CONTENTS
RES JUDICATA
DISCRIMINATION OF HIV-POSITIVE FOREIGNERS IN RUSSIA AND THE EUROPEAN COURT OF HUMAN RIGHTS
Ilya Shablinskiy
This article considers decisions of the European Court of Human Rights regarding the discrimination of HIV-positive foreigners in the Russian Federation in the wider context of implementing their right to respect for their private and family life. The primary cases for analysis are Shvalya v. Russia, Kostycheva v. Russia, and Novruk and others v. Russia. The European Court of Human Rights decided on these three cases, which share similar fact patterns, within the same week. The applicants were discriminated against in the interest of maintaining public health. The article relays the stories of each case in detail. The European Court had already heard cases connected with the discrimination of HIV-positive persons. In particular, an important example was the ECHR’s judgment in Kiyutin v. Russia.
Rustam Kasyanov
Three years ago, the Court of Justice of the European Union (ECJ) delivered a judgment in the case of UK v. Parliament and Council. This judgment allows for a better understanding of the recent developments in security markets of the European Union and in the legal regulation of these processes. This case broadens the legal discourse in the EU and provides solid ground to reflect on these trends. Explaining the ECJ’s position, the author shows the systemic character of the European Union’s approach to market regulation. The EU solves problems holistically and simultaneously shows a high degree of adaptability to new conditions. This commentary reveals the main trends in the legal regulation of financial markets in the EU.
EX OFFICIO
INTERMEDIARY LIABILITY FOR ONLINE USERS COMMENTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Robert Spano
In the recent judgments of Delfi AS v. Estonia and Magyar T.E. and Index.hu Zrt v. Hungary, the European Court of Human Rights for the first time sought to clarify the limits to be imposed on intermediary liability regimes for online user comments, and the factors to be assessed in the determination of the appropriate balance between the Article 10 of the European Convention on Human Rights speech rights of online intermediaries and the Article 8 reputational rights of those targeted by unlawful user comments. In doing so, the Court has left open to Contracting States the choice of intermediary liability regime to be adopted at the domestic level.
JUSTICIA
PROCEDURAL LAW OF THE INTERNATIONAL COURT OF JUSTICE: INTERPRETATION OF A DECISION
Sergey Punzhin
Article 60 of the Statute of the International Court of Justice stipulates that in the event of a dispute as to the meaning or scope of a judgment, the latter may be interpreted by the Court. The purpose of the interpretation is to clarify the content of the judgment rendered and not to adjudicate upon the dispute de novo. In the process of interpretation the Court cannot pronounce on questions which were not submitted for its consideration within the framework of the original dispute, the decision on which is the subject of the request for interpretation. In the interpretation, the Court must remain strictly within the framework of the original decision and can neither question the binding provisions contained therein nor give answers to questions on which the Court did not speak in the original decision.
JUS GENTIUM
THE COURT OF THE EURASIAN ECONOMIC UNION: FROM LEGAL OPINION TO THE EFFECTIVE LAW
Tatyana Neshataeva
The Court of the Eurasian Economic Union (EAEU Court) plays a significant role in strengthening Eurasian integration. This Court is a major judicial body of the Union responsible for the legal regulation of relations and the settlement of disputes both between member states and between economic and business entities. The principal operative form of the EAEU Court work is the interpretation of the law of the Union, ensuring legal uniformity and judicial control in the sphere of implementation of the legal norms. One of the main functions of the Court is formal, systemic configuration of the norms of Eurasian law in order to fill the gaps in Union law through the formulation of judicial legal opinions (judicial rules) that consolidate all types of legal regulation that are stipulated by the treaties and are reflected in common unified, coordinated and coherent policies of the EAEU.
JUS COMMUNE
Sergey Glandin
The European Court of Justice (ECJ) has so far handed down four judgments at the suit of the Russian persons designated under EU sanction program: Messrs Rotenberg and Kiselev, as well as Almaz-Antey and Rosneft. Based on the ECJ findings it is possible to make forecasts for other Russian applicants whose lawsuits are pending, and to opine on the international responsibility of the Russian Federation for the annexation of Crimea; attributing responsibility of a State to its residents for destabilisation in a neighboring country and on the goals that the EU wants to achieve by restricting Russian residents. The ECJ has recognised restrictive measures against Russian residents as valid because the restrictions imposed by the EU meet the goals pursued.
LEX MERCATORIA
Ilia Rachkov
The competence (jurisdiction) of international investment arbitration tribunals is one of the most vivid problems arising when a foreign investor tries to settle a dispute with a host state. The dispute settlement procedure often starts with determining the question: does the arbitration tribunal have competence (jurisdiction) to try the case between the foreign investor and the host state? If the tribunal answers this question in the affirmative in a specific dispute, it will proceed to try the dispute on its merits. Thus, foreign investors holding that their rights have been infringed by the host state, provide the tribunal with arguments proving that the tribunal has appropriate jurisdiction. In contrary, host states try to convince the tribunal that it lacks proper jurisdiction.
JUS CRIMINALE
THE AL-MAHDI CASE AND ATTACK AGAINST CULTURAL PROPERTY AS AN INTERNATIONAL CRIME
Аni Нarutyunyan
The Al-Mahdi case at the International Criminal Court (ICC) was a signal to armed groups and governments that attacks against cultural property cannot go unpunished. Ahmad Al Faqi Al-Mahdi was convicted by the ICC for committed war crimes of intentionally directing attacks against historical buildings and monuments. Still, while applying the provision of the war crime of attacking cultural property, the Court went beyond the strict content of the war crime of attacking cultural property, as codified in the Rome Statute; “attack” in the context of the Rome Statute has a specific meaning and refers to a combat action during a military operation.
LIBRORUM
THE LAW OF STATE IMMUNITY: FROM EROSION TO TRANSFORMATION
Vladislav Starzhenetskiy
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.