Resolution of ICJ disputes concerning international economic and international environmental relations is analyzed in this paper. The process of “ecologization” of international economic relations is going on today. In the analyzed cases the Court has worked out a certain standard of restriction of economic activity to prevent environmental harm.
The article offers an analysis of the issues of taking evidence in the transnational civil procedure. The research methodology is based on the use of comparative legal analysis. The normative base of the research includes international legal acts, Russian and foreign national legislation, case-law of foreign courts. The authors emphasize that main difficulties in the resolution of transnational disputes result from the use of different pleading models, different evaluation of evidence aspects (as substantive or procedural categories), and the absence of a universally recognized and mandatory tool of taking evidence in a foreign jurisdiction. Besides, there is nearly always a need of autonomous qualification of each evidence law institute. The research comes to the conclusion that the main issue of judicial evidence in the context of international civil procedure is whether the court may apply foreign law if the substance of the dispute or the form of the transaction are subject to foreign law. Currently the legislation and case-law of common law countries provide for provisions on the possibility to use foreign evidence law and conflict rules determining the law applicable to evidence. In civil law systems there is a common rule that procedural matters are resolved in accordance with lex fori, with a developed system of procedural conflict rules. When there is a need to obtain evidence in a foreign jurisdiction, there are two modern ways to do it: 1) to use the tools of legal assistance provided for by international agreements (whether global or regional); or 2) taking evidence directly from a foreign participant, e.g., without sending an official request in a court of a State where the evidence and/or information are. The first way is the optimal one but its effectiveness is diminished because of a limited number of relevant international treaties’ members. Probably the best methodology in the current situation would be the use of lex mercatoria tools, in particular, the ALI/UNIDROIT Principles of Transnational Civil Procedure.
On April 10, 2019, the European Court of Human Rights delivered its first advisory opinion under Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The opinion was adopted upon the request of the French Court of Cassation and regarded as yet another attempt to solve the problem of ensuring that a right to respect for private life of children born through transnational surrogacy agreements is secured. The European Court of Human Rights stated that Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship between a child and the intended mother, even when they do not share any biological connection. Given the requirements of the child’s best interests and the reduced margin of appreciation of the state, the French government is expected to provide a prompt and effective procedure enabling that relationship to be recognised. The article analyzes both substantial and formal aspects of the advisory opinion. Ultimately, the author aims at defining the role that this ruling might play in developing a civilized approach towards international surrogacy. Additionally, we attempt to evaluate the potential of the new format of advisory opinions for strengthening the horizontal cooperation between the ECHR and national courts and overall advancement of fundamental rights and freedoms in Europe. The article comprises two main parts: one is devoted to the systemic analysis of the arguments substantiating the Court’s findings, the other presents a reflection upon the first instance of applying the new procedure in light of the Protocol’s aims and aspirations. In the end, the author suggests that for those countries that ban surrogacy, the advisory opinion signals that such prohibition is becoming meaningless taking into consideration the evolving interpretation of Article 8 of the Convention. Specifically, the doctrine of a child’s best interests does not allow the states to disregard the legal effects of surrogacy agreements implemented abroad. The nonbinding nature of this rigid opinion incentivizes member states to engage in a fruitful dialogue with the ECHR and eventually reach a consensus on problematic issues of surrogacy. The procedure may also reinforce implementation of the Convention in accordance with the principle of subsidiarity.
This article examines the phenomenon of “dealing with the past” in the activities of international criminal tribunals, particularly the International Criminal Tribunal for the Former Yugoslavia. The “politics of memory” is analyzed as one of the elements of transitional justice, which makes it possible to make a transition to peace. There are two main strategies that the state can follow when attempting to deal with its own past: either a policy of silence, or a policy under the motto “never again!” The ambiguity of the truth that is extracted during the course of forensic investigation is emphasized. Particular attention is paid to the psychological and socio-cultural difficulties that arise in a person or an ethnic group when interacting with a different treatment of events than that adopted in their environment. In this regard, the specificity of “memory wars” is revealed as a defensive reaction to another version of historical events. Specific examples illustrate the attitude of the tribunal to the events of the Yugoslav war of 1991 to 1995. The ambiguous role of truth commissions has been identified, which in practice may prove less effective than full-fledged criminal tribunals. The possibilities of using the “memory policy” in post-conflict areas, in particular in the example of Bosnia and Herzegovina and Ukraine, are considered. The article concludes with a question: Given that it is known that the version of past events that is supported in a court’s opinion is referred to as forensic truth, is it possible that a key purpose of the existence of international law is to achieve maximum conversion of forensic truth and actual truth?
