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CONTENTS
PRAXIS
RES JUDICATA
THE INTERNATIONAL COURT OF JUSTICE AND THE PALESTINIAN QUESTION: A REVIEW OF THE 2025 ADVISORY OPINION
The review deals with the Advisory Opinion of the International Court of Justice of 22 October 2025 in the case concerning the obligations of Israel in relation to the presence and activities of the United Nations, other international organizations, and third States in and in relation to the Occupied Palestinian Territory. The instruments and institutions of international justice are increasingly becoming involved — not without their own participation — in the political confrontation of international actors. On the one hand, the Court did not allow the case to be excluded from consideration within advisory proceedings due to its political character as it was asserted by some participants; on the other hand, by disregarding the possible politico-legal consequences of its rhetoric and by going beyond the scope of the General Assembly’s request, it in several instances failed to refrain from indirectly assessing Israel’s conduct. Initiated for the third time by the United Nations General Assembly, the advisory proceedings concerning the Palestinian question, in addition to addressing traditional issues (certain aspects of the regime of occupation, the provision of humanitarian assistance, and the realization of the Palestinian people’s right to self-determination), enabled the Court to formulate several new observations: those regarding the obligations of the occupying power within the framework of humanitarian cooperation with the United Nations, and those regarding respect for the privileges and immunities of United Nations institutions and personnel, including in occupied territory. The Court’s assessment of Israel’s obligations as an occupying power was differentiated depending on the requirements of international humanitarian law and international human rights law. In the latter respect, the Court emphasized the direct applicability of both treaty and customary norms of international human rights law, even explicitly enumerating a number of guarantees constituting their content; moreover, the Court unequivocally confirmed the extraterritorial character of states’ human rights obligations under international human rights treaties. The Court also formulated Israel’s obligations to cooperate with the United Nations and its agencies in the humanitarian sphere in and in relation to the Palestinian territory. Given the complexity of the historical background and evolution of the Israeli-Palestinian conflict, as well as the multifaceted legal dimension thereof, the author confines the analysis to a formal-legal examination of the text of the Advisory Opinion and most significant observations of the judges, as set out in their separate opinions, dissenting opinions, and declarations. At the same time, the author approaches the rhetoric of the International Court of Justice from the perspective of critical legal studies, which emphasize the political character of legal phenomena and deny the possibility of an entirely neutral legal position.
THREE CLIMATE ADVISORY OPINIONS: SYSTEMIC INTEGRATION OF SYSTEMIC INTEGRATIONS IN INTERNATIONAL JUSTICE
This article examines the evolution of the concept of systemic integration, from its understanding in the process of developing the general rule of interpretation of international treaties to its contemporary interpretation in the context of the greening of contemporary international law. The author analyzes the specifics and methodology of applying the concept of systemic integration by the International Court of Justice, the International Tribunal for the Law of the Sea, and the Inter-American Court of Human Rights in their climate advisory opinions. The article’s methodological basis is represented by a synthesis of historical, doctrinal, comparative, functional, and contextual approaches to studying the specifics of applying the concept of systemic integration in the framework of the three aforementioned climate advisory opinions. The study begins with an examination of the origins of the concept in contemporary international law and its conceptualization within the framework of the report of the Study Group of the UN International Law Commission “Fragmentation of International Law: Difficulties Arising from the Diversification and Expanding Scope of International Law”. The author then turns to an analysis of the methodology of interpretation and application of the principle of systemic integration by the relevant international court in issuing each of the three advisory opinions, and also conducts a comparative analysis of them. This section of the article is especially focused on the context, functional, institutional, and legal frameworks for issuing advisory opinions and their impact on the development of approaches to the scope of the principle of systemic integration. In the final section of the article, the author conducts a prospective analysis of the material and comes to the conclusion that, in modern conditions, the concept of systemic integration bears increasing burden in the context of the processes of differentiation and integration in international law. The examined advisory opinions confirm the thesis outlined in the report on fragmentation that systemic integration is a “master key” that allows, firstly, to reduce the risks associated with the fragmentation of international law and the proliferation of international courts; secondly, to ensure the systemic nature of international law through a balanced impact both on the system as a whole and on its individual components, shaping the harmonious development of international legal regulation; and thirdly, to encourage, where necessary, the specialization of international legal regulation.
