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40COMPARATIVE STUDY OF LICENCING ACTIVITIES IN THE FIELD OF NUCLEAR ENERGY USE IN THE RF AND THE USA
DOI: http://dx.doi.org/10.14420/en.2013.5.1C
Marina Vasilyevna Markheym, Doctor of Legal Sciences, Professor, Head of Constitutional and Municipal Law Department of Juridical Institute of National Research University «BelGU», e-mail: markheim@bsu.edu.ru.
Pavel Aleksandrovich Derevyanko, Candidate of Legal Sciences, Teaching Assistant ol Constitutional and Municipal Law Department of Juridical Institute of National Research University «BelGU», e-mail: p.a.derevyanko@ gmail.com.
Abstract. The article considers the CIS countries' approaches to securing
of paternity at the constitutional level as well as variants of determinations of law concerning paternity in some Western states.
Keywords: constitution, legal equality, paternity, motherhood, childhood, legal
equality of parents, CIS countries, masculinism.
Research on the constitutional regulation of paternity in various countries allows a classification to be made, revealing particular differences in certain states, and suggesting the direction for the development of the rules on paternity.
The variation in the contemporary approaches to regulating paternity relationships can be demonstrated in the most illustrative way using the example of the CIS countries.1 These countries were all related to the USSR Constitution practices, and started developing as independent states after the collapse of the USSR. By adopting its own constitution, each CIS country introduced the relevant rules according to its own principles, including the rules of international law. To a greater or lesser extent, this had an effect on the constitutional formality of the rules on paternity regarded in the context of the general principle of legal equality.
An analysis of the constitutions of eleven CIS countries has shown that paternity as a target for protection is mentioned in five of them (those of Azerbaijan, Belarus, Kazakhstan, Russia, and Ukraine). In these same states, equal gender rights and equal rights for spouses are also covered.
In the remaining six countries (Armenia, Kyrgyzstan, Moldova, Tajikistan,
1 Agreement on Establishment of the Commonwealth of Independent States (Minsk, 8 December 1991) // Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitelstv SNG «Sodruzhestvo» [Information Bulletin of the Council of Heads of States and the Council of Heads of Governments of CIS «Commonwealth»]. - 1992. - No. 1. - P. 6.
Turkmenistan and Uzbekistan) the word «paternity» does not appear in the constitution. Five of the constitutions confine themselves to the area of equal rights either for spouses (Armenia, Moldova) or for men and women (Tajikistan, Uzbekistan). Both these are covered in Turkmenistan’s constitution. In Kyrgyzstan these aspects are not mentioned at all.
We consider it interesting to take a more specific look at the approaches of the states in which paternity is entrenched in the constitution.
Clauses III and IV of article 34 of the Constitution of the Republic of Azerbaijan1 provide that «maternity, paternity and childhood are protected by the law...» [emphasis added] and that the «rights of wife and husband are equal. Care and education of children constitute both a right and a responsibility of the parents».
According to article 32 clause 1 of the Constitution of the Republic of Belarus,2 «marriage, the family, motherhood, fatherhood and childhood shall be under the protection of the state» [emphasis added], and «a husband and a wife shall be equal in family relations». Article 32 clause 2 states the existence of rights for parents, but there is no direct reference to these rights being equal. However, we believe that the said rule, insofar as it pertains to the equal rights of spouses, can be interpreted to extend to equal rights of parents, especially since these provisions in this statute are contained in the same article. At the same time, we consider the wording about spousal equality to be technically loose, as parents are not necessarily spouses, even though their rights with respect to their child should still be equal. The same can be observed concerning the wording «equality in family relations». Family relations are not always present between the parents of a child. However, this circumstance does not affect the equality of the parents’ rights with respect to their children.
It is important to emphasize that the Constitution of Belarus is the only one to entrench the rule that «the House of Representatives shall consider draft laws, including the ones... regarding marriage, the family, childhood, maternity, paternity.» [emphasis added] (art. 97).
It is provided in article 27 clause 1 of the Constitution of the Republic of Kazakhstan3 that marriage and family, motherhood, fatherhood and childhood shall be under the protection of the state, while it is established in article 27 clause 2 that care of children and their upbringing shall be a natural right and responsibility of parents.
In accordance with article 7 clause 2 of the Constitution of Russia4, «... state support shall be provided to family, maternity, fatherhood and childhood.» [emphasis added]. The incorporation of this provision into the chapter «The
1 Constitution of the Republic of Azerbaijan of 12 November 1995 (as amended) // Informatsionno-pra-vovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»]. URL: http://base.spinform.ru/show_doc.fwx?rgn=2618.
