Modern development of legal systems and their interaction raises new issues of both theoretical and practical nature. The participation of Russia in different integration units makes the Russian law enforcement bodies face new challenges, the attempts to offer solutions of which have been taken, in particular, by the Russian Constitutional Court. Again we face the issue on the hierarchy of constitutional and supranational norms, overcoming conflicts between them and interaction of national (first of all, constitutional) and supranational courts. In particular, in its decisions of 2015–2016 the Russian Constitutional Court took a step forward to a new legal methodology aimed at solving the conflicts between supranational acts (including those of the Eurasian Economic Union and the European Court of Human Rights) and constitutional approaches and provisions. This methodology is based on the counter-limits doctrine worked out earlier through the cooperation with the European Union and its Member States (including Germany and Italy). The article focuses on the analysis of theperspectives of this doctrine application and the degree of its sufficiency to solve potential conflicts between national and supranational norms. It is highlighted, among other conclusions, that the counter-limits doctrine, being rather a means of restraint and not of frequent use, serves rather as a tool to promote the dialogue of legal orders than to aggravate conflicts among them.
The article discusses the activities of Serbian courts and courts of the unrecognized “Republic of Kosovo” in connection with the international, particularly war crimes committed in the Autonomous Region in the late 1990s and early 2000s. The exclusively positive role played by the International Tribunal for the Former Yugoslavia in overcoming the impunity of the perpetrators of these atrocities is emphasized. The creation of appropriate judicial structures for the investigation of the core crimes within the framework of the Serbian and Kosovo judicial systems is assessed as a logical result of the “Completion Strategy” for the activities of the designated tribunal, approved by the UN Security Council. The “dualism” of the earlier unified judiciary of Serbia, which has been outlined, including in the field of overcoming the “gap of impunity,” is stated. As a result, a paradoxical situation is described when in relation with the crimes committed on the territory of Kosovo at the end of the XXcentury, both the official Serbian courts and the courts of the unrecognized Republic have got almost the same jurisdiction. It is concluded that the failures of the Serbian authorities in the investigation of crimes against Serbs on the territory of Kosovo are explained by the fact that they have no real opportunity to conduct investigative actions in this region. Serbian “parallel” judicial and police structures continue to operate in Kosovo either on paper or exclusively in civil and administrative proceedings on a very limited range of issues. In any way the article analyzes the practice of criminalizing international crimes, which is taking shape in both formerly hostile camps. Particular attention is paid to the special chamber for war crimes, established as part of the Belgrade District Court, which has the right to consider and resolve this category of cases. A detailed analysis is made of the trials conducted by that chamber, primarily in the cases of the “Jackals” and the Gnilyansk group, as well as the obstacles that arose. The plot of the sensational case of the “Bytyqi brothers”, which at one time attracted the attention of the world community, is summarized. A general description of the procedural infrastructure of transitional justice in Kosovo is given, the difficulties that stand in the way of interethnic reconciliation are briefly analyzed. Statistical indicators of the activity of the Kosovo judiciary are examined, these results are compared with similar indicators of the Serbian judiciary. So the authors come to some extend paradoxical conclusion that the national authorities of Serbia are more interested in prosecuting persons who have committed international crimes in Kosovo than the authorities of the Kosovo themselves.
This article examines a new phenomenon in international criminal justice, namely so-called hybrid or internationalized courts, in which foreign judges participate along with national judges. The nature of hybrid courts is under-lined as one of the elements of transitional justice that is supported by the United Nations in the interest of countries that are just gaining their statehood or are rebounding after civil wars. The example of specific hybrid judicial institutions reveals the question of the quantitative composition of such courts and countries that most often delegate their representatives to such structures. The advantages and disadvantages of such courts are analyzed and problems are identified that are related to the definition of the law to be applied. In particular, three options are possible: firstly, the procedural rules of hybrid courts are derived from the national system of the country in question; secondly, these rules are derived from the workings of an international tribunal; and thirdly, the rules are derived from legislation that is specially passed for the purpose of a they hybrid tribunal. Particular attention is paid to the difficulties of the psychological and socio-cultural nature that arise when foreign judges work in an alien professional environment. The problem of revising the decisions of hybrid courts is touched upon, and a conclusion is made about the extremely meager procedural resources available for this revision. The possibility of using a hybrid approach in constitutional justice is considered, using Bosnia and Herzegovina and Ukraine as examples. Emphasis is placed on some of the problems that arise in the selection of judges in designated international tribunals.
