«International Justice»
Issue №1(17)

RES JUDICATA

WHEN LESS IS MORE: ON THE VIRTUES OF JUDICIAL RESTRAINT IN LIGHT OF THE COURT’S JURISPRUDENCE ON THE NOTION OF “INTEREST OF A LEGAL NATURE”
Cristina Hoss

The present article on the virtues of judicial restraint reviews the case-law of the International Court of Justice on intervention under Article 62 of the Statute and, in particular, on the requirement of the existence of an “interest of a legal nature” likely to be affected by a decision of the Court. The case law appears to confirm that the Court has been cautious in the past not to determine the exact content of such “interest of a legal nature” until recently, it decided in two cases that the interest has to be a “real and concrete claim based on law”. This definition was abandoned two months later in a different case, in which an “interest of a legal nature” was recognized in the absence of a “real and concrete claim”.

ARTICLE 7 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND RETROSPECTIVE LIABILITY FOR GENOCIDE
Anton Alatortsev

The article concerns the European Court of Human Rights legal opinion enshrined in the Judgment in case Vasiliauskas v. Lithuania. The Judgment is analyzed taking into consideration the Court case-law on the article 7 of the European Convention on Human Rights. The Court legal opinion that an offence must be clearly defined in the law is particularly noted. It is also noted that the requirement of the clear definition of an offence manifests itself into the concepts of accessibility and foreseeability of the law. Relevant case-law of international judicial bodies is also taken into consideration. In particular, the doubtfulness of opinion about possibility of genocide of the political groups is noted. Moreover, certain issues of the legal notion of partial destruction of protected group as the evidence of genocide intent are raised.

Ex officio

EUROPEAN COURT OF THE HUMAN RIGHTS: JUDGEMENT IN THE CASE FABIAN V. HUNGARY (APPLICATION NO. 78117/13) OF 15 DECEMBER 2015

This text presents the Russian translation of the ECHR Judgement of 15 December 2015 on the above mentioned lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Hungarian national, Mr Gyula Fabian, on 5 December 2013. The applicant complained under Article 1 of Protocol No. 1 and Article 14 of the Convention that the suspension of disbursement of his pension for the duration of his post‑retirement employment amounted to an unjustified and discriminatory interference with his property rights.

Justicia

PROCEDURAL LAW OF THE INTERNATIONAL COURT OF JUSTICE: PROVISIONAL MEASURES (PART 2)
Sergey Punzhin

Through the use of provisional measures the Court seeks to preserve rights contested in the main proceedings; it therefore must be satisfied that these rights are at least plausible. As provisional measures are indicated in order to preserve the rights of the parties, a link must exist between the requested measures and the rights which form the subject of the proceedings. Provisional measures may be indicated only if there is a risk of irreparable prejudice to the rights of the parties and if this risk is real and imminent. The Court also has the power to indicate provisional measures to prevent the aggravation or extension of a dispute whenever the circumstances so require and provided that it indicates measures to preserve specific rights.

JUS HOMINUM

“JURISDICTION” AND “IMPUTATION” IN THE ECTHR DECISIONS ON THE APPLICATION OF THE CONVENTION ON THE TERRITORY OF UNRECOGNIZED STATES: SHAKE, BUT DO NOT STIR?
Vera Rusinova

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.

Jus commune

TRANSPARENCY PRINCIPLE IN THE DISPUTE RESOLUTIONS CHAPTERS OF THE EU FREE TRADE AGREEMENTS IN THE WTO PRACTICE CONTEXT
Marina Trunk-Fyodorova

Transparency is nowadays one of the most debated topics in international economic law, including the sphere of international economic dispute resolution. This issue is under consideration both within the World Trade Organization and within the context of free trade agreement-making. The WTO Dispute Settlement Understanding (DSU) has a number of provisions on confidentiality, and the system of dispute resolution works usually according to these rules. In the recent WTO practice, however, certain steps have been done for enhancing the transparency in certain areas of the WTO dispute settlement framework: for example, although there are no provisions on amicus curiae briefs in the DSU, the WTO panels and the Appellate Body have found some solutions how to deal with such briefs in their practice. Another transparency issue is the possibility for general public to attend the hearings, which, in principle, is not provided in the DSU but which, nevertheless, has been the case in several disputes where parties agreed under certain conditions to a public procedure of the hearings.

