IJ № 1 (41) 2022

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CONTENTS

TRIBUNA

HOW UNIVERSALIZED ARE “UNIVERSAL STANDARDS” OF HUMAN RIGHTS: THE CRITICAL SCHOOL OF INTERNATIONAL LAW REAPPRAISED

Andrey Medushevsky

The idea of the universal character of fundamental human rights and their protection became the cornerstone of international legal theory and practice after the end of the Second World War, opening the way to formation of universal standards of human rights and their implementation by transnational and national courts. This global legal order being formed was based on the rational presumption that Western liberal values could be gradually advanced beyond national borders in order to construct a new cosmopolitan post-national reality of international constitutionalism, thus averting violations of human rights by non-democratic political regimes. However, this idealistic vision has recently been put under question by the growing fragmentation and asymmetry of a multi-polar international order, powerful regional unions and states, and rising anti-globalist forces of a different ideological character. This intellectual trend, summarized as the critical school of international law, proposed an alternative vision of legal globalization and of human rights and their protection. The mainstream concept of global liberal constitutionalism was rejected as an oversimplification of the differentiated legal order, which is ruled not by common values but by very different competing interests. In this intellectual framework the “universal character” of human rights is nothing more than a form of “false universalism” — a new form of dominance by the global superpowers over developing countries in order to maintain the existing unfair system of international order and the inequality of the world’s regions, countries and minorities, which historically had no voice in these debates. The author summarizes the arguments of this critical wave of international debates on such issues as the legitimacy of international law, symmetry and fragmentation, regional strategies of adaptation to international standards, the place of so-called post-liberal values as alternatives to liberal ones, and possible new trajectories in international constitutional justice. In conclusion the author formulates a new dilemma for the universality principle — it could be realized only by reciprocal agreement of all global actors, but this consensus cannot be achieved in the current situation of deep cognitive dissonance. The solution of this problem is possible on the basis of cognitive constitutionalism as a new form of international dialogue about the global legal order.

SCRIPTORIUM

JUS HOMINUM

THE RIGHT TO BE FORGOTTEN: THE EUROPEAN COURT OF HUMAN RIGHTS IN SEARCH OF THE NECESSARY BALANCE

Tigran Oganesian

The right to be forgotten has become one of the answers to the challenges of the Internet, developed in an attempt to enable users to forget their past. This right was particularly emphasized in 2014 by the European Court of Justice in the Google Spain case. However, despite the primacy of the ECJ in recognizing the right to be forgotten, the ECtHR has developed a more extensive case law on balancing the right to respect for privacy with freedom of expression, setting criteria for solving the complex issue of finding the necessary balance. Updating the topic under study, the author emphasizes that if the competing rights are incorrectly balanced, the right to be forgotten can lead to unjustified censorship on the Internet. The solution of this complex issue will largely determine whether the right to be forgotten can become an international universal law. In this regard, the case-law of the ECtHR is analyzed, in which the criteria for determining the right balance between the right to be forgotten and freedom of expression are developed. It is noted that, on the one hand, the case-law of the ECtHR is inconsistent, and on the other hand, the right to respect for privacy can be rethought in the light of the interaction of the right to be forgotten and freedom of expression. The comparative analysis examines the factors that the ECtHR pays attention to when balancing the right to be forgotten with other competing rights. In particular, based on the analysis of the ECHR’s positions in the judgment in the case of Hurbain v. Belgium, it is noted that the applicants’ request for the right to be forgotten may be more likely to be satisfied if attention is focused on the anonymity of the article, rather than on its complete deletion (exclusion). The author’s attention is also drawn to the difference between the approaches of the ECJ and the ECtHR in finding a balance between the right to be forgotten and freedom of expression. It is noted that when balancing the ECtHR attaches particular importance to a factor like causing significant harm as a result of the publication of information. These and other differences may lead to uncertainty regarding the consistent interpretation of European legal norms governing the right to be forgotten. In the final part of the article, it is noted that the ECtHR should review the criteria for balancing that were applied earlier and improve them with respect to the right to be forgotten in the sense in which this right is now understood. Until uniform criteria for finding the necessary balance are formed, the right to be forgotten will continue to remain an “unpredictable” right.

