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”.
The article is accessing, whether and in how much the principle of non-intervention into matters within the domestic jurisdiction, as one of the basic principles of International Law, is applicable and able to effectively deter so-called «low-intensity cyberoperations», i.e. computer network attacks which do not fall under the notion of «use of force». For this purpose the author tries to clarify what are the content and the scope of application of this principle in International Law and comes to conclusions, that relevant acts of «soft law», by leaving the concrete shape of this principle foggy, reflect a comfortable compromise reached between states; and the impact of pronouncements made by the International Court of Justice in Nicaragua v. USA, which is still regarded as a key judgment in this sphere, is rather overestimated. As a result, it is concluded that the principle of non-intervention in its international legal dimension, though being able to restrain flagrant and direct interference of other states, because of its limited scope, combined with a high level of«legal uncertainty» surrounding its basic elements, is not able to play a role of an effective instrument combatting cyber operations. Moreover, a mixture of legal and political approaches, accompanying application of this principle, becomes an obstacle for crystallization of new international customs, which might regulate specifics of cyber attacks.
The article is dedicated to transformation of national legal systems influenced by decisions of international courts. The author considers legal, institutional and organizational mechanisms applied by international courts in their interaction with national legal systems as well as difficulties international courts are facing while transforming national legal systems (using the example of European court of human rights).
In October 2020, the Constitutional Tribunal of Poland delivered a landmark judgment where it held the legislative provision allowing the termination of pregnancy on the grounds of severe and irreversible impairment or incurable life-threatening disease of the fetus unconstitutional. This article presents a study of a fundamental legal conflict that is central to this judgment. It examines the decision of the Tribunal not only in the light of Polish legislation and jurisprudence, but also in a broader context of a biomedical discussion about the beginning of life, a formalistic definition of a legal personality, the idea of equal protection of life regardless of the state health, and the need to protect the rights of a woman that may at times come into conflict with the recognized rights of a fetus. In fact, the arguments that we find in the judgment of the body of constitutional review of a particular state trigger a discussion of the problematic issues relevant for any society. The article also includes an overview of the caselaw of the European Court of Human Rights that, on the one hand, highlights the range of problems that should be addressed by the national regulation of the grounds for abortion, and on the other hand, demonstrates the existing gaps in the fundamental bioethical and legal responses to these dilemmas. The authors suggest a scheme to address these issues that requires a reference to the principle of proportionality and a consideration of positive measures reducing the attractiveness of pregnancy termination that should become an alternative to prohibition of abortions. The study concludes with the finding that the Polish approach towards the absolute constitutional conflict has serious flaws of inconsistency and unwillingness to see the complexity of the problem. Therefore, it is plausible to suggest that the dilemma is far from being resolved. The article employs the objects and methods typical for legal research, but also incorporates the findings of relevant medical, biological and demographic studies that appear to be vital for a full-fledged understanding of this interdisciplinary topic.
The article addresses some key issues of applying interim measures in international commercial arbitration. The institution of interim measures as provisional and conservatory legal arrangements is nowadays the subject of many discussions among law students, legal scholars and lawyers who pay special attention to the employment of this procedural instrument in the process of international commercial arbitration for protecting the rights of the parties in the dispute resolution process. The author examines the very meaning of interim measures and the terminology used in referring to this concept as well as issues of interpretation of this and related notions. One of the issues discussed in this article is the feasibility of compliance and enforcement of judgments on the interim measures awarded by arbitrators in the course of international commercial arbitration. In Russia, such a mechanism was not established by the law, in contrary, it was even rejected by the judicial practice. So, there is only one way when such measures could be taken, and it is when interim measures which were indicated by appropriate arbitration judgments are mutually agreed and voluntarily accepted by the parties in arbitration dispute. At the same time, the mandatory implementation of these measures would be possible only if disputing parties appeal to a state court with a request to introduce relevant interim measures. The author also examines characteristic features of effecting interim measures indicated pursuant to arbitration rules of some of the leading international arbitration institutions, taking into account such a special case of referring to an emergency arbitrator.
The primary task of this article is identifying and discussing some of the le-gal problems which arise from autonomous restrictive measures under EU law, particularly in the context of measures adopted against third countries. The article explores the differences between various sanction regimes as well as the legal basis and procedures in betaking particular types of restric-tive measures. The main part of the article is centered on the jurisdiction of the European Court of Justice with regards to the control of legality of re-strictive measures imposed on individuals. It reviews the changes that oc-curred in this sphere after the Lisbon Treaty and analyses the case-law of the Court regarding the protection of fundamental rights – the rights for de-fense, property rights and proportionality of sanctions. Finally, the article explores the issues that are more characteristic to the third counties’ sanction regimes. First, the judicial control of whether the listing of specific persons is justified in regard to the listing criteria established by the Council, particu-larly within the notion of “rulers and individuals associated with them”. And, second, the most recent trend demonstrated by the Court is controlling the determine these criteria in accord with their compatibility with the princi-ples of legal certainty and with respect to fundamental human rights. This new trend seems to be particularly important in the context of sanctions against Russia resulted from Ukrainian crisis.