SCRIPTORIUM
JUSTITIA
MYTHS OF INSTANT INTERNATIONAL CUSTOM
In an article published in 1965, the British lawyer B. Cheng proposed the concept of instant custom, which was based on the assumption that opinio juris constitutes the only and sufficient element for identifying international customary law. The article argued that such opinio juris could be established by the adoption of literally a single resolution of the UN General Assembly, while the existence of relevant state practice would play only an auxiliary role in confirming opinio juris. Despite the passage of time since its publication, the article’s main theses remain both relevant and controversial. On the one hand, it continues to be widely cited and influential, serving as a catalyst for ongoing discussions on the formation of international customary law. On the other hand, because the article was published in a little-known journal at the time, the subsequent understanding of the concept of instant custom was largely shaped indirectly by the academic community and practitioners, through the retelling of its main ideas by other authors. This almost inevitably led to distortions of Cheng’s original theses and their reinterpretation according to the views and preferences of other scholars. The most common misconception of Cheng’s idea of instant custom is the notion that a very short period of practice — or even a single act by states — would suffice to establish a customary norm. The prevalence of this view ultimately led the International Law Commission to the categorical conclusion that such a phenomenon as an “instant custom” does not exist. Nevertheless, Cheng’s idea that General Assembly resolutions can both express the opinio juris of states and indicate the existence and content of relevant international customary law appeared unexpectedly appealing for the International Court of Justice, which, in the Nicaragua case, recognized that the existence and content of international customary law can, among other sources, be inferred from General Assembly resolutions. An attempt to reconcile the conflicting positions on this issue was made by the International Law Commission in its 2018 Conclusions on the Identification of International Customary Law Norms, where the Commission noted that such resolutions do not, by themselves, create an “immediately arising custom.”
OBLIGATIONS ERGA OMNES IN INTERNATIONAL LAW
Obligations erga omnes are an international legal concept that continues to provoke serious debate, despite having been long recognized. Recently, this category of obligations has again attracted significant attention, particularly in connection with events that have come within the purview of the UN International Court of Justice. The author identifies and examines the main issues arising in connection with obligations erga omnes, namely their definition, the legal consequences of their violation, and their distinction from other legal concepts — in particular, from jus cogens norms. Special attention is paid to the problem of identifying obligations that belong to this category. Thus, the author challenges the widespread approach according to which the defining criterion for recognizing an obligation as erga omnes is the special importance of the value it protects. This method is evaluative in nature, making it highly subjective and unsuitable as a reliable basis for legal qualification. As an alternative, an objective approach is proposed, based on the classical principles of interpreting international legal norms. According to this approach, the key factors for determining the nature of an obligation should be its wording, object and purpose, as well as the general context in which it exists. These debated aspects of obligations erga omnes are examined through the lens of the work of the UN International Law Commission and various doctrinal approaches, as well as the practice of international courts. The practice of the International Court of Justice is analysed to the greatest extent. Since recognising obligations erga omnes in its famous dictum in the Barcelona Traction decision, it has faced a significant number of applications from states other than injured ones. In this regard, issues such as the relationship between this category of applications and actio popularis, the connection between the breach of an obligation erga omnes with jus standi of the applicant states, and the influence of political motives on the initiation of proceedings are of particular interest.
JUS CRIMINALE
ARE THE FUNDAMENTAL PRINCIPLES OF CRIMINAL RESPONSIBILITY OF INDIVIDUALS GENERAL PRINCIPLES OF LAW?
PART 3: THE PRINCIPLE OF NULLUM POENA SINE LEGE (“NO PUNISHMENT WITHOUT LAW”)
The institution of individual criminal liability is defined by a set of principles that shape and clarify its substance at both the national and international levels. Among the most significant are nullum crimen sine lege (“no crime without a law reference”), non bis in idem (“no trial twice for the same offence”), and nullum poena sine lege (“no punishment without law”). While these principles are undeniably important, their one-sided idealization has led some scholars to conclude that they hold identical meaning across all legal systems. On that basis, they are sometimes regarded as “general principles of law” within the meaning of paragraph (c) of Article 38 of the Statute of the International Court of Justice. However, the way these principles are codified in the criminal laws of different states and in international law today does not fully support this view. In this article, scholarly attention is focused on the principle of nullum poena sine lege (“no punishment without law”), according to which a specific criminal penalty can be imposed only if it has been clearly defined, including in terms of its lower and upper limits, by legal norms for this crime before its commission. An analysis of the legal basis and codified formulations of this principle and its interpretations indicates that, at present, it retains an unconditional character only within national legal and judicial systems. In the context of international criminal justice, however, its application is significantly constrained by the absence of legal certainty regarding the types of punishment available and the scope of their possible limits. Since general principles of law must have identical content across legal systems, the article concludes that there are currently no grounds for recognizing the principle of nullum poena sine lege as a general principle of law within the meaning of paragraph (c) of Article 38 of the Statute of the International Court of Justice.
