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“Meždunarodnoe pravosudie” (International Justice) Journal

№1 (17) 2016

Contents # 1(17) 2016      

PRAXIS

Cristina Hoss                                                                                                                      

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”

DOI: 10.21128/2226-2059-2016-1-3-15

Abstract: 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”. It is argued that the Court’s case-law with regard to the notion of “interest of a legal nature” serves to illustrate that it can sometimes be preferable to refrain from determining a legal notion in order to retain a well-conceived flexibility, as intended by the authors of the Court’s Statute.

Keywords: judicial functions; dispute settlement v. law making; judicial restraint; intervention; interest of a legal nature; recent case-law; justifications for judicial restraint.

Citation: Khoss K. (2016) Kogda molchanie – zoloto: o dostoinstvakh sudebnogo ogranicheniya v svete praktiki Mezhdunarodnogo Suda v otnoshenii po­nyatiya “interes pravovogo kharaktera” [Hoss C. 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”]. Mezhdunarodnoe pravosudie, no.1, pp.3–15. (In Russian).

Cristina Hoss –  Ph.D. (Docteur en Droit), Paris 2; Legal Adviser at the Iran–U.S. Claims Tribunal (I.U.S.C.T.), The Hague; Visiting Lecturer at the Catholic University of Lille and Leiden University.

Anton Alatortsev                                                                                                                         

Article 7 of the European Convention on Human Rights and retrospective liability for genocide

DOI: 10.21128/2226-2059-2016-1-16-29

Abstract. 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. Taking into consideration the European Court of Human Rights interpretation of the foreseeability as feature of the law and inadmissibility of arbitrary limitations on the guarantee provided in the article 7 §1 of the European Convention on Human Rights the Court conclusion about inadmissibility of retrospective application of internal criminal law was supported. That conclusion seems to be correct due to gravity of genocide conviction and criminal penalty in general despite certain substantial arguments to the contrary.

Keywords: criminal law; nullum crimen sine lege; genocide; retrospective norms; ECtHR practice.

Citation: Alatortsev A. (2016) Stat'ya 7 Evropeyskoy Konventsii po pravam cheloveka i retrospektivnaya otvetstvennost' za geno­tsid [Article 7 of the European Convention on Human Rights and retrospective liability for genocide]. Mezhdunarodnoe pravosudie, no.1, pp.16–29. (In Russian).

Anton Alatortsev – Ph.D. student, Criminal Law and Criminology Studies, the Law Department at the Lomonosov Moscow State University.

 

EX OFFICIO

European Court of the Human Rights: Judgement in the case Fabian v. Hungary (application no. 78117/13) of 15 December 2015

Abstract. 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. The Court has declared the application admissible. After the hearings in this case the Court ruled that that there has been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. In the final part of its Judgement the Court has held that the respondent State (Hungary) is to pay the applicant, within three months an amount totalling EUR 18 thousand. Also the Court has dismissed the remainder of the applicant’s claim for just satisfaction. The original text of Judgement is available at: http://hudoc.echr.coe.int/eng?i=001-159210.

Keywords: European Court of the Human Rights; Fabian v. Hungary; Convention for the Protection of Human Rights; interference of rights; admissibility of application.

 

JUSTICIA

Sergey Punzhin                                                                                                               

Procedural law of the International Court of Justice: provisional measures (part 2)

DOI: 10.21128/2226-2059-2016-1-37-58

Abstract. 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. At the request of a party, the Court may revoke or modify any decision concerning provisional measures if such revocation or modification is justified by some change in the situation which was the basis for the indication of provisional measures.

Keywords: International Court of Justice; Statute of the Court; Rules of Court; procedural law; provisional measures; conditions for the indication of provisional measures; plausibility; irreparable prejudice; urgency.

Citation: Punzhin S. (2016) Protsessual'noe pravo Mezhdunarodnogo Suda OON: vremennye mery (chast' 2) [Procedural law of the International Court of Justice: provisional measures (part 2)].Mezhdunarodnoe pravosudie, no.1, pp.37–58.

Sergey Punzhin – Ph.D. (Law), First Secretary of the Court Registry, International Court of Justice.

