IJ № 2 (42) 2022

Price 950 Rub.

CONTENTS

SCRIPTORIUM

JUS GENTIUM

STATE CONSENT TO ITS TREATY OBLIGATIONS: THE GAP BETWEEN INTERNATIONAL AND NATIONAL LAW

Mikhail Gal’perin, Evgeniy Bulatov

The article addresses the question of the nature and degree of relevance of national law provisions when a state expresses its consent to be bound by an international treaty. Although this problem goes back to the origins of constitutionalism, its relevance has been growing dynamically recently. In trying to protect their sovereignty, states have been cautious about the conditions and procedures governing the transfer of powers to the international level, especially in the most sensitive political, economic and financial spheres. The basic constitutional principles of separation of powers and democracy are expressed in the distribution of authority at the national level between various government bodies when concluding international treaties, and also are expressed in certain cases in the direct engagement of citizens. Article 46 of the Vienna Convention on the Law of Treaties attempts to strike a fair balance between state sovereignty and the security of treaties. However, in practice this provision has not been widely applied, for reasons including the restrictive interpretation. Providing extensive examples of national legislation (including that of Russia), the article demonstrates that the principles of public governance permeate the sphere of international relations of states and limit the sole authority of the executive branch to express the consent to be bound by an international treaty. Given this, an attempt has been made to prove that states, in their relations with one another, must take a higher standard of diligence than that in restrictive interpretations of Article 46 of the Vienna Convention when assessing the fulfillment by the other state of its requirements under domestic law for the expression of consent to be bound by an international treaty.

JUS HOMINUM

RIGHT TO TRUTH – A NEW HUMAN RIGHT?

Aleksandr Evseev

This article deals with theoretical and practical problems arising in connection with the recognition of a new human right — the right to truth. The genetic origin of this right is traced to violations of it that were widespread in Latin American countries in the 1970s and 1980s. As development of this right spread to the European continent, the right to truth grew from a local norm into a global procedural guarantee of the international legal status of the person, often supported by constitutional norms. This article emphasizes the need to ensure this right by an appropriate institutional structure of “transitional justice” – by so-called “truth commissions”, disclosure of archives, and legal examination of the facts of state terror as revealed through judicial proceedings. The significance of decisions recognizing the right to truth made by regional courts of human rights, primarily the Inter-American and European ones, is emphasized. The article focuses on the international legal nature of this right even though it is not yet possible to qualify it as a customary norm of international law. It concludes with a discussion of opportunities for scholarly research on this issue.

REMOVING BUT NOT LEAVING: THE RUSSIAN REALITY OF REMOVING A CHILD FROM ITS FAMILY AS SEEN THROUGH THE PRISM OF STANDARDS DEVELOPED IN THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Natal’ya Kravchuk

Withdrawal of a child from its family has been the object of scholars’ and practitioners’ attention for a long time. Russian legislation provides for two procedures for child protection that presuppose his/her separation from parents — the administrative removal of a child in a dangerous situation and the limitation of parental rights, decided by a court. These procedures are linked and, in cases of urgent removal of a child, the limitation and withdrawal of parental rights represents the next step in the process initiated by the child’s removal. As for the reasons for a child’s removal, while urgent administrative action is possible only when a child’s health and life are under direct threat, the list of reasons for removal of a child within the frame of parental rights limitation procedure is open. Critics of the existing practice of removing a child from a family point to ill-considered and unjustified removals and to expanded interpretation of the reasons for it (e.g., poverty, the use of alcohol by parents, or non-traditional parents), as well as inaction in cases of direct threat to the child’s health and life. Violence against a child or his/her parent rarely becomes a reason for removal in spite of the presence of relevant norms in the law. Amendments to the Russian Constitution adopted in 2020 declared that children are the most important priority for the state and guaranteed protection of the family and traditional family values. This resulted in strengthening the discourse of unacceptability of removal of a child from a family. Two law drafts that were introduced in 2020 and presently are being modified aimed at considerably limiting state discretion to interfere a family affairs and prohibiting administrative removal of a child. Standards of regulation of a child’s removal developed by the European Court of Human Rights demonstrate that European countries share the value of fostering a child’s family upbringing and confirm the exceptional nature of a child’s removal from the family. Securing the principle of non-separation of a child from his/her parents, however, should not preclude protection of the child in cases when his/her health and life are in danger. It is possible to reach both aims if the link is cut between the removal of a child and the further process of limitation and withdrawal of parental rights. Issues of temporary removal of a child from the family and of withdrawal of parental rights, which sever family and legal ties between a child and his/her parents, should be considered separately, not formally, and taking into consideration the best interests of the child. In addition, it is necessary to guarantee the possibility for a child to reunite to his/her family after rehabilitation measures have been taken to build up the family’s child-rearing potential.