2 Constitution of the Republic of Belarus of 24 November 1996 (as amended) // Informatsionno-pra-vovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»]. URL: http://www.base.spinform.ru/show_doc.fwx?rgn=19903.
3 Constitution of the Republic of Kazakhstan of 30 August 1995 (as amended) // Informatsionno-pra-vovaya sistema Zakonodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»]. URL: http://base.spinform.ru/show_doc.fwx?rgn=1162.
4 Constitution of the Russian Federation of 12 December 1993 // Rossiyskaya Gazeta. - 2009. - 21 January.
Fundamentals of the Constitutional System» constitutes a supplementary guarantee for fatherhood in Russia.
It is contemplated under article 51 paragraph 3 of the Constitution of Ukraine1 that family, childhood, motherhood and fatherhood are under the protection of the state, while paragraphs 1 and 2 state the equal rights and obligations of spouses in the marriage and family as well as parents' obligation to sustain their children. We suggest that the said provisions should be interpreted by analogy with what is suggested above with respect to Belarus.
To summarize, it should be noted that in all the constitutions studied, paternity or fatherhood is cited in logical connection with maternity or motherhood and childhood. Marriage and family, as also mentioned in this context, constitute ideal, but not necessary, conditions, as a man can still be a father without having any family or marital relations with the mother of his child.
In four out of the five CIS constitutions in which paternity is mentioned, paternity is guaranteed by the state, and in one of these (Azerbaijan) it is guaranteed by the law. The first variant is considered to be more desirable because of its wider extent, the law being merely one of the instruments available to the state.
Various aspects of paternity are emerging and changing over time, due to the growing number of divorces, which aggravates the problem for parents exercising rights with respect to their children.
In many Western states, a «masculinism» trend has emerged, which we define as a man-friendly concept intended for the study of social problems, or a belief that social gender equality calls for the elimination of prejudice and discrimination against men as well as against women, a gender stance that is complementary to, not opposite to, feminism.2
Within the frames of masculinism, the focus is upon paternal rights with respect to children, especially after a divorce. The representatives of this movement insist that, following a divorce, children are still in need of both natural parents and, therefore, that divorced fathers should not only have rights but should also have the opportunity to exercise their rights in practical terms.3
Foreign laws regulating fathers' rights upon divorce are based upon the general principle of the shared custody of children by both the mother and the father.
In 1975 in Finland, the Paternity Act was adopted. Under this law, shared custody survives a divorce, until a decision or statement to the contrary. The law relies upon the principle of the child retaining a relationship with both parents, whether or not they are married or living together. It is necessary to have especially good reasons to deprive a parent of his or her parental rights. Even cases of child abuse or a parent failing to perform his or her guardian's obligations may still not
1 Constitution of Ukraine of 28 June 1996 (as amended) // Informatsionno-pravovaya sistema Za-konodatelstvo stran SNG [Information and legal system «Laws of CIS Countries»]. URL: http://base. spinform.ru/show_doc.fwx?rgn=8689.
2 Muzhskoy almanakh [Men Almanac]. URL: http://www.menalmanah.narod.ru.
3 Nikolayeva Ya. G. Ottsovstvo posle razvoda: obzor issledovaniy zarubezhnykh uchenykh [Paternity upon divorce: review of foreign scientific research] // Aktualnyye problem semey v Rossii [Pressing challenges of families in Russia] / under the editorship of T.A. Gurko. - Moscow: Institut sotsiologii RAN [Institute for sociology of the Russian Academy of Sciences], 2006.
be sufficient grounds.
The principal laws of Sweden governing parental rights and obligations, particularly after divorce, include the Family Law (1949). Under this law, if the parents are married, the child from birth is in the custody of both his or her parents; if they are not married, his or her mother has sole custody. The child remains in the shared custody upon divorce, unless the shared custody is annulled by the court at the request of one of the parents, on the initiative of the court or upon request by the social security commission. The court may entrust custody of the child to one of the parents if this is in the child's interests. When considering the best option, the court must put special emphasis on the child's needs, and take into account the need to retain a close and warm relationship with both parents. If the other parent is also unable to bring up the child, the court shall assign the custody to one or two guardians specially appointed by the court.1
It is important to make it clear that Swedish family laws suggest a high level of involvement for both parents in the process of bringing up their children after a divorce. Shared custody is of such great importance that recent amendments to the laws, made in 1998, enable the court to award shared custody against the will of one of the parents. Thus, a man not residing with his family because, for instance, he has abused his ex-wife or partner, may have contact with the children in order to create a positive image of a father and to obtain social recognition.2
In the UK, the Children Act of 1989 contains a description of the forms of care for children and the obligation of the parents or other persons to bring up the child. The responsibility to take care of the child, to bring him or her up morally, physically and psychologically, is given to the mother and the father equally. After a termination of relations (separation) or divorce, the parents continue to bear their obligations.3
In the USA, two forms for the shared custody of children are practised upon divorce, one legal and one actual. The first means that the children reside predominantly with one of their parents, but that the mother and the father take joint decisions concerning their education and upbringing. The second presumes that the children, whenever possible, live with each of their parents in turn (for example, with their mother during term-time and with their father during vacations). In the case of «separate custody», the children are divided between the parents: mothers usually take the girls, while fathers tend to take the boys. However, according to research, separate custody often has an adverse effect on brothers and sisters and should be used only as a last resort.4
In the Russian Federation, according to article 61, clause 1 of the Family Code, fathers and mothers exercise equal rights and bear equal responsibilities with respect to their children (parental rights). All matters related to the upbringing and education of the children are to be decided by the parents by mutual
1 Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm]. URL: http://www.prpc.ru/library.