The article is devoted to the research of a new regulation in Private International Law and International Civil Procedure in Argentina which was introduced in the process of recodification of private law. In 2014 a new Civil and Commercial Code of Argentina was adopted in which the Title “Provisions on Private International Law” (articles 2594-2671) establishes choice-of-law (conflict) rules and jurisdictional rules. For the purpose of codification of Private International Law and International Civil Procedure the Argentinean legislator chose intra-branch complex form of codification which is traditional for that country. In the article much attention is paid to the analysis of procedural aspects of legislation adopted. The new regulation is internationally oriented and broadens of judicial discretion in order to take into account the concrete circumstances of a case, the majority of International Civil Procedure rules is directed for the protection of access to the efficient justice. Unfortunately, the Argentinean legislator refused to apply the autonomous complex form of codification of Private International Law and International Civil Procedure, so the new regulation became incomplete, particularly the rules of recognition and enforcement of foreign judgments were not included. Despite the range of shortcomings, the new Private International Law and International Civil Procedure of Argentina have serious advantages: a) closed list of foundations of exclusive jurisdiction of local courts is established; b) recognition of parties’ autonomy of will in choice of court is introduced; c) principle of controlled plurality of proceedings is formulated.
The article examines the provisions of EU and EAEU law regarding the role and place of international agreements and international customary law in their respective legal orders. The duty of regional integration organisations to comply with international law necessitates the creation of mechanisms allowing incorporating international law norms into the EU and EAEU legal systems while ensuring the independent (autonomous) character of these legal orders. The case law of supranational courts plays a prominent role in resolving this issue. The author focuses primarily on issues that are relevant not only for the EU but for the EAEU at the current stage of its development: ensuring that international agreements with third parties are compatible with the main rules and principles of the functioning of the integration organization; the possibility for individuals to challenge the validity of EU/EAEU institutions/ bodies acts on the ground that they are contrary to international treaty or customary law as well as to the binding nature for a regional integration organisation of international agreements concluded by Member States in fields where the competence has been transferred to the supranational level. The author comes to the conclusion that despite the fact that the mechanisms provided by the EAEU Treaty are insufficient, the gaps can be partially filled by the EAEU Court through its case law. In that regard the jurisprudence of the Court of Justice of the European Union represents an important benchmark, although it needs to be assessed critically. Thus, the strict approach of the CJEU regarding the direct effect of universal international agreements as well as its application of the functional succession doctrine in relation to international agreements concluded by Member States makes it difficult for individuals to rely on international law in order to protect their rights.
The confrontation between the free media and the state, represented by its institutions, is a problem not only in modern Russia, but also in other countries. Somewhere this confrontation is long-term, systemic in nature, somewhere there are isolated, but nevertheless, acute conflicts. The judgments of the European Court of Human Rights on complaints brought by journalists and the media on violations of article 10 of the Convention are not only a remarkable illustration of such conflicts, but also reminder for national courts to ensure freedom of the media in accordance with domestic legislation and international obligations assumed by States. In the case of Skudaeva v. Russia, we can see a clearly defined legal position of the ECtHR in application of article 10 of the Convention regarding freedom of expression of opinion of a journalist, assessing actions of the authorities. In its judgment, the European Court stressed that national courts should seek a balance between freedom of speech and freedom of the media, on the one hand, and the right of a public person to the protection of honor and dignity, on the other hand. The court also recalled the importance of distinguishing between information on facts and the journalist's value judgments in connection with the possibility of further evaluation of the journalist's statements in terms of reliability. The court pointed to the need for increased tolerance of public persons to criticism, stressing that the activities of officials can and should be criticized. The Court also noted that the restriction of freedom of expression is permissible, but in all cases must be justified by national courts in accordance with the principles and standards of article 10 of the Convention. In fact, the European Court has pointed out to national courts that it is inadmissible to prejudge the circumstances of a case in which a public person acts as a plaintiff, especially if he or she has public powers. In such disputes, the courts should be mindful of the role of the media in a democratic society, and if a journalist raised a socially significant issue by criticizing the authorities, the courts should take the part of him or her, despite the fact that the authorities might feel derogated.
