INTER-AMERICAN COURT OF HUMAN RIGHTS PRACTICE REVIEW 2015
Oscar Parra Vera, Patricia Tarre Moser
The article focuses on the case-law of the Inter-American Court of Human Rights from 2015. Over this period, the Inter-American Court faced for the first time different issues. Furthermore, in 2015 the Inter-American Court dealt also which cases concerning the use of force in a non-international armed conflict, freedom of expression and democracy, indirect restriction of freedom of expression, sanitation and protection of the environment in indigenous territory, right of indigenous peoples to prior consultation, difference between enforced disappearance and extrajudicial killing, feminicide in Guatemala, among others. The article is not a detailed analysis of the cases issued in 2015, but a review of the new aspects of the case law issued last year.
YUKOS CASE: INVESTMENT ARBITRATION HAS TOO BROADLY INTERPRETED ITS JURISDICTION A REVIEW OF THE HAGUE DISTRICT COURT DECISION
On 20 April 2016, The Hague District Court set aside the $50 billion Yukos awards rendered against the Russian Federation in arbitration proceedings administered by the Permanent Court of Arbitration in The Hague. The Court reached its decision on the grounds that the arbitral tribunal lacked jurisdiction.
YUNUSOVA AND YUNUSOV V. AZERBAIJAN: WELL-KNOWN AZERBAIJANI HUMAN RIGHTS DEFENDERS WERE NOT PROVIDED WITH ADEQUATE MEDICAL CARE FOR SERIOUS HEALTH PROBLEMS DURING THEIR DETENTION
PRESS RELEASE ISSUED BY THE REGISTRAR OF THE EUROPEAN COURT OF HUMAN RIGHTS 186 (2016) OF 5 JUNE 2015
This text is the Russian translation of the ECtHR Registry press release on the Court’s Judgement in the case of Yunusova and Yunusov v. Azerbaijan (Application no. 59620/14 lodged with the Court on 29 August 2014. Judgment of 2 June 2016.). The case concerned the allegation by Mr Yunusov and Ms Yunusova, husband and wife and well-known human rights defenders and civil society activists, that their medical care in detention had been inadequate.
BIAO V. DENMARK: DANISH LEGISLATION ON FAMILY REUNION IS DISCRIMINATORY
PRESS RELEASE ISSUED BY THE REGISTRAR OF THE EUROPEAN COURT OF HUMAN RIGHTS 170 (2016) ON 24 MAY 2016
This text is the Russian translation of the ECtHR Registry press-release on the Court’s Judgement in the case Biao v. Denmark. The case dealt with the complaint by a naturalised Danish citizen of Togolese origin, Ousmane Biao, and his Ghanaian wife that they could not settle in Denmark. In the judicial review of the application of the 28-year citizenship rule to Mr Biao and his wife, the Danish Supreme Court had found that the discrimination at issue had been based solely on the length of citizenship and that the consequences could not be considered disproportionate for Mr Biao, who had only been a Danish citizen for two years when he was refused family reunion.
THE COMPARATIVE STUDY OF FUNCTIONING OF THE COURT OF THE EURASIAN ECONOMIC UNION
This article examines legal aspects of functioning of the Court of the Eurasian Economic Union (EAEU Court) in the course of comparative analysis of its main legal features with the same characteristics of other supranational judicial bodies – such as, for example, Economic Court of the Commonwealth of Independent States (CIS EC); the already non-existent Court of the Eurasian Economic Community (EurAsEC Court, 2012 to 2014) and the Court of Justice of the European Union (ECJ). Concluding the article, the author notes that the EAEU Court has a number of advantages over the CIS EC: for example, the EAEU Court is empowered to take binding decisions, while applications to the Court may submit not only member states but also economic and business entities.
IS IT POSSIBLE TO MAKE EXCEPTIONS TO THE EU SANCTIONS LIST?
In the nearest future the Court of Justice of the European Union will consider first cases of claims for delisting from the EU blacklists – applicants in these cases are Russian individuals and legal entities complaining of restrictive measures put against them. The most interesting and significant of these will be the case of Arkady Rotenberg who had fallen under the EU restrictions because of his close connections to the Russian President and because of his fortune, which was made solely in the latter’s tenure period. The article analyzes the arguments put forward by A. Rotenberg; the reasons of EU respective regulation; and in the light of similar cases of leading businessmen of Syria and Belarus estimates prospects of success in the ECJ.
THE PRINCIPLE OF INDIVISIBILITY OF HUMAN RIGHTS IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS
European Convention on Human Rights was designed as an international instrument for protection of political and civil rights, while social and economic rights were purposely left out of its scope. This article examines the possible philosophical justification of the integration of these rights into the Convention and sets out the analysis of the mechanism of integration of the new socio-economic rights, illustrated by the examples of the broad interpretation of the rights for freedom of association (Article 11) and the right to property (Article 1 of the Protocol 1 to ECHR). The paper sets out a more detailed analysis of social rights, integrated into the ECtHR as a result of broad interpretation of Articles 3 and 8.