 

JUS COMMUNE

Vera Rusinova                                                                                                                     

“Jurisdiction” and “imputation” in the ECtHR Decisions on the application of the Convention on the territory of unrecognized States: shake, but do not stir?

DOI: 10.21128/2226-2059-2016-1-59-69

Abstract. 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. Generally speaking, it seems that, guided by good intentions to prevent legal vacuum in the field of protection of human rights in the territories of the unrecognized entities, just because of the unnecessary mixing conventional concept of “jurisdiction” with the general concept of “attribution”, and also out of the reluctance to see the actual specifics of individual cases, the ECHR more and more moves away from the international responsibility laws, undermining thus its own effectiveness.

Keywords: European Court of Human Rights; unrecognized states; jurisdiction; attribution; international responsibility.

Citation: Rusinova V. (2016) “Yurisdiktsiya” i “vmenenie” v resheniyakh ESPCH, svyazannykh s primeneniem Konventsii na territorii nepriznannykh gosudarstv: vzboltat', no ne smeshivat'? [“Jurisdiction” and “imputation” in the ECtHR Decisions on the application of the Convention on the territory of unrecognized States: shake, but do not stir?]. Mezhdunarodnoye pravosudie, no.1, pp.59–69. (In Russian).

Vera Rusinova – Ph.D. (Law), LL.M. (Gottingen), Associate Professor in International and Private Law, Department of Law at National Research University Higher School of Economy, Moscow.

Marina Trunk-Fyodorova                                                                                                       

Transparency Principle in the Dispute Resolutions Chapters of the EU Free Trade Agreements in the WTO Practice Context

DOI: 10.21128/2226-2059-2016-1-70-80

Abstract. 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. The widening use of regional trade agreements witnessed within the last few years has also led to the parallel widening of dispute settlement mechanisms included into these agreements. Many of them use the WTO model as a basis and use rules additional enhance transparency earlier unknown in the WTO frameworks. Interesting examples of this innovative approaches are some of the recent European Union free trade agreements. The analysis of transparency provisions in the EU FTAs dispute settlement chapters presented in this article features new perspectives for international economic dispute resolution.

Keywords: international economic law; regional trade agreements; dispute resolution; World Trade Organisation; European Union; “Friends of the Court” (amici curiae); transparency.

Citation: Trunk-Fedorova M. (2016) Voprosy transparentnosti v polozheniyakh o razreshenii sporov soglasheniy o svobodnoy torgovle ES v kontekste praktiki VTO [Transparency Principle in the Dispute Resolutions Chapters of the EU Free Trade Agreements in the WTO Practice Context]. Mezhdunarodnoe pravosudie, no.1, pp.70–80. (In Russian).

Marina Trunk-Fyodorova – Ph.D. (Law), LL.M. (University of Connecticut), Associate Professor in the State and Administrative Law Department at St. Petersburg State University and in the Civil Procedure Department at Urals State Law University (Yekaterinburg).

Alexey Ispolinov                                                                                                                   

Judicial activism and judicial rule-making of the Court of Justice of the European Union

DOI: 10.21128/2226-2059-2016-1-81-94

Abstract. 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.

Keywords: European Court of Justice; judicial activism; judicial lawmaking.

Citation: Ispolinov A. (2016) Sudebnyy aktivizm i sudebnoe normotvorchestvo Suda Evropeyskogo Soyuza [Judicial activism and judicial rule-making of the Court of Justice of the European Union].Mezhdunarodnoye pravosudie, no.1, pp.81–94. (In Russian).

Alexey Ispolinov – Candidate of Sciences (Ph.D.) in Law, associate Professor, Head of the International Law Department of Moscow State University.

 

Kirill Entin                                                                                                                           

Autonomous restrictive measures against third countries in the case-law of the European Union Court of Justice

DOI: 10.21128/2226-2059-2016-1-95-103

Abstract. 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. Finally, the article explores the issues that are more characteristic to the third counties’ sanction regimes. First, the judicial control of whether the listing of specific persons is justified in regard to the listing criteria established by the Council, particularly within the notion of “rulers and individuals associated with them”. And, second, the most recent trend demonstrated by the Court is controlling the determine these criteria in accord with their compatibility with the principles of legal certainty and with respect to fundamental human rights. This new trend seems to be particularly important in the context of sanctions against Russia resulted from Ukrainian crisis.