DEVELOPMENT OF THE CONCEPT OF ENVIRONMENTAL HUMAN RIGHTS IN THE PRACTICE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Alexander Solntsev, Anastasia Otrashevskaya

The current practice of international courts testifies to the close correlation of human rights and environmental protection. The “greening” of human rights contributes to improving the health and well-being of people around the world and the prevention of possible global negative consequences. This study analyzes existing international laws and the developing judicial practice regarding the defense of ecological rights and the interaction of separate categories of human rights including the rights to life, food, water, and a favorable environment. In the framework of this study, we will examine how this process takes place in the inter-American system for the protection of human rights, paying special attention to Advisory Opinion OC-23/17 issued by the Inter-American Court of Human Rights on November 15, 2017 (published on February 8, 2018). The revolutionary approach of the Court’s opinion has stimulated an active discussion in the international community. This Advisory Opinion recognized the right to a healthy environment as an autonomous right, one not directly formulated by the American Convention on Human Rights of 1969 (Pact of San Jose) or the San Salvador Protocol but “derived” from the interpretation of other established rights. The legitimacy and validity of the Court’s legal position remained in question for several years. However, in 2020 in its decision “Indigenous Communities of the Lhaka Honhat Association v. Argentina”, the arguments of the Advisory Opinion under consideration were repeatedly cited and the decision was supported by the Chairman of the Court (on an equal vote 3 “for” and 3 “against”). The article also pays special attention to the genesis of the protection of environmental human rights within this region by the San Salvador Protocol of 1988 and the Escazu Regional Agreement on Access to Information, Public Participation and Environmental Justice in Latin America and the Caribbean of 2018.

KOSOVO SPECIALIST CHAMBERS – A NEW ORGAN OF INTERNATIONAL CRIMINAL JUSTICE

Andrey Antonov, Aleksandr Evseev

This article discusses various issues related to the functioning of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office: the prerequisites for their creation, the thorny path of their formation, the legal basis for their activity, and the procedural and practical features of their work. The authors briefly consider the experience of the International Criminal Tribunal for the former Yugoslavia regarding crimes committed on the territory of the then-Yugoslav province of Kosovo. In particular, some data are provided on the numbers of investigated and eventually criminally prosecuted Kosovo Serbs and Kosovo Albanians, as well as the challenges of investigations against currently active political leaders who enjoy popular support in Kosovo. Further, an overview is offered of criminal cases currently being considered by the Specialists Chambers, including those against the former President and the Speaker of the Parliament of the “Republic of Kosovo”. The article also considers various particular political aspects which are inseparable from international criminal justice in general, as well as from these Chambers, and have great influence on its procedures. The article emphasizes that the Kosovo Specialist Chambers is a hybrid (internationalized) court that radically differs from preceding international juridical bodies. In particular, only international judges take part in its activities; it is located not in the capital of this post-conflict territory, but in the Hague; and national authorities do not have the burden of financing its actions. The personal composition of the Specialist Chambers is separately considered, with the biographies of its judges being briefly analyzed. Also, an overview of the procedural specificities of its investigations, including detention and cooperation with Kosovan law enforcement authorities. In addition, the article highlights the paradoxical situation where representatives of the international community, working under the auspices of the EU, had to apply the Criminal Code and the Constitution of a partially recognized state-like entity to the extent that these do not contradict general international law. This article also describes a novelty that was introduced in the Chambers, namely creation of the position of Ombudsman, designed to protect the rights of the employees and other persons involved in its activities. In conclusion, the authors note that it is too early to draw conclusions regarding the worthwhileness of creating this body and regarding its effectiveness.

LEX MERCATORIA

THE LAW GOVERNING ARBITRATION AGREEMENTS: A COMPARATIVE LAW ANALYSIS

Dmitry Kaysin, Aleksandra Aslanyan, Irina Kiz'ko

Determining the law applicable to an arbitration clause is a controversial issue in international commercial arbitration doctrine and practice. An arbitration agreement is of an autonomous nature and, therefore, the parties to the transaction are free to choose the law applicable to it. In practice, however, counterparties very rarely specify the law governing the arbitration clause. By applying a comparative method, the authors examine three main approaches which have emerged in the international arena, noting a wide variety of views and numerous instances of competition between the decisions of courts in different jurisdictions. Like some other jurisdictions, by reference to the provisions of the 1958 New York Convention, the Russian Federation has expressly opted for the law of the place of arbitration unless the parties have expressly agreed otherwise. On the other hand, a large number of jurisdictions have taken the approach that the law of the underlying contract is the law applicable to the arbitration agreement. The article also deals with the possibility of applying “cross-border” rules to the arbitration agreement. The authors examine in detail the practice of English courts. Thus, the authors study the criteria elaborated in the 2012 judgment of the appellate court in Sulamerica v. Enesa Engenharia. In the course of review of a complaint filed in another case, Enka v. Chubb, in October 2021, the UK Supreme Court added complexity to the English approach by making it less clear. Also in 2021 in its ruling in Kabab-Ji SAL v. Kout Food Group on enforcement of an arbitral award, the UK Supreme Court confirmed this approach, but its conclusions on the law applicable to an arbitration agreement were at odds with the conclusions of a French appellate court which was guided by a different test while considering an application to set aside the same arbitral award. Particular attention is paid to the validation rule, which is directed to the construction of an arbitration agreement in favor of its validity. Many European jurisdictions have enacted this approach as a law, and more and more researchers support it as a baseline in determining the governing law. The authors conclude that the absence of uniform and comprehensible criteria for establishing the law governing an arbitration agreement causes considerable difficulties and remain sceptical about the idea of an international consensus on this problematic issue.