This article continues a series of modern theoretical developments in the field of legal problems of integration of states. At the same time the study proposes to address the current problems of integration from a new side and to consider in detail the contribution of international courts to the strengthening of integration processes. For these purposes the authors generalize and systematize the conceptual apparatus of "integration law", sometimes contradictory and controversial. Thus the article emphasizes that not every form of international cooperation of states can be qualified as integration. A distinctive feature of an integration association is functioning of a unique court, which competence includes, first of all, interpretation, including prejudicial one of the agreements and treaties of these associations, as well as the resolution of disputes between states and bodies of these associations.
The influence of the Court of Justice of the European Union on integration processes is studied in detail. The article highlights the trends of judicial practice and the most significant legal positions of this body of international justice. Bypassing the too ambiguous question of whether this court is a "Constitutional court of Europe" the authors conclude that European law (both in general and its principles and individual areas of regulation) was formed under the influence of the case-law of the Court of Justice of the European Union.
The article also emphasizes the significant potential of the Court of the Eurasian Economic Union in strengthening the "Community law" and promoting its uniform application. The authors of the study do not aim to compare this court with the justice bodies of other integration associations and proceed from the fact that the Court of the Eurasian Economic Union has its own original way of development.
Finally this article provides the reader with an overview of an integration justice system in Latin America and Africa. Unfortunately, these international courts often are not in the focus of scientific interest of Russian scientists, while integration processes are developing very fast on these continents. In a similar way authors attempted to analyze in the development of the case-law of Latin American and African international courts, the main legal principles and legal ideas guiding these bodies of international justice.
In conclusion findings are made about efficiency of courts of integration associations in general.
The article deals with a block of problems related to the process of proving before the international criminal justice bodies, particularly the International Criminal Court, as well as the two international criminal tribunals ad hoc: for the former Yugoslavia and for Rwanda. It underlines the in℁uence that the Anglo-Saxon institutions, including the evidence law, stressed on the con- stituent documents and the practical activities of these jurisdictional bodies. Appealing to the past of the international criminal justice, mainly the expe- rience of the Nuremberg trial 1945–1946, the author notes the signi洀cant changes that have occurred over the past decades in the 洀eld of characteris- tics and the list of evidence with which international courts operate. In par- ticular, the increasing use of visual evidence, as well as digital evidence, ob- tained through the Internet, has become more and more widespread. Spe- cial attention is paid to the oral testimony of the witnesses and the defen- dants who remain conditio sine qua non carried out in strict procedural forms of legal activity aimed at establishing the factual circumstances. Introspec- tion is done in speci洀c court proceedings that took place during the period of the ICTY’s existence, above all, the trial of the former Serbian President S. Milosevic. An attempt is made to highlight some common problems char- acteristic of all types of evidence in the international criminal procedure. Among the diഋculties which appear in connection with the evidence law in the international criminal justice one can name the signi洀cant time gap be- tween committed crimes and the moment of presenting evidence before an international court. Indeed, over the past decades, not only the witnesses died or grew old, the material evidence and many documents were lost, but also the events themselves have been transformed so radically by the daily information input that it is already extremely diഋcult for the people to sepa- rate the personal memories of what they saw and the kind of social narrative that is aggressively imposed to the post-con℁ict societies through the me- dia. Other diഋculties are caused by the non-professional work of the trans- lators or simply by human misunderstanding on a language basis. For ex- ample, in the ICTY the vast majority of the victims and the witnesses did not speak the working languages of the Tribunal. It is stressed that the priority of oral evidence increases the risk of testimonial inaccuracies which are caused by human perception. That is why the psychologists identi洀ed a pattern ac- cording to which the risk of mistaking the testimony of witnesses (victims) of violent acts is higher than that of witnesses (victims) of non-violent.