Articulation by the USA and the United Kingdom of their position that sovereignty is not more than a general principle, which in the absence of an international custom concerning the protection of sovereignty in cyberspace cannot give rise to the international responsibility, resulted in a new spiral in the discussion on how the International law concept of sovereignty can or should be applied in cyberspace. This discussion, being known as a dispute on sovereignty as a rule or as a principle is connected with the application of a strictly positivistic discourse that is based on the lex lata provisions of International law. This article invites to break free from these frames turning to the legal-philosophical theories conceiving sovereignty on the basis of property, competences, or functions. It is assumed that by making use of the stereoscopic approach to the appreciation of the nature of sovereignty and the use of functional theory in addition to the concept of ‘territorial sovereignty’, it is possible to advance new ways for the formalization of sovereignty in cyberspace. As the application of this theory allows keeping cyberspace in its present stance as a global sphere and not diminishing for states the realization of their functions, such an approach can pave the way for a possible change of the vector of the positivistic discourse on the application of sovereignty in cyberspace.
The norms of Eurasian Economic Union law and the norms of WTO law mostly govern international trade relations. Therefore, the spheres of international relations governed by WTO law and the law of the Eurasian Economic Union often overlap. Moreover, the Treaty on the Eurasian Economic Union contains references to WTO agreements. This paper is aimed at determining specific characteristics of challenging measures adopted by the Eurasian Economic Union (EAEU) in the WTO Dispute Settlement Body (DSB). The analysis is based on four existing disputes where complainants put forward an issue connected with the inconsistency of EAEU law or its interpretation and its application to WTO obligations. Russia is the respondent in three out of four disputes mentioned above, and Kazakhstan is the respondent in one of the four disputes. The authors conclude that WTO law and EAEU law should be interpreted and applied on the basis of the principle of harmonization. However, the norms of EAEU law are not considered by the DSB as rules of law. Rather, they are considered as measures applied by EAEU member-states, while taking into account the fact that the EAEU is not a member of the WTO. Moreover, all the actions of the EAEU and its bodies are attributable to every EAEU member-state. The authors also conclude that not only the content of EAEU law norms as such, but also the method of their interpretation and application is of great importance in the context of challenging measures adopted by the EAEU in the DSB. The paper contains more detailed analysis of the Panel Report on Russia – Railway equipment. The other four disputes are briefly covered with a special focus on challenging measures adopted by the EAEU in the DSB. The paper makes several concluding remarks in respect to the specific characteristics of challenging such measures in the DSB.
The article aims at interpreting and analyzing the WTO security exceptions. Provisions of Article XXI(b)(iii) of the GATT relating to a situation emergency in international relations have been applied by a panel for the first time in GATT/WTO history in Russia – Measures Concerning Traffic in Transit case. The landmark decision contains important conclusions regarding the scope of this exception and reviewability of measures adopted thereunder. The article analyzes subjective and objective approaches towards interpretation of the WTO security exception, as well as at the approach of the Panel in Russia – Measures Concerning Traffic in Transit case. The article concludes that the position adopted by the Panel illustrates its attempt to strike a balance between two opposite views on whether measures adopted under the security exception can be reviewed. On the one hand, the decision clarifies a number of previously disputed issues on the WTO security exception’s interpretation. On the other hand, its language is ambiguous relation to several important issues, which creates a risk of potential abuses. The article further concludes that, relying on the principle of effective interpretation that is well established in the WTO practice, the Panel established a four-tier test for the purposes of Article XXI(b)(iii). Pursuant to this test, measures adopted thereunder must be consistent with the following criteria: chronological criterion, the criterion that there be an emergency in international relations, the criterion requiring the asserted security interests to be essential, as well as the criterion that there be a nexus between the adopted measures and their alleged purpose. The article indicates that the Panel’s attempt to balance security interests of states with their obligations under the WTO resulted in application of a combined approach: when interpreting paragraph (iii) of Article XXI(b) of the GATT the Panel used objective approach, whereas under the chapeau of Article XXI(b) it used subjective approach.
Criminal prosecution of persons detained in the course of fight against piracy off the coast of Somalia is connected with a number of legal problems, existing both at the national and international levels. Analyzing these difficulties and ways to overcome them the author comes to the conclusion that the creation in this region of a special court for prosecution of the persons, responsible for piracy and armed robbery at sea, is a justified measure able to solve many of the arising problems.
