It seems more reasonable for the legal regime to consolidate within the framework of the Association of Southeast Asia the principles of scientific research, scientific development and scientific cooperation between States, including such principles as:

- freedom of scientific search;

- formation of a tolerant attitude towards the goals, directions, methods, means and results of joint scientific research;

- confidentiality of the scientific and technical information obtained during the interaction.

In addition, the proposed list obviously omitted such an important element as a dispute resolution mechanism based on the mandatory action of a dispute resolution body common to the Association regarding the ownership and use of the results obtained in the scientific and technical field. It seems that the creation of such a body on a parity basis would contribute to the general strengthening of trust between its parties and would significantly accelerate the expansion of scientific and technical cooperation. Such a body could hardly be the arbitration courts already operating in Southeast Asia that resolve commercial disputes (taking into account the interstate nature of relations), but it could well be an interstate body similar in its competence to the Intellectual Property Rights Court in Russia. Unfortunately, such a body has not been created in the ASEAN structure (as well as in the APEC structure).

Common (with the possible exception of Singapore) areas of development of scientific and technical cooperation with Southeast Asian states are such as defense technologies, aircraft manufacturing, and cybersecurity solutions.

However, the problem of developing scientific and technical cooperation is not limited only to prospects: sanctions imposed on the Russian Federation by Western states are currently becoming a significant factor in this cooperation.

In the briefest summary, the problem of Western (it should be emphasized: we are not talking about international, but specifically about American and European) sanctions boils down to the following.

Sanctions are one of the directions in which the global build-up of restrictive (protectionist) measures is objectively implemented. Western States (mainly with high external debt) apply these measures to developing countries. In connection with the expansion of this phenomenon in recent years, it therefore seems appropriate to single out the sanctions regime as a separate problem to be investigated from the standpoint of its impact on international agreements on scientific cooperation – especially since seven "packages" of various European sanctions have already been introduced against the Russian Federation.

Two circumstances related to the application of sanctions are also important.

Firstly, these sanctions have been codified since 2017. Thus, their application does not depend on a single US politician or senator, nor on the entire US Senate, nor on the US President individually. In other words, their application does not depend on an individual: they are applied as a federal law, which expresses consolidated political will and makes it difficult to counteract them. On the other hand, since we are talking about the wording of a static normative act, it is possible to identify sanctions exceptions and gaps in codified texts.

Secondly, these sanctions are extraterritorial, that is, they apply to all US citizens regardless of their location. For example, if a US citizen is an employee of a person from the SDN list, he is obliged by virtue of this law to take all possible actions to block his property. Thereby citizenship (residency) The United States excludes any possibility of cooperation with sub-sanctioned persons.

Thirdly, these sanctions are applied not only to sub-sanctioned persons, but also to persons in which sub-sanctioned persons have a 50% (or more) share of corporate participation (50% rule). In some cases, the identification of such participation requires a certain amount of time, and corporate and financial transparency, which is not yet inherent in all jurisdictions.

Fourth, the dangerous property of sanctions is their collective nature: not only the traditional satellites of the United States - Canada and Australia, but also European states (the European Union, Norway), i.e. all high-tech economies, consistently join the sanctions worked out in the United States.

Fifth, the most dangerous feature of sanctions is their so-called secondary application, that is, their "automatic" distribution to all persons cooperating with the sanctioned persons. The risk of secondary sanctions, or rather, the risk of their secondary application to persons cooperating with sub-sanctioned persons, is also aimed at forming the status of a "rogue state" or "rogue state" in global technological communication.

It is secondary sanctions that turn out to be the most dangerous for the Russian Federation in the process of its scientific cooperation with the states of Southeast Asia, since in case of their violation, these states also lose opportunities for scientific and technical cooperation with the United States.

Countering these sanctions seems to be one of the most difficult tasks facing the multilateral and bilateral legal regulation of scientific and technical cooperation with the Southeast Asian States.

Perhaps one of the most effective directions of such counteraction is the so-called "package" international treaty law-making, i.e. the adoption of complex international agreements regulating many issues at the same time, including sanctions, with the inclusion of norms creating exceptions from the general sanctions regime. Evaluating, for example, the aforementioned "package" grain agreement signed in July 2022 by Russia, Ukraine and Turkey (with the participation of the United Nations, i.e. this Agreement can be recognized as quadripartite), it is possible to identify in it a refutation of some sanctions. Despite the closed nature of this Agreement, experts suggest that several types of sanctions were lifted from Russia on the basis of this Agreement. In other words, such "package" agreements would allow preserving the freedom of scientific cooperation between the Southeast Asian states and Russia, regardless of "secondary" sanctions.

Russia's entry into new international agreements, both multilateral and bilateral, can be called another direction of countering the restriction of freedom of scientific and technical cooperation. However, at present (and until the completion of a special military operation), such agreements covering international scientific and technical cooperation are not expected.

Finally, Russia's entry into new (not necessarily open to wide access) international agreements may be due to the development of so-called parallel imports. By Decree of the Government of the Russian Federation No. 506 dated 03/29/2022, it was established that the Ministry of Industry and Trade of the Russian Federation, on the proposals of federal executive authorities, approves the list of goods (groups of goods) in respect of which the provisions of Paragraphs 6 of Article 1359 and Article 1487 of the Civil Code of the Russian Federation do not apply, provided that these goods (groups of goods) are put into circulation outside the territory of the Russian Federation by copyright holders (patent holders), as well as with their consent [6]. This list was approved already in April 2022 [7], turned out to be extremely wide for application and received various – both positive and negative assessments.