HISTORIA

GUYANA VS. VENEZUELA: HOW THE PAST PREVENTS US FROM LIVING IN THE PRESENT: INSTEAD OF A FOREWORD

Ilya Rachkov, Elizaveta Rachkova

For the first time, we publish an excerpt from the diaries of Fyodor Fyodorovich Martens (15 August 1845 — 9 June 1909), an outstanding Russian international lawyer, whose memory is still honored by many states and international organizations. The excerpt contains Martens’ memoirs of the arbitration of a dispute between Great Britain and Venezuela in 1899. The dispute concerned the territorial delimitation between Venezuela and British Guiana (now Guyana). Although in 1899 this dispute was decided by a unanimous award of five arbitrators, its consequences still have repercussions, as Venezuela did not accept the results of the arbitration. One of the main reasons for this dissatisfaction of Venezuela with the award was that allegedly F. F. Martens was not completely impartial and independent when the panel of arbitrators was resolving the dispute. This opinion was expressed before his death in 1944 by Severo Mallet-Prevost, a member of the legal team representing Venezuela. He dictated a memorandum to his colleague in a New York law firm. In 1949, after Mallet-Prevost’s death, this colleague of his, Otto Schoenrich, published a memorandum in the “American Journal of International Law”. Venezuela considered that what was stated in the memorandum gave it the right not to obey by the award of 1899. Due to this, in 2018, Guyana felt itself compelled to apply to the International Court of Justice, the main judicial body of the United Nations. Guyana demanded that the ICJ rule that the 1899 award was valid and binding on Guyana and Venezuela, and that the boundary established by that award and the 1905 Agreement was also valid. On 18 December 2020, the ICJ ruled that this aspect of the dispute falls within its jurisdiction (which Venezuela objected to). It follows from the published excerpt that Venezuela’s suspicions of lack of impartiality and independence on F. F. Martens’ side are unfounded. The ICJ is likely to grant Guyana’s claim on the merits. An opposite judgment would mean the repudiation of a number of important principles of international justice, at least such as legal certainty and good faith performance of obligations established by a competent international judicial body.

A FRAGMENT FROM FYODOR FYODORO­VICH MARTENS’ DIARY FOR 1899

ACADEMIA

SCHOLA

THE SYSTEMIC CRISIS OF INTERNATIONAL INVESTMENT ARBITRATION: ITS REASONS AND WAYS OUT

Evgeniy Evseev

The article is devoted to modern problems of international investment arbitration. Most domestic and foreign researchers note that the current state of this institution has long ceased to meet the requirements arising from globalization. The balance of interests of the parties during consideration of disputes between a foreign investor and a receiving state is clearly not on the side of the latter. The panels of arbitrators are more interested in successful resolution of the case for investors because they create demand for the services of arbitration justice. And excessively long and expensive proceedings sometimes end up being made by a panel of three individuals as so-called “expansionist decisions” defining a particular sovereign act of the state in various socially significant areas as an expropriation which entails a violation of the rights and legitimate interests of the investor, with the latter being awarded fabulous compensation. These and other similar manifestations of the institution have met fierce criticism both doctrinally and in law enforcement practice. Several states have already taken actions to limit the unreasonably strong impact of investment arbitrations on state sovereignty, but the problem is still acute and on a global scale is far from being resolved. In this article the reasons for such an effect, both organizational and legal in nature, are analyzed. The author concludes that the tools available to states at this stage, including the ability to amend interstate investment agreements, should generally be sufficient to balance the interests of the parties. However, to radically change the situation, it is necessary to abandon following the current model of international commercial arbitration, especially regarding the appointment of arbitrators, and to create a delocalized and permanent arbitration institution with an appellate body, the effective establishment of which the author sees possible by uniting a small number of states that have enough economic power and investment attractiveness and are bound by common political and economic goals. The association of BRICS countries should be considered as the basis for such an alternative.