This editorial draws readers’ attention to four high-profile cases, decided by the European Court of Human Rights in 2011. The author argues that, although these decisions have raised different aspects of human rights protection, they have one thing in common, namely the issue of limits imposed on the use of the power exercised by the state.
The comment analyses the judgment of the European Court of Human Rights rendered in the case of Al-Skeini and Others v. United Kingdom that has changed the Court’s approach to the jurisdictional ambit. The change the European Court introduced is the transition from a mainly spatially driven test to an increasing focus on authority and control exercised by state agents over individuals. The author concludes that this new test is certainly more comprehensive than the previous one, but it is still not an all-inclusive one..
The case Al-Jedda v. United Kingdom has set the European Court several dilemmas. First and foremost, which subject – the state or international organization – is responsible for violations of human rights if these violations have been permitted during a military engagement, carried out by multinational forces and approved by United Nations Security Council. Secondly, there was a conflict between obligations of State under requirements of the Convention, on the one hand, and provisions of the Charter of the United Nations, on the other hand. European Court has answered both questions, and these answers allow the author conclude that henceforth judicial review of regional courts of Human Rights may influence on practice of UN Security Council.
The commented judgment concerned the presence of crucifixes in State-school classrooms in Italy. The European Court of Human Rights found that this practice did not violate the right of parents to ensure education and teaching in accordance with their own religious and philosophical convictions. The author of the comment analyses arguments put forward by judges of the European Court and discusses the Court’s interpretation of the principle of confessional neutrality and the role the doctrine of the margin of appreciation played.
In the commented decisions European Court of Human Rights declared applications lodged by the spokesman for Geneva Mosque and four organizations pursuing the aim of providing social and cultural development of Muslims residing in Switzerland inadmissible on the ground that they could not claim to be the “victims” of a violation of the Convention in relation to a constitutional prohibition on building minarets. The author notes that these decisions clarify not only a procedural question concerning the status of the victim of a violation of the Convention, but also shed some light on the Court’s approach to the interpretation of the scope of article 9 of the Convention.
The European Court of Human Rights ruled that the refusal of the Russian authorities to grant the applicant, an Uzbek national who had a family in Russia, a residence permit because he tested positive for HIV,was discriminatory because it was not an effective means to protect public health and economic interests of the country. The author of the comment analyses this judgment of the European Court where the issue of human rights protection afforded to HIV-positive persons in Russia has been considered for the first time, and argues that this decision imposes an obligation to take general measures on the Russian authorities.
Decision of Pretrial Chamber I of the International Criminal Court on “Prosecutor’s Application Pursuant to Article 58 as to Muammar Gaddafi, Saif Alislam Gaddafi and Abdullah Alsenussi” of 27 June 2011
The author of the comment carries out the multilateral analysis of the Libyan situation which was under the ICC jurisdiction after the UN Security Council’s referral of Libya to the ICC, under Resolution 1970(2011) and caused some practical and conceptual problems. Article reflects ongoing debates around the doctrine «responsibility to protect» (“R2P”) and implementation of the ICC preventive mandate, and fundamental principles of the ICC activity (universality, impartiality, non-selectivity, obligation to cooperation and complementarity, arrest warrant for Libyan leaders).
The Rules of the International Court of Justice envisage preliminary objections to the jurisdiction of the Court and to the admissibility of an application, as well as «other» preliminary objections. Preliminary objections to jurisdiction can be raised to contest the status of a party to the dispute as a party to the Statute or to a treaty as well as to contest the applicability of the «optional clause» or of a jurisdictional provision of a treaty. Even if the International Court of Justice has jurisdiction, it may, however, refuse to rule on a specific dispute on the grounds that the application or claims are inadmissible. Although not always easily discernible, the distinction between objections to jurisdiction and objections to admissibility is recognized in the practice of the Court. There are also «other objections» which are separate from these two categories of preliminary objections.
It is argued in the article that the supranational law may be effectively applied only if there is a close cooperation between a supranational and a national judge. But to achieve this aim both supranational and national judges must abide by a certain number of rules. These rules could be considered as an informal code of conduct. Its main elements are enumerated and analyzed by the author.
This article describes operation of the dispute resolution mechanism of the World Trade Organization from the moment when the dispute arises and parties enter into consultations and up to implementation of the Dispute Settlement Body recommendations. Roles and influence of various participants of the dispute settlement process including private parties are also considered.
The article reviews application of international humanitarian law by various international courts and tribunals, existing and potential conflicts in their jurisprudence, as well as possible ways of resolving issues related to the proliferation of international judicial institutions within the context of international humanitarian law.
The First Review Conference of the States Parties to the Rome Statute of the International Criminal Court (Uganda, June 2010) adopted a definition of the crime of aggression for the purpose of the Court (Article 8 bis of the Statute). It is submitted that, besides having to be compatible with the Charter of the United Nations, the new definition should also take account of existing national approaches towards defining the crime of aggression, for it can only be successful, if it gains acceptance, over time, by a majority of the States Parties to the Rome Statute. Obviously, States might be reluctant to recognise an international definition of the crime of aggression, if it turns out to be not essentially compatible with their respective views of the elements of the crime, which are manifested in their relevant national laws. This article provides an overview of selected national provisions on the crime of aggression and analyses the degree of their compatibility with the Rome Statute’s Article 8 bis.
Court of the Eurasian Economic Community and the Customs Union
Juridical aspects of organization and activity of the courts of justice of two integration organizations are discussed in the article. It is submitted, that they are a follow-up of the existing Economic Court of Justice of the CIS; the prospects are connected with the fact that their authors do not understand fully that an international court is an independent international organization.
Wolfgang Schomburg began his career as public prosecutor in West Berlin in the 70s of the XX century, then was a judge of the federal Supreme Court of Germany and International Criminal Tribunals for the former Yugoslavia and Rwanda. A specialist in international criminal law, professor Schomburg shares his views on the international criminal justice, and recollects his most memorable trials.
The material is coincided to the jubilee of Leonid Alekseevich Skotnikov, the Judge of the International Court of Justice, who turned 60 years old. He is the only Russian representative of the Hague international judicial community.
The article is dedicated to the outstanding legal scholar Antonio Cassese, who passed away in October 2011. Cassese was a professor of international law, a judge of the Special Tribunal for Lebanon, the author of numerous works in various areas of international law. The obituary highlights the most important landmarks of Cassese’ biography as scholar and practitioner.