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CONTENTS
TRIBUNA
INTERNATIONAL JUSTICE ON A CROSSROADS: JUDICIAL DISCRETION AS A FORM OF POLITICAL POWER
One of the ideas shared by prevailing majority of the expert community is the conclusion about coming crisis of the legitimacy of international law. This conclusion is the understandable reaction to new regressive developments: the growing methodological challenge of legal relativism; obvious prevalence of the legal fragmentation over unification in the globalized world, degradation of international relations and legal communications. The international consensus formed after the World War II, which became the basis of human rights theory and practice, today seems to be expired, but a new one is still not achieved. A part of the problem is the decomposition of the whole system of international justice as a powerful, effective and neutral instrument of international conflict-solution and non-partisan mediator between different international actors. This results in a growing level of the legal uncertainty; open controversy between international, transnational and national courts over jurisdiction, influence and power; competing doctrines and interpretations of the international treatises and human rights, promotion of judicial activism as reaction to political power vacuum. All these developments make it important to pinpoint the changing place of judicial discretion and interpretation as a form and component of political power in relation to such key topics as methodology of legal interpretation, proportionality principle, European consensus, margin of appreciation, principle resistance, and their changing judicial treatment in a very complex political atmosphere of different global regions. That function of judicial activism in different areas of the world obviously plays compensatory role and fills in political power vacuum on international level, the absence of common understandings, rules and strategies of legal treatment, providing, thus, more disproportions to universal interpretation of the adopted international standards, while using political arguments dressed as law. This does not mean, of course, that international judicial interpretation is the same as political interpretation, but it makes it clear how necessary it is for important international players to reach a renovated consensus on the meaning of norms, their etymologic framework and methods of cognitive disputes solution. International courts are the most important institute in achieving this goal. This target-oriented approach, as author believes, demonstrates the acute importance of a new policy of law — coordinated judicial activity of international courts in search of the lost common sense of values, treatises and norms, capable to inspire renaissance of global constitutionalism ideal in legal diplomacy and international jurisprudence. Among important author’s conclusions is an idea of a need to form a new international consensus in order to create common legal agenda, which would be capable of giving new life to old principles. That underlines importance of a new program of the international legal politics, which is critical in order to establish a common target-oriented international justice.
PRAXIS
RES JUDICATA
INTERNATIONAL JUDGES’ MOVEMENT FOR THE INDEPENDENCE OF ARBITRATORS
AN OVERVIEW OF THE JUDGMENT OF THE EUROPEAN COURTOF HUMAN RIGHTS OF NOVEMBER 26, 2024 IN THE CASE OF NDI SOPOT S.A. V. NORTH MACEDONIA (APPLICATION NO. 6035/17)
The article, using the example of recent judgments s of the European Court of Human Rights, including in the case of NDI Sopot S.A. v. North Macedonia, analyzes the current practice of assessing attempts by some national courts to refuse recognition and enforcement of foreign arbitral awards in commercial and investment cases, including on the basis of the alleged impartiality of foreign arbitrators. Such attempts are being made today by the Russian Supreme Court, which is trying by any means to protect domestic business from foreign arbitration rulings. The author comes to the conclusion that such attempts, explained by the high goal of protecting domestic business and ensuring social justice, in the absence of reliable normative grounds for refusing to recognize a foreign decision, usually ignore not only the norms of international law, but also the actual circumstances of the case. It is noteworthy that at the same time, national judges themselves (as in the commented case at the ECHR) are not ready to follow the same rules of impartiality, the strict observance of which they demand from international arbitrators. Even timid hints of the ECHR’s readiness to support plaintiffs in such international cases attract interest of the legal community, however, as the analysis undertaken shows, there is still no talk of turning the Strasbourg Court into a faithful “defender” of arbitration. The ECtHR is not ready in such cases to consider the issue of the applicant’s actual losses, and often prefers to limit itself to symbolic compensation for moral damage only for procedural violations committed at the national level. Taking into account the fact that it is not yet possible to recognize the practice of different chambers of the ECtHR in such cases as uniform, it seems plausible that at a certain point the Grand Chamber will intervene and determine the standard of attitude of European judges to violations of the rights of investors to enforce arbitration decisions made in their favor (including international ones).
