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ON RECENT APPROACHES OF THE INTERNATIONAL COURT OF JUSTICE TO PRESUMPTIONS AND THE BURDEN OF PROOF: A COMMENT ON THE JUDGEMENT IN ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATIC REPUBLIC OF THE CONGO V. UGANDA) (9 FEBRUARY 2022)
This article constitutes a comment on the Judgement of the International Court of Justice in the case Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (9 February 2022) regarding the amount of reparations to be paid by Uganda for the damage caused to the Democratic Republic of the Congo during the armed conflict 1998–2003 (“the Second Congo War”). In deciding the case, the Court grappled with the task of establishing the large amount of the facts of the case with very limited evidence available, making the Court’s approach to evidence of crucial importance. In the article, the author analyses the Court’s decision to establish the presumption of Uganda’s responsibility for the damage occurred in Ituri, an eastern province of Democratic Republic of the Congo, during its occupation by Uganda, and to shift the burden of proof to Uganda. The author proposes potential arguments for such an approach and provides a critical assessment of them. The most plausible argument – that Uganda excercised control over Ituri during the occupation – is not considered by the author to fully correspond to the prevailing practice of international courts and tribunals, in which the burden of proof is shifted only after determining the specific evidence under the opponent’s control and its important to the dispute. However, the Judgement does not specify which particular evidence was not accessible for the applicant on account of the occupation of Ituri and does not explain its significance to the case. The author concludes that, in such cases where there is a high degree of uncertainty about the facts, international courts and tribunals should take a more active role in fact-finding, including by requesting the necessary evidence from the parties. Likewise, courts’ conclusions about presumptions and shifting the burden of proof should be clearly articulated and justified in their decisions.
THE COURT OF THE EURASIAN ECONOMIC UNION: COMMENTARY ON THE ADVISORY OPINION OF NOVEMBER 22, 2022 IN CASE NO. CE-2-2/1-22 ON METHODS OF PROVIDING GUARANTEES IN PUBLIC PROCUREMENT
The Eurasian Economic Union Court issued an advisory opinion in November, 2022, on an application from the Eurasian Economic Commission for clarification of certain provisions of para. 18 of the Protocol on the Procedure for Regulating Procurement, which is Annex 25 to the Eurasian Economic Union Treaty. The question put forward by the applicant was whether Member States had an obligation to implement in their national legislation the types of tender security listed in these para. 18 provisions: a bank guarantee and a monetary contribution guarantee. The reason for the application was the absence of a unified position among Member States on this issue. An analysis of the domestic legislation of Member States showed that a bank guarantee was accepted in every one of them but this was not the case as to a monetary contribution guarantee. The Court in its advisory opinion came to the conclusion that where national legislation does not provide for one of the types of security provided by EAEU law, the corresponding legislation has to be brought into line with the law of the integration organization. Despite the specialized character of the advisory opinion’s subject-matter, its significance for case law lies in the methods of interpretation and types of legal argumentation used by the Court. The Court had recourse to literal, grammatical, and teleological interpretation, using the arguments of effet utile and a contrario. In the framework of the teleological interpretation one can follow the set of goals the Court took into account: the universal goal of integration; its realization in the development of national economies and in the increase of their competitiveness; the creation of a common market; and the goal of creating a separate regulatory field, which in this case was public procurement. The author argues that the EAEU Court’s case-law demonstrates the evolution of interpretation methods and the types of legal argumentation used by the Court. She formulates the opinion that the logic of interpretation and legal argumentation used in this advisory opinion can serve as a model for future judicial ruling.
MOST-FAVORED-NATION TREATMENT IN INVESTMENT ARBITRATION: IS IT POSSIBLE TO USE THE GATS?