Hazel Fox’s and Phillipa Webb’s new book provides a useful introduction to the dynamic development of the institute of state immunity over the previous several decades: from the erosion of the concept of an absolute immunity of states to the transformation and adaptation of this legal institution to new realities under pressure of human right’s defenses. This fundamental work serves as an encyclopedia on the legal regulation of state immunity in both international law and in national legal systems (namely in Great Britain and the United States). The reader will find not only a detailed description of theoretic questions, a systemic description of the evolution of the legal regulation of state immunity, and many examples of judicial and arbitration practices, but also proposals for reforming this institute. The authors show the ongoing transformation of the regime of state immunity using examples from the judicial practices of states. However, the author of this book review notes that modern state immunity cases can develop in several directions. Some states will accept a narrow concept of immunity, while others will be faithful to a wide concept on a basis of mutuality, making exceptions for states in the first group.
The commentary analyses the proceedings before the International Tribunal for the Law of the Sea in the case of the Dutch ship "Arctic Sunrise", which was arrested in the exclusive economic zone of the Russian Federation, and the Tribunal's decision on provisional measures to release the vessel and its crew. For the first time in its history, the Russian Federation boycotted interstate proceedings in the international court. The author addresses the possible consequences of this decision.
This paper examines the judgment of the European Court of Human Rights on the Magyar Yeti v. Hungary case of December 4, 2018 (application no. 11257/16) concerning the use of hyperlinks in the media. The “Magyar Yeti” complaint was based on a litigation over media coverage of a national conflict and the positions of its parties. The leader of the gypsy community in the village of Konyar in Hungary accused the Jobbik party of organizing attacks by football fans (expressed in aggressive and obscene shouts) at a school in the village. An audio recording of these allegations was published via a hyperlink by some Hungarian media outlets, including the applicant company. The “Jobbik” party filed a lawsuit in court to protect its reputation. The Hungarian court took the side of the Jobbik party and ruled that the defendant has to publish a retraction. This decision was supported by the national courts of other instances. However, the ECtHR found that “Magyar Yeti” acted in good faith, not expressing its own attitude to the contents of the audio recording in the hyperlink. Thus, the national courts violated the balance between the right to protection of reputation and the freedom of expression and, consequently, violated article 10 of the European Convention on Human Rights. Thus, within the framework of this dispute the ECtHR started formulating a completely new approach to the regulation of activity of journalists in the digital age through legal assessment of the digital tools, which journalists often use in their professional activities. In particular, the ECtHR defined hyperlinks as a new tool in journalism, which differs from traditional ways of presenting information. Finally, this judgment focused on the issue of using hypertext (hyperlinks) by journalists in their publications; the ethical side of the professional activities of journalists on the Internet; the responsibility of journalists for the use of the Internet as a tool of communication and the role of the Internet for the realization of citizens’ information rights. Based on the examination of the judgment of the ECtHR, the author looks into the issue of legal guarantees to journalists in the digital age.
The problem of relationship between obligations of states on implementation of the UN Security Council resolutions imposing individual sanctions and fulfillment of duties arising from international treaties on human rights is disclosed in this article through a prism of key decisions taken by international judicial and quasi-judicial bodies: decisions of the judicial organs of the European Union in the Kadi cases, views of the UN Human Rights Committee in Sayadi and judgments of the ECtHR in the Nada and Al-Dulimi cases. In all these decisions the bodies tried to escape application of Article 103 of the UN Charter, although there is a number of ways to allow concluding that the Security Council is bound not only by jus cogens norms, but also by norms related to fundamental human rights. Moreover, in the sphere of protection of this category of rights, the passing of responsibility between the UN as an international organization and its member states is hardly to be recognized as lawful. As to the test of “equivalent protection”, developed by the ECtHR, it could have served as an asset helping to combine responsibilities of both the organization and its member states, but it is aimed to solve more institutional, than substantive, problems. Finally, despite polyphony of the approaches applied by different bodies in the abovementioned decisions, it is possible to deduce a general pattern, which lies in recognition of a special nature of basic human rights. Basing on these grounds, the author comes to conclusion, that pluralistic picture of approaches taken by international judicial and quasi-judicial bodies does not rule out the systemic nature of contemporary international law, in which formation human rights norms play a pivotal role.
This article deals with the issue of limiting a panel’s jurisdiction by means of a preliminary ruling within the World Trade Organization’s dispute settlement system. The analysis is based on appellate court jurisprudence concerning the issuance of preliminary rulings. The authors of this article come to the conclusion that, despite the absence of specific provisions in the Dispute Settlement Understanding (DSU) pertaining to preliminary rulings, panels have powers to issue preliminary rulings in relation to the scope of the panel’s jurisdiction. Preliminary rulings can be seen as a procedural means for the defendant to defend his interests. To use it properly, the defendant should show that the panel request of the complainant does not meet the criteria of Article 6.2. of the DSU, according to which a panel request must identify the specific measures at issue and provide a brief summary of the legal basis of the complainant. The authors conclude that the defendant has the right to request that the panel exclude the complainant’s claims as not satisfying such criteria from the scope of the panel’s jurisdiction. Therefore, the defendant may reach a panel’s rejection of some or all claims of the complaint even before addressing the merits of the case. This comprises the respondent’s defensive concept and may be executed through a preliminary ruling.
