IJ № 3 (39) 2021

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TRIBUNA

NORMATIVE PROPOSITIONS OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

Roman Kolodkin

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

RES JUDICATA

INTER-AMERICAN COURT OF HUMAN RIGHTS: A REVIEW OF PRACTICE FOR 2020

Oscar Parra Vera, Edward Jesús Pérez

This article presents a grasp of the Inter-American Court of Human Rights’ most important case law of 2020. As is developed within the paper, during 2020, the Court made important developments on Inter-American case-law which will have relevant incidence for the region. Many of the major developments that will be studied in this paper concern the right to nondiscrimination; economic, social and cultural rights; detention conditions, and some important advances on rights protection within the COVID-19 context.

EX OFFICIO

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE GRAND CHAMBER JUDGMENT OF 16 FEBRUARY 2021 IN THE CASE OF HANAN V. GERMANY (APPLICATION NO.4871/16)

In Hanan v. Germany (application no.4871/16), the European Court of Human Rights considered the issue of the effectiveness of the German authorities’ investigation of the deaths of the applicant’s two sons as the result of an airstrike. The Court decided that the investigation satisfied the requirements of Article 2 of the Convention. The Court pointed out that all the circumstances needed to determine criminal liability of the suspected persons were established during the investigation. Delay in starting the investigation was due to the deaths having occurred in the active hostilities phase of an armed conflict. However, the investigation was able to identify the person who ordered the airstrike. The applicant, as next-of-kin of the persons killed, was not deprived of an opportunity to participate in the investigation. The Court concluded that the failure to examine the applicant as a witness did not constitute a violation of Article 2 of Convention, because he could not have provided additional information to determine the criminal liability of the person who ordered the airstrike. Also, the Court noted that the applicant had effective remedies to challenge the effectiveness of the investigation and had used these.

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE GRAND CHAMBER JUDGMENT OF 2 FEBRUARY 2021 IN THE CASE OF X AND OTHERS V. BULGARIA (АPPLICATION NO.22457/16)INTER-AMERICAN COURT OF HUMAN RIGHTS: A REVIEW OF PRACTICE FOR 2020

In X and Others v. Bulgaria, the European Court of Human Rights analysed the procedural obligation under Article 3 of the Convention to investigate cases where children may have been victims of sexual abuse. The Court reiterated that this obligation needs to pursue an obvious line of inquiry. The Grand Chamber also decided that in such cases, the requirement to conduct an effective investigation must be interpreted in light of obligations that arise from other applicable international instruments, and more specifically, the Lanzarote Convention. In this regard, the procedural obligation under Article 3 of the Convention may include inter alia an obligation for the investigating authorities to cooperate with the authorities of another State, as well as a necessity to conduct investigative measures of a more covert nature. However, the Bulgarian authorities neglected to pursue certain lines of enquiry in the applicants’ case. In particular, they failed to use international cooperation mechanisms and did not carry out numerous investigative measures, including covert measures. According to the Court, the Bulgarian authorities did not take all reasonable measures to shed light on the facts of the case and did not undertake a full and careful analysis of the evidence provided. Consequently, the Court concluded that there had been a violation of procedural limb of Article 3 of the Convention.

JUSTICIA

THE EUROPEAN COURT OF HUMAN RIGHTS IN SEARCH OF LOST TIME: AN EVOLUTIONARY INTERPRETATION

Tigran Oganesian

Time is central to the case law of the European Court of Human Rights. By monitoring the effectiveness of the Convention’s system, the European Court of Human Rights (ECHR) tries to maintain relevancy and respond to new challenges. The author notes that the evolutionary interpretation is a method that provides the ECHR with the necessary degree of flexibility to ensure that the implementation of the rights is guaranteed by the Convention. Throughout this comparative analysis, the author emphasises that due to the peculiarities and differences in the legal culture of the respondent States, it is can be extremely difficult for the Court to promote a progressive interpretation of the Convention’s rules, even if it is consistent with the objectives of the Convention. In this regard, the Court’s decision in the Tyrer case is the embodiment of the philosophy of the living instrument. However, the Court presented a model of evolutionary interpretation and failed to immediately demonstrate how it works and will work in the future, which gave rise to a significant part of the criticism. As part of the critical views’ analysis on the application of the ECHR’s evolutionary interpretation, the author highlights that one way to overcome the subjective factor in evolutionary interpretation is the European consensus. This allows the Court to base its decisions on the “common denominator”, that is, not on the judges’ personal preferences, but on the existing consensus among the member States on any given issue. Considering this from a dialogical approach, the author proposes to consider consensus as a form of dialogue that flows from Member States to the Court on the question of what they believe should be the proper settlement of convention rights. The analysis of the application of the evolutionary method’s interpretation by other international courts is carried out, thus proving that the evolutionary interpretation is not merely a figment of the Strasbourg Court’s imagination and nor is it the result of judicial activism, but instead it is the consequence of today’s necessity. The author emphasises that a static understanding of rights and freedoms cannot guarantee the effectiveness of any system of international justice. The textual interpretation of the Convention is blind to contemporary developments and unjustifiably ignores the changed nature of human rights in the twenty-first century. On a practical level, it is likely that politically sensitive decisions will continue to provoke internal criticism. In the final part of the article, the author draws an analogy with Proust’s In Search of Lost Time, noting that the evolutionary interpretation is a kind of formula for the search for time, which simultaneously combines both the past and the present, and is a necessary formula for maintaining the effectiveness and relevance of the conventional system.

