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25.12.2015 A new issue of International Justice Journal №4 (16) 2015 is now available! Now you can order an article or issue of the journal on-line!

Contents # 4(16) 2015                                                                         

PRAXIS

RES JUDICATA

Elena Yurkina                                                                                                                                 
THE EUROPEAN COURT OF HUMAN RIGHTS` DECISION ON A NEW APPEAL IN CIVIL PROCEEDINGS - A NEW COURT LOOK AT OLD ISSUES?
Case Commentary on the Judgment of the ECHR Abramyan and Yakubovskiy v.Russia in respect to the exhaustion of domestic remedies.

After the reformation of the Russian Code of Civil Procedure in 2012, the European Court had to examine the new cassation procedure introduced by the reform as a remedy to be exhausted by the applicants before bringing their cases to the Court. In its decision in the case Abramyan and Yakubovskiye v. Russia the ECHR departed from its previous approach to some elements of case revision in Russian civil procedure. In this article the author analyses the reasons for this. The article also contains a historical overview of the requirement to exhaust domestic remedies and describes the reasons why this requirement appeared in the text of the European Convention. Also described are previous cases (Tumilovich v. RussiaDenisov v. Russia and Martynets v. Russia) in which the Court examined the procedure for civil case review in the third instance (supervisory review). The reasons for which the Court departed from its previous approach in Abramyan and Yakubovskiye - where it found that the amended review in the third instance (new cassation appeal) differs from the supervisory-review existing before the reform of 2012 - are analyzed in the article. Finally, the author describes some potential problems that may arise in the cassation procedure and become a reason for lodging a complaint with the European Court.

Key words: European Court of Human Rights; European Convention for the protection of human rights and fundamental freedoms; exhaustion of domestic remedies; Abramyan and Others; Abramyan and Yakubovskiye; cassation appeal; supervisory review; civil procedure.

Elena E. Yurkina - Candidate of Sciences[i] (PhD) in Law, Master Droits de l’Homme (Strasbourg University), PhD researcher at Lausanne University (e-mail: Elena.Yurkina@outlook.com).

Ilya Rachkov                                                                                                                        
DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE IN THE CASE REGARDING THE TEMPLE OF PREAH VIHEAR 
 

This article analyzes the resolution by the International Court of Justice of the long dispute between Cambodia and Thailand about ownership of the temple of Preah Vihear and areas in its vicinity. Uncertainty in this matter had resulted in armed clashes between the two States. The International Court of Justice addressed this dispute several times: in 1959 - 1962 and in 2011 - 2013. Under the Treaty of 1904, the boundary between then Siam (now Thailand) and French Indochina (now Cambodia) in the area of the temple of Preah Vihear in the Dângrêk Mountains tracked the watershed line. If we follow this line, the temple is situated on the Siamese side of the watershed. The delimitation of the boundary on the basis of this principle was entrusted to a mixed Franco-Siamese Commission. The Commission met for the last time in 1907 but never finished its work. However, Siam ordered French cartographers to make maps of the area. The maps were compiled and published in 1907 showing the border running north of the temple of Preah Vihear, thus leaving the temple in Cambodia. After receiving these maps, Thailand did not object to them and used them. Thus Thailand acquiesced to the correctness of the maps and by virtue of the principle of estoppel lost the right to challenge it, according to a decision by the International Court of Justice in 1962. Subsequently, the principle of estoppel has been repeatedly applied by the Court in other cases. In addition, the Court formulated rules on the invalidity of an international Treaty by virtue of error. In 1969 these rules were codified. Finally, in 2013, the ICJ gave an interpretation of its decision of 1962, as the debate about what land “near the Church” should be considered Cambodian never stopped. The interpretation of its own decisions is a tool rarely used by the Court. Unfortunately, the Court left unresolved the fate of Phnom Trap Mountain and the area around it.

Key words: sovereignty; International Court of Justice; state borders; international treaties; interpretation of treaties; error as a cause of invalidity of treaties; estoppel.

Ilya V. Rachkov – Associate Professor of the International Law Faculty of MGIMO (University), Candidate of Sciences* (PhD) in Law, LL.M (e-mail: IRachkov@KSLAW.com).

Oscar Parra Vera and Patricia Tarre Moser                                                                               
INTER-AMERICAN COURT OF HUMAN RIGHTS PRACTICE REVIEW 
June - December 2014

This review presents an advisory opinion and nine cases decided by the Inter-American Court of Human Rights in the second semester of 2014. The objective is to introduce some ideas to contextualize the contribution of inter-American jurisprudence on certain issues and their possible use in other regional systems for the protection of rights.  These issues include extra-judicial executions and the rights of non-legal immigrants - their children in particular - in conditions of detention.  The review focuses mainly in aspects of the decisions that represent a new interpretation of the American Convention on Human Rights.

