IJ № 1 (49) 2024

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Alexander Solntsev, Anastasia Otrashevskaya

International justice in the field of resolving climate disputes is only gaining strength. The UN human rights treaty bodies have issued three decisions, twelve cases are pending before the European Court of Human Rights, and three eminent international courts (the International Court of Justice, the International Tribunal for the Law of the Sea, and the Inter-American Court of Human Rights) are in the process of issuing advisory opinions on issues related to climate change. It is important to monitor and analyze each decision in order to understand the reasoning of the parties to the dispute and of the judges (or experts in the case of quasi-judicial bodies), the positive and negative aspects of the decision, and their legitimacy. This article examines the opinion of the UN Human Rights Committee in which the applicants, Australia’s indigenous peoples living in the Torres Strait Islands, argued that Australia had violated the provisions of the International Covenant on Civil and Political Rights by failing to take adequate measures for mitigation and adaptation to prevent the negative impacts of climate change on the applicants and the islands where they live. For the first time in the history of international law, the Human Rights Committee found that a State party had violated the rights of the applicants. This case is a pioneer in many respects. This decision marked the first time that an international quasi-judicial body found that a State had violated the provisions of an international human rights treaty (Articles 17 and 27 of the International Covenant on Civil and Political Rights) through inadequate climate adaptation and mitigation policies. For the first time, a State was held internationally responsible for greenhouse gas emissions under international human rights law and ordered to pay compensation to the complainants. It was also the first time that an international quasi-judicial body had found a State guilty of violating the cultural rights of indigenous peoples due to the adverse impacts of climate change.




Kirill Entin

The article analyzes the Eurasian Economic Union Court’s case law on the functioning of the Union’s internal market. It focuses on the Court’s advisory opinions of October 30, 2017, on the free movement of goods and of December 7, 2018, on professional athletes. In the first one the Court gave a positive answer to the question of whether Member States can introduce unilateral restrictions on the free movement of goods and fixed clear limits to the States’ discretion to do this. In the second one it defined the concept of “restriction” as applied to the field of labor migration and expressed its opinion regarding the possibility of exempting certain regulatory fields from the application of EAEU law on the unitary internal market. Based on an analysis of these two advisory opinions, the author concludes that the EAEU Court has de facto elaborated an algorithm for analyzing the conformity of certain State measures with Treaty provisions on free movement and describes the components of this analysis. The article also pays attention to a series of cases that deal with the internal market in an indirect manner. In the Kaliningrad transit case, the Court addressed the issue of a link between the actions of customs authorities and the exercise of the right to the free movement of goods. In a case on the declaration of cash, the Court tried to distinguish between situations that fall under Treaty provisions on the free movement of goods from those that do not. Because the EAEU Court frequently has recourse to case law of the Court of Justice of the European Union while drafting its judgments and advisory opinions, the author also analyses relevant CJEU and EAEU Court case law, noting a high number of similar features and decisions as well as some important differences. The latter are essentially due to the more cautious approach of the EAEU Court towards interpretation of EAEU Treaty provisions.


Ekaterina Diyachenko

Legal argumentation plays a key role in ensuring the effectiveness and relevance of case law. In an integration union the effect of a judicial act on its application by Member States and union bodies depends on the argumentation’s depth and persuasiveness. This is especially important for the Eurasian Economic Union Court’s advisory opinions, which, contrary to its judgments, only possess res interpretata. An overview of the EAEU Court’s case law demonstrates that in its judgments and advisory opinions the EAEU Court primarily uses common methods of argumentation derived from traditional methods of interpretation. It relies essentially on linguistic and systemic arguments, with little use of teleological arguments, argumentum a contrario, or effet utile. These linguistic arguments often form the rationale in support of legal positions that other integration courts formulate exclusively using arguments based on the aims of the founding treaty or the useful effect of the legal norm. The EAEU Court’s case law contains several examples of legal comparativism, which serve as predicates for the formulation of concepts that did not exist in EAEU law. This type of argumentation allows the establishment of autonomous legal notions, applicable exclusively in the process of interpretation of integration law. The study also shows instances of legal argumentation based on norms and principles of international law. In the early stages of its functioning the EAEU Court had a propensity for using argumentation based on judicial dialogue, with numerous references to the acts of other integration courts. An analysis of the EAEU Court’s judgments and advisory opinions allows the author to conclude that, with the accumulation of its case law, the EAEU Court focused more on its own legal findings, leading to an increased used of precedents. The role of precedent as a source for legal argumentation of the EAEU Court’s acts lies in the fact that it is aimed not only at strengthening the legal reasoning of the judgment in a specific case, but also at formulating the content of a legal norm which, in the Court’s interpretation, might become an instrument for solving future cases. Precedent ensures the consistency and predictability of case law as well as its continuity. Departure from precedent necessitates a detailed explanation which can take the form of reference to different factual circumstances or of elaboration of a new line of reasoning.