2 Eriksson M. Custody, residence and contact // Children who see daddy hit / B. Metell (Ed.). - Stockholm: Forslagshuset Gothia, 2001.
3 Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm]. URL: http://www.prpc.ru/library.
4 Gurko T A. Roditelstvo: sotsiologocheskiye aspekty. [Parenthood: sociological aspects] - Moscow: Tsentr obshchechelovecheskikh tsennostey [Universal Human Values Center], 2003. - P. 58.
agreement, having regard to the children's best interests and to the children's opinions. If there is a dispute, the parents (or one of them) have the right to seek a resolution in court or from the custody and guardianship authorities (article 65, clause 2).
If the parents separate, the children's residence is defined by agreement between the parents. Where no agreement is in place, the argument between the mother and the father is resolved by the court for the benefit of and with respect to the opinion of the children. In this case, the court considers the affection of the child for each parent, his or her brothers and sisters, his or her age, the moral and other qualities of the parents, the relationship between each parent and the child, and the opportunity to create conditions for the upbringing and development of the child (article 65, clause 3).
However, the practice following divorce in Russia indicates a lack of compliance with these family law provisions, with respect to both mothers and fathers. We accept the position of T .A. Gurko that, in Russia, the problems of the relationship between fathers and children after divorce, as well as the legal regulation of such relationships, «are still pending and give space for further research».1 The need to match the domestic law with the practice of fathers implementing their rights towards their children accentuates the call for the development of the doctrine of this complex problem.
References
1 Biblioteka Permskogo pravozashchitnogo tsentra [Library of the Human Rights Center of Perm]. URL: http://www.prpc.ru/library.
2 Gurko T.A. Roditelstvo: sotsiologocheskiye aspekty. [Parenthood: sociologic aspects] - Moscow: Tsentr obshchechelovecheskikh tsennostey [Universal Human Values Center], 2003.
3 Constitution of the Republic of Azerbaijan of 12 November 1995 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc. fwx?rgn=2618.
4 Constitution of the Republic of Belarus of 24 November 1996 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://www.base.spinform.ru/show_ doc.fwx?rgn=19903.
5 Constitution of the Republic of Kazakhstan of 30 August 1995 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc. fwx?rgn=1162.
6 Constitution of the Russian Federation of 12 December 1993 // Rossiyskaya Gazeta. - 2009. - 21 January.
7 Constitution of Ukraine of 28 June 1996 // Informatsionno-pravovaya sistema Zakonodatelstvo stran SNG [Information and legal system Laws of CIS Countries]. URL: http://base.spinform.ru/show_doc.fwx?rgn=8689.
8 Muzhskoy almanakh [Men Almanac]. URL: http://www.menalmanah. narod.ru.
1 Gurko T.A. Op. cit. - P. 59.
9 Nikolayeva Ya.G. Ottsovstvo posle razvoda: obzor issledovaniy zarubezhnykh uchenykh [Paternity upon divorce: review of foreign scientific research] // Aktualnyye problem semey v Rossii [Pressing challenges of families in Russia] / under the editorship of T.A. Gurko. - Moscow: Institut sotsiologii RAN [Institute for sociology of the Russian Academy of Sciences], 2006.
10 Agreement on Establishment of the Commonwealth of Independent States (Minsk, 8 December 1991) // Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitelstv SNG «Sodruzhestvo» [Information Bulletin of the Council of Heads of States and the Council of Head of Governments of CIS «Commonwealth»]. - 1992. - No. 1.
11 Eriksson M. Custody, residence and contact // Children who see daddy hit / B. Metell (Ed.). - Stockholm: Forslagshuset Gothia, 2001.