JUDICIAL ACTIVISM AND JUDICIAL RULE-MAKING OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
Alexey Ispolinov

In the present article the author stipulates the preconditions for applications of the notion “judicial activism” to the activity of the Court of Justice of the European Union. The article reflects the origin of this notion which is intrinsically connected with the decisions of the US Court and then has been imported by academics for analysis of international courts and tribunals. The author argues that judicial activism of the CJEU was not only unavoidable for the period of legislative lethargy but remains to be one of the major characteristics of the contemporary activity of the CJEU. This fact could be explained be self-positioning of the CJEU as a Supreme Court of the Union.

AUTONOMOUS RESTRICTIVE MEASURES AGAINST THIRD COUNTRIES IN THE CASE-LAW OF THE EUROPEAN UNION COURT OF JUSTICE
Kirill Entin

The primary task of this article is identifying and discussing some of the legal problems which arise from autonomous restrictive measures under EU law, particularly in the context of measures adopted against third countries. The article explores the differences between various sanction regimes as well as the legal basis and procedures in betaking particular types of restrictive measures. The main part of the article is centered on the jurisdiction of the European Court of Justice with regards to the control of legality of restrictive measures imposed on individuals. It reviews the changes that occurred in this sphere after the Lisbon Treaty and analyses the case-law of the Court regarding the protection of fundamental rights – the rights for defense, property rights and proportionality of sanctions.

Lex mercatoria

AGREEMENTS ON PROMOTION AND PROTECTION OF INVESTMENTS, NATIONAL LAWS, “CLEAN HANDS” DOCTRINE AND OTHER THINGS
Sergey Usoskin

The article discusses the consequences of investor’s non-compliance with the host state’s laws for the applicability of the bilateral investment treaties as well as for the admissibility of the investor’s claims. The analysis begins by questioning whether an investment exists at all if the national law in the host state invalidates the underlying rights (contractual or not). The article suggests that the clause “in accordance with the law” sets out a criterion of a protected investment. Among all possible interpretations of this clause (ranging from requiring compliance with only the most fundamental provisions of the national law of the host state, or with the law specifically setting out regime for foreign investments, to compliance with every provision of national law, except the most insignificant ones), the latter proves to be the most appropriate. In any case, the criterion extends only to violations of national law that occur at the time of making an investment: subsequent violations do not deprive the investment of the protected status.

THE ENFORCEMENT OF EMERGENCY ARBITRATION DECISIONS
Pavel Prokofiev

The article defines and describes distinctive features and specific characteristics of emergency arbitration procedure in international commercial arbit­ration, and presents a short historical survey of development and application of emergency arbitration procedure. The author shows problems resulting from application of emergency arbitration procedure, particularly – necessity of ensuring of parties’ rights, retroactive application of arbitration rules that include emergency arbitration procedure, reasoning of emergency arbitrator’s decision. Author provides examples of arbitration disputes employing emergency arbitration procedure. The article focuses also on enforcement problems of emergency arbitrator’s decisions.

Liber Amicorum

COPYRIGHT AND HUMAN RIGHTS
Dean Spielmann

At first sight, it might seem that linking copyright to human rights is quite an artificial exercise. However, that would be but a superficial impression. Human rights do affect copyright and the opposite is also true. Copyright appears as a complex tool used to protect various interests. And as copyright protection also requires robust criminal and civil law remedies, the guarantees of a fair trial need to be respected. Moreover, the legal aspects of artistic freedom may well denote conflicts between equally protected rights. Limitation clauses in human rights provisions are often invoked to resolve such conflicts. But the outcome of the balancing exercise is not always easy to predict: considering and comparing of human rights against each other requires a very careful analysis of the values protected and involved. It is nearly impossible to predict the results of balancing of legitimate interests on the level of the judiciary. In this contribution the author attempts to examine the legal framework concerning copyright in the context of human rights and then focus on the Strasbourg case law.

International Justice • Issue№1(17)