Key words: International responsibility; use of force, extrajudicial executions; child migrants; non-discrimination; human rights defenders; sexual violence; subsidiarity; forced disappearance.

Oscar Parra Vera – MSc Candidate in Criminology and Criminal Justice, Oxford University. Former Junior (2007-2009) and Senior Attorney (2010-2015) at the Inter-American Court of Human Rights (e-mail: oscar.parra-vera@st-hildas.ox.ac.uk).

Patricia Tarre Moser – LL.M, associate at Inter-American Court of Human Rights, Intern at inter-American Commission on Human Rights (e-mail: patriciatarre@corteidh.or.cr).

 

SCRIPTORIUM

JUSTICIA

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

Power to indicate provisional measures to preserve the rights of parties to a dispute pending a court’s decision constitutes an integral part of the competence of international judicial bodies. The purpose of these provisional measures, which are binding, is to protect parties’ rights and to prevent actions that could prejudice the subject-matter of a dispute to such an extent that the eventual decision of the International Court of Justice, whatever its substance might be, would be deprived of meaning. Provisional measures may be indicated only if the Court has prima facie jurisdiction. A finding regarding the existence of such jurisdiction is not final and may be changed in a subsequent phase of the proceedings. Admissibility of claims on the merits is not considered to be a condition for the indicating of provisional measures and examination of this issue may be justified only if it is raised as an argument against the provisional measures themselves.

Key words: International Court of Justice; Statute of the Court; Rules of Court; procedural law; provisional measures; conditions for the indicating of provisional measures; prima facie jurisdiction; admissibility.

Sergey M. Punzhin - Legal Officer in the Registry, the International Court of Justice, Candidate of Sciences* (PhD) in Law (e-mail: s.punzhin@icj-cij.org).

Tatiana Neshataeva                                                                                                                           
THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND INTEGRATION OF INTEGRATIONS: OVERCOMING THE FRAGMENTATION OF INTERNATONAL LAW 

Fragmentation of international law, which occurs in the competition of international dispute settlement bodies, is now becoming especially noticeable. A remarkable example of overcoming such contradictions is found in the framework of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Ways of overcoming the fragmentation of international law in the practice of international courts is possible by means of “integration of integrations” –improvement of legal norms, mutual respect by courts, and willingness to cooperate.

Key words: Integration; competition of courts, fragmentation of the law; European Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights; Court of the Eurasian Economic Union.

Tatiana N. Neshataeva – Doctor of Law, Professor, Judge of the Court of the Eurasian Economic Union (e-mail: neshataeva@gmail.com).

 

JUS GENTIUM

Roman Kolodkin and Sergey Punzhin                                                                                      
CONTINENTAL SHELF BEOYND 200 MILES: DETERMINATION OF THE OUTER LIMITS AND DELIMITATION (PART II)

The rights of a coastal State over the continental shelf exist ipso facto and ab initio, by virtue of its sovereignty over the land territory to which it is adjacent. The existence of the continental shelf of a coastal State up to a distance of 200 nautical miles does not require any proof, however, the outer limits of the continental shelf beyond 200 nautical miles are established exclusively through the procedure provided for in Article 76 of the United Nations Convention on the Law of the Sea. This Article stipulates that recommendations of the Commission are a mandatory precondition which must be complied with for these limits to be legally valid. Both the State practice and the case law of international dispute resolution bodies examined in the present article demonstrate that the delimitation of the continental shelf beyond 200 nautical miles by an international court or arbitral tribunal is possible only if this delimitation does not prejudice the Commission’s functions nor ignore its role in the determination of the outer limits of such a continental shelf.

Key words: United Nations Convention on the Law of the Sea; extended continental shelf; Commission on the Limits of the Continental Shelf; international court or arbitral tribunal; jurisdiction; admissibility; delimitation of the extended continental shelf. ana N. Neshataeva – Doctor of Law, Professor, Judge of the Court of the Eurasian Economic Union (e-mail: neshataeva@gmail.com).

Roman A. Kolodkin – Member of the International Law Commission, Candidate of Sciences* (PhD) in Law (ilpp-ijj@mail.ru)
Sergey M. Punzhin – Senior Legal Officer, Registry, International Court of Justice (s.punzhin@icj-cij.org)

 

JUS HOMINUM

Roman Moroz                                                                                                                          
THE RULE OF EXHAUSTION OF DOMESTIC REMEDIES IN THE AFRICAN SYSTEM OF HUMAN RIGHTS PROTECTION

The practice of application and interpretation of the rule of exhaustion of local remedies by the African monitoring bodies in the field of human rights, in particular by the African Commission on Human and Peoples' Rights, not only complies with approaches elaborated by other international judicial and quasi-judicial human rights bodies, but also develops them to a considerable extent. Following other international institutions the monitoring bodies of the African human rights system have established that they cannot be regarded as courts of the first instance, the mechanism of international control is subsidiary with respect to national one, and the application of the requirement of exhaustion of internal procedures shall not be carried out using formal rules. At the same time, the African monitoring bodies in the area of human rights have significantly expanded a list of exceptions to the admissibility criterion under examination by including mass and gross human rights violations, indigent situation of applicants, as well as fear for applicants to be prosecuted while invoking internal procedures.