The paper contains an analysis of (1) the “scope of jurisdiction of the panel”, (2) the criteria that the complainant’s panel request should satisfy, and (3) possible arguments that the respondent may submit to the panel explaining why the request of the complainant does not satisfy these criteria and that therefore the panel’s jurisdiction should be limited by issuing a preliminary ruling.
The article deals with the problem of reference of the parties of the dispute considered by the Dispute Settlement Body (DSB) to the Draft articles on Responsibility of States for Internationally Wrongful Acts (ILC Articles) adopted by the International Law Commission in 2001 (ILC) in the process of dispute resolution. Such issues as the legal status of ILC Articles, the definition of international responsibility and internationally wrongful act as the ground of international responsibility are examined.
The authors make a conclusion that customary rules regarding responsibility of the states for internationally wrongful acts are codified in ILC Articles. At the same time, ILC Articles contain several norms which constitute a progressive development and only in future can become the legally binding provision.
Another conclusion made by the authors is that international responsibility and coercive measures, such as sanctions and countermeasures are different notions related to different legal institutions, although closely related to each other. The international responsibility can be enforced without application of such coercive measures. International responsibility relations are based on the existence of internationally wrongful act, despite of such legal consequences as application (or non-application) of coercive measures.
Authors highlight that there is wide practice of application of ILC Articles with the purpose of interpretation of the provisions of the WTO Agreements.
The co-relation of the norms of the WTO Agreements and ILC Articles is examined in more details by the example of Articles 20 and 45 of ILC Articles. The recent case Peru – Additional Import Duty on Imports of Certain Agricultural Products, where Guatemala is the applicant is analyzed in the present article. The authors make a conclusion that article 20 of ILC Articles shall not be viewed as a provision used with the purpose of interpretation of article 4.2 of the Agreement on Agriculture, rather as a remedy applied under general international law.
The subject of this review is the translation of the Serbian textbook on international criminal law. The authors of the review found that the textbook in question can be regarded as a low-quality text for the following reasons: the superficial content of the book along with extremely controversial statements, the presence of numerous juridical and factual errors, and the lack of reliable references to sources. Reviewers also noted the overly biased (for a textbook or a scholarly work) position of the author of the textbook on the events of the 90s in the former Yugoslavia and on the activities of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court. And finally, the authors of the review negatively assess the translation of the book into Russian. In general, reviewers do not recommend using this textbook.
In the less than three years of its existence, the Eurasian Economic Union Court has been surrounded by numerous myths due to the significant changes in the Court’s statute in comparison to the EurAsEC Court. This in turn has led many researchers to question whether the Court actually possesses the necessary instruments to fulfill its mission and ensure the uniform interpretation and application of EAEU law. This issue is all the more important, because in the European Union the Court of Justice has played one of the leading roles in the development of European integration. Taking into account the numerous restrictions on the competence of the EAEU Court in the Court’s Statute, one might be tempted to answer in the negative. However, as the case law of the EAEU Court shows, not all the alleged restrictions prove to be real obstacles. In the present article the authors seek, on the one hand, to dispel some of the myths surrounding the competence of the EAEU Court and, on the other hand, to provide an in-depth analysis of the real problems and restrictions the Court is facing and to suggest possible ways of overcoming them.
On September 13, 2018, the European Court of Human Rights rendered a judgment in the case of Big Brother Watch and Others v. United Kingdom, in which it examined whether the legal acts of the UK on the mass interception of communications and its meta-data, as well as the intelligence sharing regime with foreign intelligence agencies, corresponds to the Convention on the Protection of Human Rights and Fundamental Freedoms. Having used an approach under which “while States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary to protect national security, the discretion afforded to them in operating an interception regime must necessarily be narrower,” the Court thereby legalized the use of bulk interception of communications and meta-data. Assessing what content stands behind the acceptance of mass surveillance as not violating the Convention per se, this article demonstrates that the court, by acting both explicitly and implicitly, has exempted a number of key issues of these measures from the test on “legality”, “necessity in democratic society”, and “proportionality”, and has also significantly lowered the threshold of requirements in respect to other components of the bulk surveillance regime. This is an obvious reversal from a sufficiently progressive approach to the protection of the right for respect of private life and personal data against the background of the ever-growing appetite of states for mass collection of data, which started to crystallize few years ago in the jurisprudence of the ECHR and the Court of Justice of the EU. The article concludes with reflections on the political grounds that could have influenced the ECtHR’s application of the balancing method and predetermined its position on what is “necessary in a democratic society”.