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA IN SEARCH RIGHT TO LIFE: THE ECO-TEST FINALLY PASSED
A COMMENTARY ON THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF JANUARY 30, 2025 IN THE CASE OF CANNAVACCIUOLO AND OTHERS V. ITALY (APPLICATIONS NOS. 51567/14, 39742/14, 74208/14, 21215/15)
The case in question concerns systematic and long-term environmental pollution in the Campania region of Italy, known as “Terra dei Fuochi” (“Land of Fires”), where illegal dumping and burning of hazardous waste has taken place for decades, leading to serious health consequences for the local population. The judgment in Cannavacciuolo and Others v. Italy, delivered by the European Court of Human Rights on 30 January 2025, represents an important precedent for the development of environmental human rights. It is the first judgment linking a violation of the right to life to long-term exposure to pollutants emitted into the environment. The decisive element for the applicability of the right to life was the change in the Court’s approach to the requirement of causation that gives rise to a violation of Article 2. Moreover, this is the Court’s first pilot-judgment procedure in an environmental case, which provides for the adoption by Italy of a whole range of measures to improve the state of the environment in Campania. The judgment in Cannavacciuolo and Others v. Italy should therefore be seen as a turning point for environmental justice.
SCRIPTORIUM
JUSTICIA
THE LIVES OF THE DOCTRINE OF PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW
Taxation is the most frequent and obvious intervention in the property of individual. Such an intervention may be accompanied by a deprivation of property and an infringement of other taxpayer’s rights: right to respect for one’s private and family life, one’s home, right to non-discrimination and others. Consequently, European Court of Human Rights in almost all of its tax cases has to respond to the same question: has the deprivation of possession been executed in the public interest, and has the balance between the protection of the public interest in securing the payment of taxes and applicant’s rights been upset. Such a weighing of different values is always a complicated task for the Court which has developed several tests applicable in almost all of the Court’s cases: firstly, the Court reviews lawfulness of the intervention while assessing not only the existence of the law applied but also its quality; secondly, the Court reviews whether the procedure was followed in the course of intervention; thirdly, it assesses the presence of the public interest and its materiality. With regard to the latter test, the Court established a rule that there is always a public interest assumed if a tax is established, and the states have a lot of discretion when it comes to deciding how to collect taxes. Obviously, the Court created rather effective tools to scrutinize state power, its ability to deprive people of their private property and assess the procedure of such a deprivation. For its part, the UN Human Rights Committee taxation jurisprudence is based on the two main articles: non-discrimination and a right to a fair trial, since the International Covenant on civil and political rights does not enshrine a guarantee to protect property rights. However, these legal grounds provide ample scope for the Committee’s involvement in reviewing tax enforcement practice. The author believes that approaches developed by the European Court of Human Rights and the UN Human Rights Committee should become determinant not only in the domestic tax agenda, but also in the de-velopment of international legal instruments in the framework of tax cooperation.
REGIONAL PEREMPTORY NORMS IN INTERNATIONAL LAW: MYTH OR REALITY
According to the common definition, a peremptory norm of general international law (jus cogens) is a norm that is accepted and recognized by the international community of states as a whole as a norm from which no deviation is permissible and which can be modified only by a subsequent norm of general international law of the same character. Modern legal scholarship and international courts recognize the existence of jus cogens in international law, but studies have noted the almost complete absence of its practical application. Moreover, the universalism that underpins the doctrine of jus cogens has lately been confronted with the challenges of the fragmentation of the international legal order and the formation of a multipolar world. States are increasingly uniting into geographical, linguistic, or cultural groups to implement joint projects, which inevitably influences international law that already includes specific norms protecting values recognised as fundamental at the regional level. The formation of regional legal orders will inevitably lead to the challenge of identifying and applying local norms of special legal force (local or particular peremptory norms of jus cogens) within these orders. These regional norms play an important role in identifying common and shareable fundamental values within a particular community of states, consolidating ideas and serving as a basis for cooperation among these states in solving certain social and political challenges they face. The widespread notion in academic discourse that regional jus cogens norms do not exist does not mean that regional legal orders are not entitled to independently declare the fundamental nature of a number of their norms, the contradiction with which makes other regional norms invalid. To ensure equality and differential approach, regional jus cogens should be seen as a concept intended for selective application. In this context, complex issues arise regarding possible interaction between universal and regional peremptory norms, whether in terms of prioritizing the former, treating the letter as lex specialis for the second norms, or allowing permissible exceptions to universal norms. This article, without purporting to address all possible issues, aims at identifying the problematics of regional jus cogens norms as part of the broader discussion on peremptory norms of international law.
FORUM INCOGNITA
SPECIALIST TRIBUNAL FOR KOSOVO — FORCED JUSTICE?