Key words: Domestic remedies; review bodies on human rights; admissibility criteria; African system of human rights protection; African Commission on Human and Peoples' Rights.

Roman S. Moroz – Master of law, D.U. Sciences Politiques et Etudes Européennes (Université Montesquieu – Bordeaux IV) (e-mail: raman.maroz@gmail.com).

Sergey Glandin                                                                                                                     
LEGAL GROUNDS FOR THE LIGTING OF RESTRICTIVE MEASURES (SANCTIONS) AGAINST INDIVIDUALS IN THE COURT OF THE EUROPEAN UNION

With effect from 30 July 2014 some Russian businessmen, who were not officials and did not have official or unofficial power to influence events in Ukraine, were made subject to Council Regulation (EU) No. 269/2014 concerning restrictive measures in respect of actions undermining the territorial integrity, sovereignty and independence of Ukraine. The effect of this Regulation is to impose asset freezing on all assets and the movement of funds within the EU, and a travel ban preventing these individuals from travelling within EU and England and/or appear in front of judge at any court proceedings in these countries. While U.S. law may allow such measures, it is argued that the Council of Europe exceeded its authority, justifying the voiding of these measures by E.U. judicial bodies.  In turn European law on restrictive measures continues to develop in taking into consideration the fundamental rights of the complainants, following E.U. members fulfilling their obligations under the U.N. Charter.  The author advances the discussion of the legal nature of so-called sanctions in E.U. law and suggests possible grounds for lifting these from Russian physical persons. 

Key words: restrictive measures, sanctions, European law, Rules of the Council of Europe, setting aside, Court of EU.

Sergey V. Glandin - Candidate of Sciences* (PhD) in Law, lecturer in the Diplomatic Academy of Russia (email: glandin@yandex.ru).

 

LEX MERCATORIA

Artur Gulasaryan                                                                                                                       
THE SETTLEMENT OF INTERNATIONAL INVESTMENT DISPUTES UNDER THE ENERGY CHARTER TREATY (ECT)

The article examines the issues of the settlement of international investment disputes under the Energy Charter Treaty. A brief introduction to the Treaty is given. The provisions of the Treaty, and primarily its Article 26, as well as the relevant practice of the fora constituted under the Treaty (International Centre for Settlement of Investment Disputes (ICSID); Arbitration Institute of the Stockholm Chamber of Commerce; Arbitration ad hoc under the UNCITRAL Arbitration Rules), related to the subject matter of the article, are analyzed. In particular, the advantages of the choice of each of the aforementioned arbitration fora by the parties to disputes, as well as the issues related to the their jurisdiction ratione materiaeratione lociratione personae and ratione temporis, are elucidated. Distinct attention is given to certain procedural issues: the conditions for submitting disputes to arbitration, applicable law, and rendering of arbitration awards. The important role of the Treaty as an instrument of investor-state dispute settlement in the energy sector is emphasized.

Key words: Energy Charter Treaty; investments; disputes; energy sector; jurisdiction; ICSID; Arbitration Institute of the Stockholm Chamber of Commerce; ad hoc arbitration; UNCITRAL Arbitration Rules; Permanent Court of Arbitration.

Artur S. Gulasaryan - Professor of the Kutafin Moscow State Law University, Candidate of Sciences* (PhD) in Law (e-mail: intlaw777@gmail.com).

 

PERSONALIA

PERSONA GRATA

Olga Chernishova
JUDGE, OPEN TO DIALOGUE                                                                                         
Interview with Dean Spielmann, Judge of the European Court of Human Rights elected in respect of Luxembourg (2004 - 2015), President of the European Court of Human Rights (2012-2015)

In this exclusive interview given soon after retirement, Judge Spielmann shares his opinion about the latest innovations in the work of the European Court of Human Rights, on the relationship between the Court and national supreme courts, as well as about the most difficult case in his practice.

Key words: European Court of Human Rights; European Convention for the Protection of Human Rights and Fundamental Freedoms; Protocol No. 15; Protocol No. 16 to the Convention.

Olga S. Chernishova - Registry of the European Court of Human Rights, Candidate of Sciences* (PhD) in Law (e-mail: ilpp-ijj@mail.ru).


[1] Candidate of Sciences

According to the International Standard Classification of Education (ISCED) 2011, Candidate of Sciences belongs to ISCED level 8 – “doctoral or equivalent”, together with PhD, DPhil, D.Lit, D.Sc, LL.D, Doctorate or similar.


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