Keywords: restrictive measures; sanctions; Court of Justice of the European Union (CJEU); sanction regime; sanctions imposing procedure; Common Foreign and Security Policy; Lisbon Treaty.

Citation: Entin K. (2016) Ogranichitel’nye mery protiv tret’ikh stran v praktike Suda Evropeyskogo Soyuza [Autonomous restrictive measures against third countries in the case-law of the European Union Court of Justice]. Mezhdunarodnoye pravosudie, no.1, pp.95–103.

Kirill Entin – Ph.D., Counsellor, Court of the Eurasian Economic Union; Research fellow, Centre for Comprehensive European and International Studies of the Higher School of Economics (Moscow).

 

LEX MERCATORIA

Sergey Usoskin                                                                                                                   

Agreements on promotion and protection of investments, national laws, “clean hands” doctrine and other things

DOI: 10.21128/2226-2059-2016-1-104-112

Abstract. 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. Violation of the most fundamental and generally recognized rules of national law, such as corruption or involvement in other criminal activities, may make the claim inadmissible. Practice of investment treaty tribunals after the YUKOS case demonstrates that arbitrators recognize applicability of the ‘clean hands’ doctrine.

Keywords: bilateral investment treaties; promotion and protection of investments; investment arbitration; illegal investments; YUKOS cases; ‘clean hands’ doctrine.

Citation: Usoskin S. (2016) Soglasheniya o pooshchrenii i zashchite investitsiy i natsional'noe zakonodatelstvo: o chistykh rukakh i ne tol'ko [Agreements on promotion and protection of investments, national laws, “clean hands” doctrine and other things]. Mezhdunarodnoe pravosudie, no.1, pp.104–112. (In Russian).

Sergey Usoskin – Ph.D. Candidate, International Law Department at the Lomonosov Moscow State University Faculty of Laws; Attorney, Double Bridge Law.

Pavel Prokofiev                                                                                                                   

The enforcement of emergency arbitration decisions

DOI: 10.21128/2226-2059-2016-1-113-120

Abstract. 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. Author analyzes provisions of the New York Arbitration Convention 1958 in regard to the arbitrations’ provisionary measures. In particular, author reviews different approaches to judicial interpretation of Art.V [(1) lit.e] of The New York Arbitration Convention 1958, that prohibits to enforce arbitration decision, which “has not yet become binding”. The article exemplifies the existing legal tools in this sphere in various jurisdictions and examines judicial practice in Russian Fe­deration and other states connected with enforcing of interim measures and, in particular, enforcing of emergency arbitrator’s decisions.

Keywords: arbitration; emergency arbitration; interim measures; enforcement; arbitration courts; UNCITRAL Model Law on International Commercial Arbitration; arbitration award.

Citation: Prokofiev P. (2016) Problemy privedeniya v ispolnenie resheniy chresvy­chaynogo arbitrazha [The enforcement of emergency arbitration decisions]. Mezhdunarodnoe pravosudie, no.1, pp.113–120. (In Russian)

Pavel Prokofiev – Junior Associate with the EDAS Law Firm.

 

PERSONALIA

Liber Amicorum

Ian Forrester: the one-man band

Dean Spielmann                                                                                                          

Copyright and human rights

DOI: 10.21128/2226-2059-2016-1-122-134

Abstract. 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. Recent developments show that the question of victim status is relevant, but that, as to substance, the European Court of Human Rights mainly weighs in the balance freedom of expression against other rights and interests.

Keywords: freedom of expression; copyright; European Court of Human Rights; legal balancing exercise; conflicts between equally protected rights.

Citation: Shpil'man D. (2016) Avtorskie prava i prava cheloveka [Spielmann D. Copyright and the human rights]. Mezhdunarodnoe pravosudie, no.1, pp.122–134

Dean Spielmann – President of the European Court of Human Rights since 2012 and Judge since 2004. He has taught at universities in Luxembourg and France and is a certified member of the Grand Ducal Institute. Honorary Fellow of Fitzwilliam College, Cambridge; Honorary Professor of University College London; Honorary Bencher of Gray’s Inn, London; Doctor honoris causa of the State University of Yerevan, of the University Babeş-Bolyai of Cluj-Napoca and the University of Bucharest.


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