International justice does not remain on the sidelines from the intensive development of social media: the data stored on the social media possesses great evidentiary value in international courts. The dispute over the disclosure of information by Facebook for use in the Gambia v. Myanmar dispute before the International Court of Justice raises a broader issue of the international legal status of telecommunications companies, obligations of companies and states in relation to the use of social media for human rights violations and commission of international crimes. The article assesses the existing international legal regime of human rights obligations of global social media corporations, as well as their role in administration of international justice, by examining the case of the use of Facebook disseminating hate speech and inciting violence against the discriminated group of Rohingya in Myanmar. The authors analyze the report of the Independent International Fact-Finding Mission on Myanmar, Facebook's reaction to the information of its influence on the situation with Rohingya, and measures taken by the company to reduce the negative impact of its business activity on human rights. The article draws attention to the inconsistent position of Facebook with regard to facilitating the investigation of violations of international law committed through the social media. In particular, the authors comment on the dispute between the Gambia and Facebook before the U.S. Courts arising from the request on disclosure of materials forming evidence in the case of the Gambia v. Myanmar, and lack of action from the US with respect to human rights violations and genocide committed with resources of the US-based social media company. The authors underscore the uncertainty of international legal regulation that impedes effective international investigations of serious human rights violations. Non-state actors remain outside the reach of international justice and international accountability mechanisms, especially when they operate in jurisdictions of states that ignore their positive human rights obligations. The authors conclude that it is necessary to develop effective mechanisms for cooperation and accountability of social media corporations in the field of international justice, as they play an increasing role in the investigation of serious violations of human rights.
On 17 March 2020 the European Court of Human Rights delivered a decision on admissibility of the complaint in the case of Shmelev and Others v. Russia, in which the Court provided an assessment of a new national remedy, avail- able for the protection from inhuman and degrading conditions of detention.
This new mechanism was introduced by a federal law in January of 2020 and provides for a possibility to apply for a compensation for poor conditions of detention. Although the Russian courts have not had enough time to establish case-law on the remedy application, the European Court of Human Rights recognized the need to exhaust this remedy before lodging an application with the Strasbourg Court. According to the amendments to the legal regula- tion, a compensation may be demanded by persons in pre-trial detention and by persons sentenced to imprisonment by court decision. The article focuses on the provisions of the new law and on the following unresolved issues: those
who can recur to the new mechanism, the process of admission and examination of the applications, and the amount of compensation. As the authors emphasize, these issues may and should be clarified and interpreted by the Supreme Court of the Russian Federation in its ruling. However, before this happens, the procedural strategies of the potential applicants are uncertain.According to the authors’ opinion, the assessment of the effectiveness of the new remedy is still to be given by the ECtHR and for the moment the appli-cants are only able to test it empirically in domestic courts. The authors of this paper explore the ECtHR’s main conclusions in the Shmelev case and make a prediction about further assessment of the new measure by the European Court and the Committee of Ministers. In the second part of the research, an overview of remedies, taken by several European countries in order to address a structural problem of inhuman or degrading conditions of detention, is presented. It is stated, that only a functioning symbiosis of preventive and compensatory measures is considered to be an effective domestic remedy for protection from the abovementioned infringement by the institutions of the Council of Europe. At the same time, the adoption of such measures poses a certain risk for the national legal systems.
In the Judgment Hassan v. The United Kingdom the European Court of Human Rights reviewed its approach to the correlation between International Humanitarian Law and the Convention on Protection of Human Rights and Fundamental Freedoms in the fields of right to liberty and legality of derogation from obligations under this Convention outside the procedure set forth in Article 15. This paper contains a critical assessment of justification and legitimacy of this approach and warns against its application to internment in non-international armed conflicts.
The problem of access to justice continues to be relevant both in the practice of the European Court of Human Rights and at the level of national legal regulation. The purpose of this article is to systematize the accumulated theoretical ideas about the access to justice and analyze their practical implementation by the ECHR. The study begins with a historical overview of views on access to justice. It is concluded that indirectly this problem was understood by mankind since the time of Roman law, but the systematization and specification were obtained only in the second half of the twentieth century. Then the article gives a brief comparative analysis of the concepts of "access to justice", "the right to access to justice", "access to court". This analysis is based, among other things, on the Russian doctrine. The main part of the article is devoted to the practice of the ECHR. Thus, the analysis of the practice begins with a review of Case of Golder v. the United Kingdom, the judgment on which became the foundation and basis for the further positions of the ECHR. It also provides an overview of the dissenting opinions of judges who have not accepted the need to ensure access to justice as an independent element of the right to a fair trial. Further, the article reveals the approaches of the ECHR to restrictions on the right of access to justice, compares the legal position of the ECHR, when such restrictions are possible, and when they violate the Convention for the Protection of Human Rightsand Fundamental Freedoms and fundamental freedoms (European Convention). Finally, considerable attention is paid to the question of what essential features justice should possess for the purposes of the right of access to justice. At the end of the article, a brief overview of the areas where access to justice intersects with other elements of the right to a fair trial is given. Article is based on comparative legal and historical methods of analysis.