CONCEPT OF A COURT OR TRIBUNAL UNDER THE REFERENCE FOR A PRELIMINARY RULING: THE COURT OF JUSTICE OF THE EUROPEAN UNION PRACTICE

Elena Sorokina

The aim of the present article is to analyse the concept of a “court or tribunal” and its meaning within the preliminary ruling procedure of Article 267 of the Treaty on the Functioning of the European Union. The extensive case law of the Court of Justice of the European Union confirms the need for such analyse. The concept of a “court or tribunal” is one of EU law. There is no abstract definition of a “court or tribunal” in the Treaties and other EU legal acts. Also the Court of Justice has never clarified what a court or tribunal is under Article 267 TFEU. However, according to the Court of Justice’s practice a number of organizational and functional criteria are relevant for determining when a national body can make a preliminary reference. The Court of Justice does not focus on the nomes iuris of a body or its status in the national judicial system. In addition, the Court of Justice examines whether the body making the request for a preliminary ruling is a court or tribunal of a particular EU member state. It is also clear from the Court of Justice’s case law that not all of the different criteria have to be unconditionally met in order for a body to qualify as a court or tribunal that may refer preliminary questions and that some carry considerable more weight than others. It is possible to find a number of the Court of Justice decisions which may qualify in some respect too flexible and insufficiently consistent, with a lack of legal certainty, when requests for a preliminary ruling are declared admissible despite jurisdictional status of national bodies are being questionable. Still, such practice of the Court of Justice and flexibility approach take into account the changes occurring at national level and to be able to develop its case-law abreast of those changes. However, the opposite tendency emerges and the Court of Justice taking a more restrictive position than in previous pronouncements. The Court of Justice pays increasing attention to the criterion of independence when national body’s make a preliminary reference. Such an approach allows a further consistent development of case law specifying both the scope of application and the content of the criterion of independence by the Court of Justice and contributes to optimising the mechanism of cooperation in the preliminary ruling procedure.

JUS COMMUNE

UNTAPPING THE POTENTIAL OF PREFERENTIAL TRADE AGREEMENTS TO PROMOTE FOREST PROTECTION: A COMPARISON ON FOREST-RELATED PROVISIONS AND THEIR ENFORCEMENT IN THE US AND EU PTAS

Yilly Vanessa Pacheco

The EU and the US are the actors with the highest number of environmental provisions in their Preferential Trade Agreements. Since 1999, specific rules on forest governance and Sustainable Forest Management have been incorporated in their PTAs. The implementation of such forest-related provisions in PTAs is mostly linked to cooperation among the Parties. However, in cases of noncompliance, PTAs provide for bilateral consultations, the application of the general dispute settlement mechanism, and even trade sanctions. The enforcement approaches differ in the US and the EU PTAs. This study focuses on the question of the potential of PTAs to contribute to forest governance and SFM and analyses the disputes that arose so far. It shows how forest issues may play a key role in negotiating and implementing PTAs, promoting compliance of Multilateral Environmental Agreements, and promoting public participation in environmental matters. The paper concludes that PTAs provide further options to develop and implement International Forest Law beyond the Multilateral Environmental Agreements.

JUS HOMINUM

FREEDOM OF EXPRESSION AND RESPECT FOR PRIVATE LIFE IN THE CONTEXT OF THE DEVELOPMENT OF NEW INFORMATION TECHNOLOGIES: JUDICIAL PRACTICE OF THE ECHR AND NATIONAL COURTS