Olga Kadysheva

The growth in the number of international courts and the decisions rendered by them has moved issues of enforcement of those decisions from the category of speculative to the practical plane. The common juridical approach to these issues, according to which the enforcement of such decisions by states is simply implied by virtue of the principle of pacta sunt servanda, has not been acceptable in order to explain that all international courts, without exception, are to some extent faced with the problem of enforcement of their decisions. The analysis and generalization of the empirical material already accumulated, which has been facilitated by the openness and publicity of international justice, has resulted in the emergence of numerous studies on both the general issues of enforcement of international court decisions and the specifics of enforceability in relation to individual international courts (the International Court of Justice, the Court of Justice of the European Union, the WTO Dispute Settlement Body). The Court of the Eurasian Economic Union, which has also accumulated some experience in this regard during the first nine years of its activity, is no exception. At the same time, the ambiguous, in our opinion, approach of the EEU Court itself to the issues of legal consequences and enforcement of decisions has come into a certain contradiction with the position of the Constitutional Court of the Russian Federation, which also requires appropriate analysis and comprehension. The proposed in this article study of the mechanism of enforcement of decisions of the EEU Court, set forth in the Statute of the Court, as well as the approaches of the Court itself to these issues, is based on certain doctrinal postulates, which represent a needed foundation for analysis and allow a comprehensive approach to the consideration of the problems of legal consequences and proper enforcement of decisions of the EEU Court.


Ilya Lifshits, David Kitsmarishvili

Russian courts over the past few years have established a clear position on the legal role of the judgements of the Court of the Eurasian Economic Union (EAEU Court) declaring legal acts of the Eurasian Economic Commission (EEC, Commission) on the classification of goods inconsistent with the Treaty on the Eurasian Economic Union. Several reasons for rejecting the legal force of such judgements of the EAEU Court have been formulated, while some of such grounds originate from the Russian legal order and one originates from the legal order of the Eurasian Economic Union. The reason deriving from the international law which has become fatal for the legal fate of the judgements of the EAEU Court, was paragraph 102 of the Statute of the Court stipulating that the judgements of the EAEU Court cannot abrogate or change the law of the Union. Accordingly, all Russian courts, including the Supreme Court and the Constitutional Court, have reached a unanimous opinion on the continuing nature of the EEC legal acts despite the declaration of such acts as illegal by the EAEU Court. Thus, legal acts of public authority – the Eurasian Economic Commission – are legally effective on the territory of the Russian Federation, but there are no ordinary legal means to challenge such acts. Undoubtedly, such a situation is intolerable, since, in fact, it is a legal deadlock and, moreover, it infringes the right to judicial protection provided for by the Constitution of the Russian Federation. Based on the analysis of the practice of Russian courts, the authors conclude that remediation of this shortcoming of the legal system of the EAEU would allow Russian courts to admit legal role of the decisions of the EAEU Court. Russian procedural legislation, in particular, the provisions of the Arbitration Procedure Code on the possibility of case reconsideration on the base of the new circumstances – in case of revocation of the ruling of another body – can also be used in relation to legal acts of the Commission which were recognized as contradicting to the acts of a higher level, i.e. to the EAEU Treaty, to the Customs Code and to other treaties within the EAEU. Prior to amendments to the Statute of the EAEU, the way to remediate of this shortcoming could be the decision of the Supreme Eurasian Economic Council on the procedure for the enforcement of the EAEU Court judgements invalidating the legal acts of the EEC.