COMMENTARY ON THE ICSID DECISION IN MENZIES MIDDLE EAST AND AFRICA S.A. AND AVIATION HANDLING SERVICES INTERNATIONAL LTD. V. REPUBLIC OF SENEGAL
The question whether it is possible to apply the provisions of most-favored-nation treatment to investor-State dispute settlement has been a topical issue for a number of years. The practice of international investment tribunals does not give an unequivocal answer as to whether dispute settlement provisions which are more favourable from the investor’s viewpoint may be imported from other international investment agreements made by the host State. For example, in Maffezini v. Spain the arbitral tribunal came to the conclusion that this was possible, whereas a number of other tribunals have not supported this approach. This question becomes even more complicated when a foreign investor tries to use not investment treaties but other international agreements which also regulate foreign investments and contain a most-favored-nation clause. Such an attempt was made in Menzies Middle East and Africa S.A. and Aviation Handling Services International Ltd. v. Republic of Senegal, which was brought to the International Centre for Settlement of Investment Disputes (ICSID). Although there was no investment agreement concluded between Senegal and investor’s home State, the claimant asserted that the ICSID tribunal was competent to hear the case because the possibility of ICSID arbitration was foreseen in Senegal’s treaties with third countries, and so Senegal’s consent could be extended to the dispute under consideration by means of the most-favored-national provision contained in Art.II of the General Agreement on Trade in Services. This article analyzes the arbitral award rendered in the Menzies case. It discusses weak points in the tribunal’s position while at the same time agreeing with its general conclusion.
The creation of general principles of European Union law is rightly considered to be one of the most important achievements of the Court of Justice of the EU and a significant contribution to the development of the EU legal order. The general principles of EU law perform a triple function by filling gaps in the law, interpreting secondary rules, and providing separate grounds of review of the legality of the acts of EU institutions and of EU Member States. Since 2016–2017 the Court of the EAEU has also started formulating general principles of Union law including, among others, the principles of proportionality, non bis in idem, and respect for the constitutional rights and freedoms of persons and citizens. The principle of legal certainty, in accordance with which the rules established in the framework of the EU must allow all interested persons to clearly understand the obligations imposed upon them, can reasonably be described as one of the most difficult and multifaceted general principles of EU law. An analysis of CJEU case law reveals that this principle has two main dimensions. The first one is the requirement of clarity of legal acts. However, the CJEU’s application of this requirement includes not only an appreciation of the contents of legal acts in order to reveal possible contradictions, but also regard for such formal attributes of a legal act as its publication and for an indication of its legal basis, i.e., the legal norm underlying the challenged act. The second dimension is a temporal one, determining, as a general rule, that a law may not have retroactive effect. Finally, legal certainty is also actively used by the CJEU as a means of argumentation. The principle of legal certainty has also been widely used in the case law of the EAEU Court and, before it, the Court of the Eurasian Economic Community in the field of customs law. The EAEU Court uses this principle to review whether Eurasian Economic Commission decisions are sufficiently clear and devoid of contradictions. In its turn the temporal aspect of the legal certainty principle has been used by the EAEU Court, in the Delrus II case, to formulate its approach to the time limit for execution of its judgments.
This article researches the right to strike’s position in the international labour standards system of the International Labour Organization. Discussion of the right to strike, which has been going on in the ILO since 2012 and also took place during the 110th Session of the International Labour Conference in 2022, makes it necessary to revisit the question of the place of this right in the standards system of the ILO. The objective of this work is to provide a detailed review of the application of the right to strike in ILO acts and documents at different stages of the organization’s activities and in the context of the development of international labour standards and supervisory mechanisms of the ILO. The article shows the historical dynamics of the formation and development of approaches to the right to strike in the ILO, drawing on official documents of the organization and its various bodies, including supervisory ones. The author’s sources include, inter alia, ILO documents which are little studied in the scientific literature.
The categories of reciprocity and international comity are well known and often mentioned in Russian judicial practice. However, an analysis of this practice shows that the Russian judicial community does not understand either the genesis, legal nature, or specifics of these concepts. In the minds of judges, “the principle of reciprocity originates from international comity”, although in reality it is exactly the opposite – the principle of reciprocity appeared in law much earlier than international comity and is its basis. Reciprocity and comity in Russian judicial acts are often considered as one principle, although they are different categories that have different legal natures and require different attitudes in their application. In many judicial acts, reciprocity and comity are characterized as universally recognized principles of international law, which seems to be erroneous. Reciprocity can be considered a universally recognized norm of international law, recognized at the universal level, but it is not highly imperative. Comity has a doctrinal origin and is mainly understood as an international custom but still may have legislative fixation. Russian judicial practice is characterized by understanding comity as an international custom. Reciprocity has a customary legal origin and currently is enshrined in international treaties and national legislation. In Russian judicial practice, the principle of reciprocity is applied as a norm of international custom. This approach is correct, but the courts do not distinguish between the concepts of “conflict”, “material” and “procedural” reciprocity, which leads to direct violations of Russian law. In this article, comparative-legal, historical-legal, dogmatic and formal-logical methods are used. In conclusion, the authors propose that an information letter be prepared by the Plenum of the Supreme Court of the Russian Federation, in which, with examples from judicial practice, the principles of reciprocity and international comity are explained, the possibilities and limits of their application are determined, and parameters are established showing compliance with these principles by the courts of other States.