JUS HOMINUM
BETWEEN ATONEMENT AND HUMANITY: THE RIGHT TO HOPE IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
The concept of the “right to hope” allows prisoners, serving primarily life sentences, the right to hope for parole in the future. This article analyzes this right through the prism of non-legal views on “hope”, the practice of individual states, and case law of the European Court of Human Rights that have significantly influenced development of the concept. In examining the content of this right, the complexities associated with judges’ understanding of hope, as well as their interpretation of the right itself through “atonement” and a moral lens, are highlighted. Particular attention is given to a comparative analysis of the positions of the highest courts of the United States, Canada, and Germany, and the case law of the ECtHR. The authors notes the influence of the latter’s positions on the states, including non-European ones, regarding the recognition of prisoners’ right to hope. Unlike national courts, the ECtHR recognizes this right for all prisoners, regardless of age, the nature of the crimes committed, or other subjective criteria. Moreover, the ECtHR is willing to go further and, in some cases, equate a long prison term to “effectively life imprisonment” in terms of inhuman treatment. The effective implementation of the right to hope at the national level depends on the specific rules that prisoners must know and follow in order to be released on parole (in order to “be a good prisoner”). An analysis of the Inter-American Court of Human Rights’s case law emphasizes that, in the context of cases of enforced disappearances, the right to hope has, in a sense, been transformed into the “right to the truth” (the hope of relatives to know what happened to their loved ones). Since a clear formulation has not yet been found in either the ECtHR’s or national case law, both due to difficulties in defining the psychological aspect of this right and the ambiguity of the term “hope”, as well as due to an unsettled approach to the question of whether the absence of the right to hope constitutes inhuman or degrading treatment, the right to hope risks remaining in a state of conceptual and legal uncertainty. In conclusion, the article proposes several possible scenarios for the development of this right in the ECtHR’s case law, including, for example, the introduction of artificial intelligence to assess the degree of rehabilitation of convicted persons. With consistent development of the ECtHR’s case law, the right to hope could become an effective tool for reforming penitentiary systems toward greater humaneness and a focus on resocialization.
LEX MERCATORIA
THE LEGAL NATURE OF TAX MEASURES IN INVESTOR-STATE ARBITRATION
The key element of international investment agreements is the right granted to foreign investors to file claims in international investment arbitration against the host states in order to obtain compensation for the unlawful expropriation of investments, as well as for non-compliance with various regimes for their protection, primarily the standard for fair and equitable treatment of investments. Both expropriation and violations of investment regimes may be exercised by the host state through tax measures. However, notwithstanding the high frequency of investment disputes in this category, there is currently no clear understanding in the doctrine of international investment law of what tax measures are and what their legal nature is. Meanwhile, investment tribunals regularly encounter investment agreements that do not regulate the legal characteristics of tax measures. As a result, for decades arbitrators have been compelled to formulate an understanding of the legal essence of tax measures. This understanding often goes beyond the texts of international investment agreements on which the disputing parties base their claims and which lack the legal characteristics of tax measures. Based on research into a wide range of investment arbitration awards, international investment treaties, and scholarly literature, the author of the article identifies a set of autonomous characteristics of a tax measure and provides a scholarly definition thereof. According to the author, the tax measure represents the actions (or inaction) taken by a state in the form of adopting, amending or repealing tax laws, as well as applying them to target a certain foreign investor. Secondly, investment tribunals specifically stress that the reference to a fiscal measure (for example, a custom duty) as a tax in the domestic law of the respondent state does not automatically result in its recognition as such. Thirdly, tax measures possess the presumption of good faith, with the burden of rebuttal always falling on claimant investors. Finally, the tax measure is a purely legal category, which means that the severity of the economic consequences suffered by a foreign investor as a result of the application of the disputed measure has no impact on its classification as a tax measure or other action that violates an international investment agreement.
PERSONALIA
LIBER AMICORUM
INTERNATIONAL HUMAN RIGHTS LAW IN THE CONTEXT OF CONSTITUTIONAL ADJUDICATION (UPDATING THE ISSUES)
In the present article, the author resumes the discussion initiated by Professor T.G. Morshchakova, Doctor of Law, in her article “Doctrine background of implementing international standards of rights and freedoms by means of constitutional justice” (2008), dedicated to the place of international law principles and norms in the mechanism of constitutional justice. The introduction substantiates the urgent need to update this issue in light of the geopolitical and regulatory changes that have taken place over the last decade. The paper offers four plausible interpretations of which established categories of public international law may correspond to Article 15 (Part 4) of the Russian Constitution, which introduces the concept of “generally recognized principles and norms of international law” yet employs this terminology inconsistently in its other provisions. Simultaneously, the author presents his own view on the forms (and for what purposes) universal and regional international human rights treaties — including those not legally binding on the Russian Federation — may be utilized by the Constitutional Court of the Russian Federation. Particular attention is paid to the specific procedure and the exact date of the termination of Russia’s participation in the Council of Europe and the European Convention on Human Rights, as well as the resulting legal consequences for constitutional justice. Furthermore, the author suggests that Convention law may exert an inertial influence on Russian constitutional law through certain related judicial methods of interpreting fundamental rights, namely autonomous and evolutive interpretation. In conclusion, the author summarizes the study of these four interrelated issues of interaction between international and constitutional law and suggests promising directions for further research, specifically regarding the role of so-called “soft law” in constitutional judicial practice.