ECONOMIC SANCTIONS AND CHALLENGE OF THESE IN THE WTO IN THE CONTEXT OF THE NATIONAL SECURITY EXCEPTIONS (GATT ARTICLE XXI:(B)(III))
The article is focused on interactive relationship between the international economic law and the sovereignty of States and their regulatory power. The author explores complex special cases of appealing economic sanctions and bringing them to dispute before the WTO. The success of the appeal depends on whether a government could bypass the national security exceptions set forth in Article XXI:(b)(iii) of the GATT.
ALLOWED, BUT IMPOSSIBLE: THE INTRODUCTION (CHAPEAU) OF ARTICLE XX OF THE GATT IN THE INTERPRETATION OF THE WTO DISPUTE SETTLEMENT BODY
The article analyses the provisions of the introduction (the Chapeau) to the GATT Article XX. The use of the “general exceptions” provided by GATT Article XX allows retreating from the established the General Agreement on Tariffs and Trade rules. And the introduction to the Article XX provides that if such measures are not used as a means of arbitrary or unjustifiable discrimination between countries or a disguised restriction on international trade, nothing in the GATT rules does prevent the adoption or enforcement by any contracting party of measures enshrined in the Article XX.
INVESTOR’S RIGHTS IN THE CONTEXT OF ECONOMIC SANCTIONS
The present article considers possibility of resort to international investment arbitration under bilateral and multilateral investment treaties in order to protect the rights of private parties against economic sanctions in the form of freezing of assets, with the focus on those imposed as a part of other economic and political measures against Russia. It reviews jurisdictional conditions of resort to investment arbitration, including definitions of investor (jurisdiction rationae personae) and investment (jurisdiction rationae materiae), as well as relevant standards of protection that can be invoked by a person under the sanctions.
THE OFFENCE OF GIVING FALSE TESTIMONY UNDER OATH IN INTERNATIONAL CRIMINAL LAW
The article considers the actus reus and mens rea of the offence of giving false testimony when under an obligation to tell the truth in international criminal law. It relies primarily on the relevant provisions of the Rules of Procedure and Evidence of the ICTY, ICTR, Special Court for Sierra Leone and Special Tribunal for Lebanon, as well as on article 70(1)(a) of the Rome Statute of the International Criminal Court. The article also surveys other areas of international law, such as the law of treaties, for the notions which may be indicative of a settled understanding of certain conduct comparable to false testimony, such as, for example, fraud in the conclusion of a treaty.
INTERNATIONAL PRINCIPLES OF THE INDEPENDENT JUDICIARY AN OUTLINE TO STUDY OF FAIR TRIAL STANDARDS IN THE CONTEXT OF JUDICIAL INDEPENDENCE
International principles of the judiciary were not born, as many people believe nowadays, in the postwar period. They are a product of a long development of the human civilization, and relevant judicial institutions were rooted deep in the Biblical era. The modern incarnation of these institutions and principles, on which they dwell, are now enshrined in the Universal Declaration of Human Rights of 1948, in the European and other regional human rights conventions, as well as in a number of other documents adopted by the global and national judicial communities.
THE BIBLE OF THE ROME STATUTE: THIRD EDITION
A BOOK REVIEW: THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY. O. TRIFFTERER, K. AMBOS (EDS.). 3RD ED. MÜNCHEN: C. H. BECK; OXFORD: HART; BADEN-BADEN: NOMOS, 2016. 2352 PP.
This Commentary on the Rome Statute of the International Criminal Court, the most comprehensive guide in the field of international criminal law first time published in 1999 and later twice re-edited by distinguished scholar and professor Otto Triffterer, has been since that time considered as the most significant scientific work on the treaty that established the new permanent system of international criminal justice. This book has been, and still is, encyclopedic companion among the existing literature in all heights and depths of analysis and its overall coverage of international criminal law following the Rome Statute.
INTERNATIONAL INVESTMENT LAW MEETS NEW CHALLENGE
A BOOK REVIEW: HINDELANG S., KRAJEWSKI M. (EDS.) SHIFTING PARADIGMS IN INTERNATIONAL INVESTMENT LAW. OXFORD: OXFORD UNIVERSITY PRESS, 2016.
This review examines a collection of articles by scholars and lawyers under the title “Changing paradigms in international investment law” (Oxford University Press, 2016), edited by Markus Krajewski and Steffen Hindelang. These articles describe the current problems of the theory and practice of international investment law.
HELP IN RUSSIA: FIRST YEAR ACHIEVMENTS