THE STATUS OF THE CITY OF JERUSALEM UNDER INTERNATIONAL LAW: THE CRITICAL LEGAL ISSUE IN THE ARAB-ISRAELI CONFLICT
The issue of sovereignty over the City of Jerusalem remains one of the most acute controversies within the Arab-Israeli conflict. Although this topic has attracted considerable attention from Russian political scientists, historians, and experts in regional studies, it has received relatively little coverage in Russian legal doctrine. This article begins by summarizing all the basic approaches to the problem found in foreign scholarship. It makes a comparative analysis of the official stances of key stakeholders in the issue of title to Jerusalem, namely, Palestine, Israel, and United Nations organs, notably the Security Council. It reviews possible practical solutions to the problem, with due regard for the necessity of ensuring the interests of the ethno-political communities concerned, recognizing equality of rights and implementation of the right of peoples to self-determination. The case brought by Palestine before the International Court of Justice (ICJ) in 2018 about relocation of the United States Embassy to Jerusalem and a potential ICJ advisory opinion on Israel’s policy and actions in East Jerusalem and the West Bank are also assessed on the basis of the ICJ’s jurisprudence and the current political climate. In elucidating the issue of sovereignty over the disputed area, the author traces the history of the Holy City from the time of the last undisputed sovereign, the Ottoman Empire. For assessing the conduct of the parties asserting control over the area, the principle of inter-temporal law is applied. Having constructed the chain of relevant events, it is concluded that sovereignty over Jerusalem is still “in abeyance”, or suspended, for no party has yet filled the existing vacuum of sovereignty by lawful means. The territorial status of the Holy City remains to be determined through lengthy negotiations. In this regard, out of the several existing options, the approach of an Israeli-Palestinian condominium is deemed most preferable, for it leaves less room for further conflict. However, this solution, in the opinion of the author, should be coupled with some sort of provisional supervision by a supranational institution.
INTERNATIONAL INVESTMENT ARBITRATION UNDER SANCTION RESTRICTIONS AND POLITICAL TENSIONS: POSSIBLE DIRECTIONS FOR DEVELOPMENT
The creation of a universal institution for resolving investment disputes between States and investors is seen as less achievable in the context of a crisis of international relations and of a trend towards fragmentation of the world economy into geopolitical blocs with closed groups of participants and its division into allies and rivals. For this reason, many proposals for reforms of international investment arbitration discussed since 2017 by Working Group III of the United Nations Commission on International Trade Law can be expected to be revised. Insomuch as during a crisis the number of disputes tends to increase rather than decrease, and international dispute resolution forums become more popular due to severed connections to national legal systems and to restricted control by States, international investment arbitration does not lose its relevance. However, it can be assumed that under the influence of economic and political instability in the world, significant changes can be expected in international investment arbitration. This article is devoted to how the institution of resolving investment disputes between States and investors will be transformed. The article analyzes both the structural problems of international investment arbitration associated with the imperfection and shortcomings of this method of resolving disputes, and the context in which the institution exists (e.g., the introduction of unilateral economic measures against certain States, restrictions on access to justice for persons under sanctions, the trend of regionalization, and changes in the foreign policy of States). The author concludes that the success of one or another proposal to reform international arbitration will depend on how a particular proposal meets the national interests of each State. At the same time, it is expected that demand for Asian arbitration institutions will increase, since Asian States are less subject to sanctions, and that new arbitration institutions will be created within the framework of regional associations.