Iliya Shablinsky

This article examines and summarises judicial practice in cases related to the use of new information technologies. The study primarily focuses upon the decisions of Russian courts (general jurisdiction and arbitration) and the European Court of Human Rights (ECHR). Employing ECHR practice, the author also refers to numerous decisions by courts in Hungary and the United Kingdom. Cases related to the use of new information technologies can be distinguished between, and this article examines the judicial practice of three categories of cases: 1) blocking of internet resources; 2) employers’ control over employees’ electronic correspondence; 3) journalists’ use of hyperlinks in author’s texts and their responsibility of such placements. Within each category of cases, the rights of citizens can be seriously violated. The article highlights that in an era of rapid development of new information technologies, states, represented by special services and authorised state bodies, are making unprecedented efforts to ensure that they maintain at least partial control over the activities of new actors (bloggers, Internet media, Internet platforms, etc.). Similarly, courts often compromise with authorities when resolving such issues. Notably, national Russian courts did not consider parties’ interests, nor did they assess the need to block all sites with a particular IP address. They did not even follow the Supreme Court of the Russian Federation’s decision to apply the requirements of the European Convention on Human Rights within the framework of the ECHR. The courts limited themselves to pointing out that Roskomnadzor acted within its power. Thus, the decisions of the national courts did not offer a mechanism for protecting rights. Within the norms regulating the new sphere of relations, there are often norms of a restrictive and prohibitive nature, and these norms are dominant in the Russian Federation. In this regard, there remains grounds for concern among lawyers involved in the protection of rights related to new information technologies.

JUS GENTIUM

COMPULSORY JURISDICTION UNDER THE LAW OF THE SEA CONVENTION: ITS ACHIEVEMENTS AND LIMITS

Mariko Kawano

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a special regime for the settlement of international disputes concerning its interpretation or application. Thanks to the mechanism of the enhanced compulsory jurisdiction provided by Section 2, various cases have been referred to the court or tribunals. Accumulation of the precedents has contributed to the clarification of the interpretation and application of the provisions relevant to the functions of the compulsory jurisdiction of international court and tribunals. This article examines the achievements and limits of the dispute settlement mechanism of Part XV. As far as the choice of the procedures in accordance with Article 287 is concerned, it is possible to say that the choice made by State Parties is respected as much as possible. Article 286 sets out the following requirements for a State Party to resort to the compulsory jurisdiction under Section 2: existence of a dispute concerning the interpretation or application of the UNCLOS; no settlement has been reached by recourse to Section 1; subject to the limitations and optional exceptions in accordance with Section 3. With regard to the first requirement, the ITLOS and arbitral tribunals have examined the subject-matter of the dispute before them and have tried to identify those concerning the interpretation or application of the UNCLOS. It is possible to say that examining the second requirement, the ITLOS and arbitral tribunals have emphasized the sound function of the compulsory dispute settlement mechanism under Section 2. As the third requirement relates to the scope of the compulsory jurisdiction of the court and tribunals, the ITLOS and arbitral tribunals have strictly interpreted the terms of Articles 297 and 298. Their Strict interpretation have allowed the Applicant to resort to the compulsory dispute settlement under Section 2. It is also necessary to note the strategic use of Article 300 in the arguments concerning the breach of the obligations under the UNCLOS in various precedents.

JUS MERCATORIA

INTERNATIONAL ARBITRATION AS A MEANS TO PROTECT HUMAN RIGHTS: ANALYSIS OF THE HAGUE RULES ON BUSINESS AND HUMAN RIGHTS ARBITRATION

Irina Artamonova

This article analyses the Hague Rules on Business and Human Rights Arbitration that were published in December 2019. The Hague Rules state how arbitration proceedings should resolve disputes arising from the influence of commercial activity in general on human rights. The purpose of the article is to assess the efficiency of the Hague Rules in settling such disputes by examining their features. The first part of the article studies the possibility of referring human rights disputes to international arbitration. In particular, the author examines the current practice of international investment tribunals and specifies the following situations where arbitrators deal with issues of human rights violations: to accept jurisdiction over counterclaims by host states against foreign investors; to interpret and provide guidance for establishing international investment law standards; to reasonably reduce the amount of compensation awarded to foreign investors in the event of violation by the host state. The author also emphasises that the application of the Hague Rules will enable tribunals to fully exercise their jurisdiction over human rights disputes and to examine such disputes on their merits. Having established the general possibility of referring human rights disputes to international arbitration, the author proceeds by analysing certain features of the Hague Rules, and then considering provisions on the importance of collaborative settlement mechanisms, special requirements to arbitrators, culturally appropriate arbitration proceedings, the possibility of bringing multiparty claims, enhanced requirements to the transparency of the arbitration proceedings and other issues. Finally, the author delves into certain challenges that may impede the practical application of the Hague Rules. In particular, such challenges may include: the fact that the Hague Rules do not solve the problem of the companies’ lack of obligations to protect human rights; the problem of enforcing awards taken in accordance with the Hague Rules; the hindered access of individuals to arbitration proceedings. Despite the above challenges, the author concludes that the Hague Rules may become a rather powerful instrument as an additional mechanism to resolve human rights disputes.

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