Sofia Pimenova

In this article the author examines the possibilities that have been opened up by the rise of state-to-state arbitration for the resolution of investment disputes. The author argues that state-to-state arbitration has been unjustifiably rarely used for the resolution of these disputes. This option for dispute resolution is provided by the majority of international investment agreements. An analysis of the usefulness of state-to-state arbitration rather than investor-state arbitration is especially relevant in view of the ongoing discussions within the UNCITRAL Working Group III: Investor-State Dispute Settlement Reform. More active use of state-to-state arbitration for the resolution of investment disputes would entail going “back to basics”, since the first bilateral investment agreements did not provide for investor-state arbitration. The latter mechanism of dispute resolution appeared later as an alternative to state-to-state arbitration. The specific reason for this was that it was up to the States to initiate proceedings by state-to-state arbitration. Such a situation did not favor the investor, who had to rely on the willingness of the State to conduct the proceedings on his behalf. In addition, the author notes that settlement of disputes by way of state-to-state arbitration prevents application of the rules of international treaties on the enforcement of arbitral awards (such as the New York Convention of 1958 and the Washington Convention of 1965). Nevertheless, even with such shortcomings, it seems that the States will begin to resort more actively to this mechanism of dispute resolution. As confirmation of this, the author refers to the arbitration proceedings initiated by Azerbaijan against Armenia in 2023 under the Energy Charter Treaty. Among the risks of the “revival” of state-to-state arbitration, however, is the likelihood of a conflict between the two mentioned dispute resolution mechanisms when they are used simultaneously within the framework of the same international treaty. Some scholars are inclined to believe that, in such situations, state-to-state arbitration is destructive and should not be applied at all. Others insist that the presence of two ways to resolve disputes provides opportunities for dialogue and gives States equal rights to foreign investors and greater control over the interpretation of investment treaties.



Vladislav Tolstykh

The legal regime of the Caspian Sea is sui generis: it does not assume the automatic application of either maritime law or “lake law”, especially since the latter does not contain a unified approach in terms of management or resource allocation. Its evolution thus depends on the goodwill of the riparian States. The regime is composite – its elements have been developed in different periods. Some are original, others gravitate towards existing models; some are enshrined in treaties, others in customs; some bind all littoral states, others only some of them; and some are precise, others need to be clarified and interpreted. This regime does not imply condominium, either with respect to the entire water area or to the former Soviet sector. It does not imply delimitation of the seabed along certain lines, except those established in bilateral agreements for the northern part. This regime is incomplete and contains gaps which can be explained by two reasons. The first is the weak legal tradition of the coastal states, i.e., their unwillingness (and inability) to be guided by international law and to use the procedures of dispute resolution. The second is the objective nature and complexity of the existing contradictions. This incompleteness prevents effective development of marine resources, negatively affects ecological conditions, and is the grounds for international conflicts and unilateral decisions. In recent years, the conflict potential of the region has increased significantly as a result of both regional and global political factors. The most difficult problem of the Caspian Sea regime is the delimitation of the seabed in its southern part. It can be resolved by applying approaches developed for maritime delimitation, such as the equidistance/relevant circumstances method. The result, involving a reasonable compromise between extreme claims, could very well satisfy the littoral states.



Alexey Nikitin

The Carbon Border Adjustment Mechanism established by the European Union in 2023 aims to equalize the burden of climate change mitigation measures taken by importers and domestic producers. Mechanism’s designers are confident that it will succeed without breaking the law of the World Trade Organization. The article shows that the overall design of the Mechanism does indeed fall under the article XX(g) exception of the General Agreement on Tariffs and Trade, allowing for trade measures to conserve an exhaustible natural resource. In this connection, the article argues for viewing carbon budget (or stable climate) as an exhaustible natural resource. Nonetheless, the Mechanism does not conform to the requirements of the chapeau of article XX of the Agreement, prohibiting unjustified discrimination when taking trade measures provisionally recognized under one of the paragraphs of this article. Based on the practice of the Dispute Settlement Body of the World Trade Organization, the article demonstrates that when taking such measures one must take into account comparable measures of the country of origin as well as comparable voluntary measures taken by foreign producers. It further highlights that among all comparable measures the Mechanism only recognizes emission trading systems and carbon taxes, but not other measures like environmental charges, technology standards and purchase of carbon credits. This gives rise to unjustifiable discrimination – contrary to the chapeau of article XX of the Agreement. However, the EU’s choice in favor of this design of the Mechanism was most likely forced given the alternatives available: either inaction with the consequence of undermining international climate cooperation or bearing an impossibly heavy administrative burden. The article concludes with the author reflecting on the possible sequence of recognition by the EU of various comparable measures taken by countries of origin and foreign producers and on events that might encourage it to do so.