Both the theory of international criminal law and the juridical bodies applying its norms have been paying significant attention to the crimes committed during the bloody armed conflicts in the territory of the former Yugoslavia. The last conflict in Kosovo (1998–1999), unfortunately, has received limited focus within the activity and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia. The rare cases related to that conflict mostly ignored the numerous crimes committed against the Serbian population. At the same time, there were reports of crimes, including those committed by organized criminal groups, against the non-Albanian population of the province, among which were allegations of illegal trafficking in human organs. These reports had been initially made public by the former ICTY Prosecutor and were then investigated by the Council of Europe Special Rapporteur, who found them to be credible. Following prolonged preparatory efforts, Specialist Chambers and Specialist Prosecutor’s Office have been established. In the author’s view, the most adequate term to use referring to both “pillars” of this judicial institution simultaneously is “Specialised Tribunal”. Author believes that the creation of this “Specialist Tribunal” by the international community may be considered as an attempt to react to those allegations, objectively investigate them, identify the perpetrators, and bring them to justice. The article identifies the key issues related to the establishment and operation of the Tribunal and provides an overview of the six cases currently under its consideration. Analysing the process of its establishment, the author deems that Kosovo authorities were de facto forced to accept its establishment within Kosovo’s legal framework. The study relies on publicly available official records, including relevant materials of the Council of Europe and the European Union, electronic databases, judgments and decisions of the Kosovo Specialized Chambers. Based on quantitative assessment methods and comparative analysis of open statistics on the prosecution of international crimes in Kosovo, the author concludes that there is a certain “one-sidedness” in international and local justice, which favours Kosovo Albanian victims. The author’s leaves open the question of whether this Tribunal can somehow rectify this imbalance.
LEX MERCATORIA
THE UNNOTICED LEGACY OF THE YUKOS CASE: THE DILEMMA OF CHOOSING THE VALUATION DATE OF AN INVESTMENT IN INVESTMENT ARBITRATION
The mechanism for calculating compensation awarded to a foreign investor in disputes arising out of unlawful expropriation has become one of the most critical issues of modern investment arbitration. Despite the seemingly technical nature of the determination of the valuation date of an investment, it is the core element affecting the final amount of compensation. Until the mid-2000s, arbitral tribunals calculated the amount of compensation based on the date of the alleged violation by the State of the agreement on the protection of foreign investments and on the information available at that time. Any increase in the value of investments after expropriation seemed unlikely, and what usually happened was, on the contrary, a sharp decrease in the value of assets as a result of government actions. However, a different approach was soon developed in the academic literature and in practice according to which any increase in the value of investments that took place after the expropriation, but before the date of the award, should be taken into account by the arbitral tribunal when calculating the amount of compensation. According to the scholars, this rule follows from the well-known judgment of the Permanent Court of International Justice in the Chorzów Factory case, where it was stated that the amount of compensation should not necessarily be limited to the value of the property at the time of its seizure. This approach has been later developed due to the emergence of situations when the value of investments affected by government actions turned out to be significantly higher by the time of the arbitral award. An eloquent example is the Yukos case in which the date of the arbitral award rendered a decade later the actual expropriation, was chosen as the valuation date of investment. This method of determination of the valuation date of an investment has been criticized as distorting the meaning of the Chorzów Factory judgment and ignoring the absence of a causal relationship between the actions of the state to expropriate the investor’s property and fluctuations in world prices.
ACADEMIA
LIBRORUM
IMAGINATION AND THE INTERNATIONAL LAW
BOOK REVIEW:
BOHLANDER M. CONTACT WITH EXTRATERRESTRIAL INTELLIGENCE AND HUMAN LAW: THE APPLICABILITY OF RULES OF WAR AND HUMAN RIGHTS. LEIDEN : BRILL, 2023
TThis article is a review of the book, written by the German lawyer and international judge M.Bohlander, dedicated to the search for contacts with extraterrestrial civilizations. The author constructs a number of concepts with the help of which such research is given a legal dimension. In particular, this concerns the concept of “metalaw”, which is a certain set of norms and principles applicable in relations with artificial intelligence. The existing international legal regulation of this issue is clarified. Based on futurological works and science fiction, the author of the book tries to identify weak points in the existing regulatory framework, which hypothetically can become an insurmountable obstacle in the event of contact with aliens from other worlds or significantly damage it. The existing array of international human rights law and international humanitarian law is analyzed for the extent to which existing norms are designed for their application by other intelligent beings, besides humans. International crimes (crime of aggression, genocide) are also analyzed in terms of their possible reformatting in new conditions. Referring to sources of international space law, in particular the Declaration of Principles Relating to Actions Following the Detection of Extraterrestrial Intelligence of 1989 (as amended in 2010), approved by the International Astronautical Academy and the International Institute of Space Law, the author notes a number of provisions that oblige the parties that signed this Declaration not to respond to signals from outside without first receiving instructions and consent from the UN. However, in general, he comes to the conclusion that the existing international legal system is not ready to meet with representatives of extraterrestrial civilizations. The final point in the discussion about the direction in which international law, in particular international criminal law, should be developed is apparently a matter for the future, which will answer the questions outlined in the study under review.