It should be noted that the problem of the theory of parallel imports (related to the doctrine of exhaustion of law) in Russia began to be studied in 2017, while even then experts identified both positive and negative sides of this method of ensuring the Russian market – both from the standpoint of intellectual property rights and from the standpoint of consumer protection. However, the logistics routes of imports themselves were not investigated, and therefore relations with the states from which parallel imports were supposed to be left without proper research.

Meanwhile, building such relationships seems to be the task of the present. The lack of the necessary legal interaction has already affected customs procedures (at the Russian-Georgian border), as well as the technological features of import logistics. In particular, from the point of view of technological features, the so-called "false transit" [8] is of interest, allowing to acquire and use the results of technical cooperation in Russia regardless of the imposed sanctions. It seems expedient to implement, if not international legal, then at least national legal regulation of these transportation operations, as was done with respect to intellectual property objects by Decree of the Government of the Russian Federation No. 506 of 03/29/2022. In this case, all these operations will receive, in any case, national legalization – regardless of their assessments in foreign law and order.

Finally, it seems appropriate to form a separate international settlement system for such technological cooperation – similar to the one that was formed by European states for trade with Iran. We are talking about the INSTEX system (Instrument in Support of Trade Exchanges), or "instrument of support in trade operations"), which excludes tracking the movement of funds paid both for goods of "parallel import" and for the transportation of these goods. This system, created in 2019 by Western European states (France, Germany and the United Kingdom) in order to circumvent the sanctions imposed on Iran by the United States of America, could also be fully used by the Russian Federation (to pay for transportation and sanctioned cargo with a destination in the Russian Federation), but – in order to circumvent only US sanctions. In order to circumvent European sanctions, it seems appropriate to form settlement systems at the bilateral interstate level that cannot be tracked by either the United States or the European Union.

It also seems appropriate for the Russian Federation to recommend the activation of the activities of the pro-Russian part of the Russian-Malaysian Commission and the Business Council for Cooperation with Malaysia to identify medium and small businesses developing (at least as startups) high-tech products. It also seems appropriate to increase, on the part of the Business Council, information support for small and medium-sized Russian businesses in relation to the scientific and technical needs of the Malaysian side. It is also possible to purposefully expand (for example, as part of the public procurement system) scientific and technical research in order to develop Russian-Malaysian cooperation. Since in these cases the entire spectrum of interaction can hardly be reduced to an Agreement on ICT, it seems advisable to sign more narrowly regulated agreements defining cooperation between the parties in specific issues.

References:

1. The ASEAN agreement on the world's largest free trade zone has been signed. – Text: electronic // EurAsia Daily. – 2020. – November 15. – URL: https://eadaily.com/ru/news/2020/11/15/podpisano-soglashenie-asean-o-krupneyshey-v-mire-zone-svobodnoy-torgovli (accessed: 07/25/2022)
2. Boitsov V.V. South-East Asia in a globalizing world: century-old trends and modern trends / V.V. Boitsov // Eastern Analytics. - 2012. – No. 1. - pp. 63-75.
3. The Treaty of Friendship and Cooperation in Southeast Asia [rus., Eng.] (Signed in Denpasar on 02/24/1976) (with ed. dated 23.07.2010) // Collection of legislation of the Russian Federation. 2012. No. 43. St. 5791.
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5. The Constitution of the Russian Federation. Adopted by Popular vote on December 12, 1993 (with amendments approved by Popular vote of 01.07.2020) // Collection of Legislation of the Russian Federation. 2014. No. 9. St. 851; 2020. No. 11. St. 1416.
6. About goods (groups of goods) in respect of which certain provisions of the Civil Code of the Russian Federation on the protection of exclusive rights to the results of intellectual activity expressed in such goods and the means of individualization with which such goods are marked cannot be applied: Decree of the Government of the Russian Federation No. 506 of 03/29/2022 // SPS "ConsultantPlus". – URL: https://www.consultant.ru/document/cons_doc_LAW_413173 / (accessed: 08/29/2022)
7. On approval of the list of goods (groups of goods) in respect of which the provisions of subparagraph 6 of Article 1359 and Article 1487 of the Civil Code of the Russian Federation do not apply, subject to the introduction of these goods (groups of goods) into circulation outside the territory of the Russian Federation by right holders (patent holders), as well as with their consent: Order of the Ministry of Industry and Trade of the Russian Federation dated 04/19/2022 N 1532 (ed. of 21.07.2022) (Registered with the Ministry of Justice of Russia 06.05.2022 N 68421) // SPS "ConsultantPlus". – URL: https://www.consultant.ru/document/cons_doc_LAW_416496 / (accessed: 08/20/2022)
8. Titov S. "False transit" and "resale on the way": how goods from Europe are transported to Russia. – Text: electronic / S. Titov // Forbes. – 2022. – June 22. - URL: https://www.forbes.ru/biznes/469665-loznyj-tranzit-i-pereprodaza-v-puti-kak-tovary-iz-evropy-vozat-v-rossiu?ysclid=l7cn3u334o156733765 (accessed: 08/20/2022)