The article is dedicated to development of norms concerning jurisdictional immunities of states and their property in modern international law influenced by human rights doctrine, fight against terrorism, obligation to ensure everyone’s right to court, protection of labor, civil and commercial rights of private parties. The author considers difficulties faced by international and municipal legal systems in framing balanced approaches that could take into account various conflicting interests and secure stable and friendly relations among states. The article suggests several possible ways how regulation of jurisdictional immunities of states and their property could change in future.
In the current article, the authors analyze emerging approaches of Russian courts (the Constitutional Court of the Russian Federation, arbitrazh (commercial) courts and courts of general jurisdiction) on resolution of disputes connected with economic sanctions imposed against Russia in 2014, as well as legal qualification of relevant legal issues. The Russian courts take a clear stand that these economic sanctions are unlawful from the standpoint of international law; for this reason, the effect of foreign regulations and the relevant provisions of commercial contracts aimed at enforcing sanctions’ restrictions is blocked in Russia on the basis of protection of the national public order. In this context, Russian case law is consistent with Russia's general state policy aimed at denying the legitimacy of unilateral coercive measures, which are introduced without authorization of the UN Security Council and are considered as unfriendly actions by foreign states that threaten Russia's sovereignty. At the same time, Russian courts try to mitigate negative legal consequences of sanctions for Russian and foreign businesses in domestic jurisdiction. There is sufficient evidence to support the assumption that Russian courts try to use balanced approaches in relation to legal responsibility for compliance with foreign sanctions by private individuals. Courts are rather neutral to contract provisions that are aimed at preventing conflicts caused by economic sanctions (sanction clauses), and also generally adhere to fair solutions in cases of non-performance of obligations caused by sanctions’ prescriptions. Courts distinguish failure to perform obligations based on objective circumstances (force majeure, fundamental change of circumstances) and non-compliance with contractual and other duties for the reason of failure to act diligently or standard business risks.
In cases related to application of the Convention on Protection of Human Rights and Fundamental Freedoms on the territories of unrecognized states, the European Court of Human Rights, in order to establish responsibility of a state-party, commonly uses an approach, which is based both on mixture of notions “jurisdiction” and “attribution” and on significant lowering threshold for attribution. The author comes to the conclusion that application of this approach in cases, when a state-party to the Convention is not an occupying one, does not confirm with existing international customs in the sphere of international responsibility, regardless of choice of either “effective” or “overall control” test. Generally speaking, it seems that, guided by good intentions to prevent legal vacuum in the field of protection of human rights in the territories of the unrecognized entities, just because of the unnecessary mixing conventional concept of “jurisdiction” with the general concept of “attribution”, and also out of the reluctance to see the actual specifics of individual cases, the ECHR more and more moves away from the international responsibility laws, undermining thus its own effectiveness.
The article is devoted to the problems of language inequality in the countries of the Americas, a view of which is carried out through the prism of the decisions of the Inter-American Court of Human Rights. The author analyzes the phenomenon of linguistic discrimination (linguicism) in the diversity of its manifestations. Attention is paid to the functions and principles of the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights as the central bodies for the protection of human rights in the Americas. A selection of court decisions was made based on the novelty and severity of the language conflict. Although the key subject matter of most of the cases of the Inter-American Court of Human Rights analyzed in the article was not linguistic discrimination per se, it became a separate issue for consideration by the Court, and the Court paid close attention to it. The legal positions developed by the Court are of great interest: during the trial, the Court demonstrates full involvement in the problem, refers to expert opinions of specialists — sociologists and ethnographers, who, together with valuable witness testimonies, as well as an analysis of the national and international regulatory framework, allow us to develop an understanding of the peculiarities of the linguistic rights of small ethnic communities of Latin American states, as well as an understanding of the legal regulation of the status of various languages by respondent states. The conclusion is made about the unsatisfactory legal status of the indigenous peoples of a number of countries in the Americas in terms of observing their linguistic rights. The implementation of these rights is particularly difficult in the field of education and legal proceedings. The lack of attention to the issue of preservation and development of small languages is explained by both the crisis component — civil and political conflicts, unstable economic conditions, and the intentional discriminatory policies of states in relation to ethnic communities. In addition, in most countries there is no system for training bilingual personnel for work in the public sector; this makes the task of integrating a particular minority into the public sector on equal terms with other, larger ethnic units, very difficult. The author concludes that in some cases, linguicism makes impossible not only the ability to use the rights that are available to most people, but also causes negative psychosocial effects within the language group itself, associated with the formation of a critical attitude to native language, refusal to use and formation of a negative image of the native language.