The enforcement of the European Court of Human Rights judgments as a part of an issue of compliance with international courts’ decisions is of major theoretical and practical importance for the Russian legal system. More generally, the enforcement of the ECtHR’s judgments reflects state compliance with international law. More specifically, such enforcement refers to the degree of real human rights protection in a particular State. One of the main issues regarding the enforcement of the ECtHR’s judgments is the question of the formal moment since which a judgment is considered to be enforced. Currently the process of enforcement formally ends when the Committee of Ministers of the Council of Europe adopts a final resolution on enforcement of the Court’s judgment. However, from a technical point of view, the resolution is adopted only when the State has fully taken all the measures prescribed or implied by the European Court of Human Rights. At the same time, for the purposes of such resolution even significant measures adopted by the State will not be taken into account if they had not led to the 100% result. This is particularly important for the so called leading cases in the ECtHR’s case-law, in which the Court reveals a structural or systemic problem in the legal system of a particular State. The enforcement of judgments in these cases may require not only reforming the legislation and adjusting the judicial case-law but also – very frequently – significant funding and correcting of public opinion on sensitive matters. On the example of the Kim v. Russia group of cases the authors show the set of measures taken by the State in order to enforce the judgments on the special control of CMCE. Despite a significant number of measures taken, the enforcement process has not been closed yet. At the same time, in some other cases (on the prisoner voting rights) examined by the Committee of Ministers in December 2018 and September 2019, even partial implementation resulted in CMCE final resolutions. The authors conclude that a more flexible approach to the State compliance with the Convention would be advisable. Furthermore, the introduction of a new status of execution such as “partial enforcement” or “progress in enforcement” would help to follow more carefully the degree of real implementation of the ECtHR’s judgments.
The article analyzes the theoretical and practical problems that arise during the construction of the Colombian model of transitional justice. The latter is viewed as a combination of judicial and quasi- judicial means, with the help of which it becomes possible to achieve a peaceful settlement after the end of the civil war of 1964–2016. Particular attention is paid to the socio-political context and mass sentiments prevailing in Colombian society regarding the legitimacy of transferring the Anglo-Ameri- can construction of Transitional Justice to Latin America. The so-called “Integrated System of Truth, Justice, Reparation and Non-Repetition”, which is a consolidated version of the four main elements of transitional justice: criminal prosecution, truth seeking, reparations to the innocent victims and “deal with the past”, is being studied in detail. In particular, the author dwells on the issue of amnesties for participants in an armed conጀict, the activities of the “truth commission” and compensation pay- ments to victims of mass violence. In addition, the article examines the activities of the Colombian Special Jurisdiction for Peace, the relevant statistical data are provided. The “Santrich case” is men- tioned as a marker of negative trends that continue to grow in the activities of a new jurisdiction. The conclusion is that the legal means of resolving the conጀict are secondary, albeit of absolute impor- tance, in comparison with political agreements, to which all participants of the process of national reconciliation sometimes are not ready organizationally and psychologically.
Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system. Using some remarkable recent cases from the supreme national and international tribunals’ practice author concludes that international tribunals are increasingly expanding their own competence to cover issues traditionally reserved for national authorities and/or lying exclusively in the diplomatic realm. The “evolutive” interpretation of provisions of international law adapted by some international tribunals (and other international organs) contradicts their literal meaning as originally intended by the states, is becoming a persistent trend. This entails a natural reaction of national legal systems represented by higher courts: on the one hand, they avoid direct confrontation through maintaining the classical paradigm of respect to international law, and, on the other hand, draw “border lines” designed to limit the jurisdiction of international courts and arbitration tribunals. The politicization of international arbitration is a question that should not be embarrassingly swept under the carpet or considered marginal. Otherwise, there is a risk that it would destroy the international dispute resolution system and, as a consequence, undermine the mechanisms of international law. At the same time, no peaceful resolution of the conflict of jurisdictions is possible without understanding the problem in the legal plane, without joint determination of which cases are justiciable in the international process, and which questions should be considered “political”. Author made the attempt to give a legal definition of the “political question” in the international procedure and formulate legal tests which could help international judges and arbitrators to define, whether they are ready to and whether they should consider the particular case, related to the “political question”, on the merits (and not to recognise it inadmissible on procedural grounds).
The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.
The article focuses on practice of the child's right to a family protection, and in particular of the application of “the best interests of the child” concept. The author analyses the international standards in the field on the example of the European Court of human rights case-law.
This article is based on the materials of a contribution made during an expert discussion that centered on the Order of the International Court of Justice from April 19, 2017, imposing provisional measures in the case of Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination (Ukraine v. Russia). The Order from April 19, 2017, is considered by the author in the general context of the scientific discussion of problems connected to the International Court of Justice’s applying provisional measures. Among those noted are the loss of this procedural instrument’s exclusive character, the complexity of establishing the accountability of the state for not implementing provisional measures and the unsatisfactory situation of cases with the execution of such orders.
The present article examines the jurisprudence of the International Tribunal for the Law of the Sea relating to disputes which involve both international environmental and international economic relations. In the analyzed cases International Tribunal for the Law of the Sea prescribed provisional measures to prevent transboundary harm for the marine environment, taking into account that risk of such harm is connected with economic activity.