JUS COMMUNE

GENERAL PRINCIPLES OF INTEGRATION LAW AS A SECRET WEAPON OF THE CJEU AND OF THE EURASIAN ECONOMIC UNION COURT

Kirill Entin

The formulation by the Court of Justice of the European Union of general principles of EU law is rightly characterized as one of the most symbolic and inspired examples of judicial activism, as it allowed the CJEU not only to complete the inevitable lacunas in the founding treaties, but also to ensure the protection of the rule of law and human rights within the integrated EU. In an analysis of the functions of the general principles of EU law, their origins, and the criteria used by the CJEU to identify them, the author argues in favor of a restrictive reading of the notion of “general principles of EU law”, excluding those principles used to describe the institutional structure of the EU or the specificity of its legal order. An analysis of the EAEU Court’s case law allows the author to reach the conclusion that, while the Court first made use of the term “general principles of the Union’s law” in an advisory opinion on public procurement in 2021, the process of creating its own system of principles started in 2016–2017. This is demonstrated in part by the Court’s systematic referral to the principles of proportionality and legal certainty not only in order to interpret Union law provisions but as separate requirements that allow it to determine whether the Commission decisions and acts of the Member States comply with EAEU law. The author expresses the opinion that the creation of such a legal category is a necessity for courts of integrated unions due to the special nature of integration law, which by its subject is closer to national than to public international law. In this regard the general principles of law of an integrated union allow a link to be maintained with both international law and the constitutional legal orders of their Member States.

LEX MERCATORIA

SANCTIONS IN AN INTERNATIONAL INVESTMENT ARBITRATION CASE

Il’ya Rachkov, Elizaveta Rachkova

In this article, the authors consider the approach of international investment arbitration tribunals to the resolution of disputes between claimants from a sanctioned state (in this case – Iran) and the host state (Bahrain). Depending on how the defendant builds its defense, the arbitral tribunal may regard the sanctions against the claimant’s State as a basis for declaring that the arbitral tribunal does not have jurisdiction to consider the dispute on the merits; or that the claim is inadmissible, should be dismissed on the merits, or should be satisfied; or for use as a factor in decreasing the amount of compensation for the respondent State’s violation of the investor’s rights. In this case, the defendant (Bahrain) chose to use sanctions against Iran as the basis for objections against the jurisdiction of the arbitral tribunal and against the admissibility of the claim. Therefore, it is precisely these objections of the respondent State and their assessment by the arbitral tribunal that are of particular interest. However, despite the respondent’s deeply layered argumentation on these issues, the panel of arbitrators did not agree with the respondent. In addition, a whole battle unfolded between the parties about every substantive law argument, while the parties gave mutually exclusive legal assessments of the facts of the case. However, the panel of arbitrators ruled generally in favor of the claimant. This in itself is surprising, because Iran is subject both to sanctions imposed by the UN Security Council and even more severe EU and US sanctions, and the claimants were Iranian state-owned banks. As follows from this decision, the claimant’s being from a sanctioned state is not an obstacle for protection of its rights under the applicable international treaty on the protection of foreign investments. In light of the new sanctions imposed by the EU, the US and other states on various Russian entities and individuals after 24 February 2022, the case is of particular interest to potential Russian claimants and to Russia as a potential respondent State.

THREE IS NONE? THIRD-PARTY FUNDING IN INVESTMENT DISPUTES: THE UNCITRAL WORKING DOCUMENT

Ilya Lifshits, Anastasiya Shatalova

Since 2017 the UNCITRAL Working Group III has been working on reforming the investor-state dispute settlement system. One of the initiatives in this project is the development of draft provisions on third-party funding. Such funding constitutes a challenge to the investment dispute resolution system since third parties get an opportunity to use the system to earn a substantial profit and such funding may increase the number of frivolous claims against states. Rules of many arbitral institutions have been amended to require disclosure of a third-party funder or the provisions of a funding agreement. However, disclosure alone may not be sufficient to remedy the adverse effects of funding a case by a third party who does not participate in the proceedings. The UNCITRAL Secretariat's Draft provisions offer both an outright prohibition of this funding and various models for limiting it. The authors on the base of doctrinal sources and general scientific and specialized research methods critically assess the models proposed by the Secretariat and suggest their own vision of the regulation of third-party funding in investment disputes. The authors argue that third party finding should be allowed only in two situations: non-profit funding and funding of small and medium-sized enterprises. This approach would arguably help to avoid vague wording as well as varying interpretations by arbitrators of the provisions of the current UNCITRAL Secretariat's draft provisions on the allowed types of third-party funding of financing. At the same time this approach would not violate the right to access to justice of certain categories of investors. The authors believe that the provisions developed by states’ delegations under the auspices of UNCITRAL could become a universal model for arbitral institutions engaged in ISDS and for inclusion in the text of international investment treaties.

ISSUES OF JURISDICTION IN THE PRACTICE OF INTERNATIONAL INVESTMENT ARBITRATION OF DISPUTES WITHIN THE EUROPEAN UNION ARISING FROM THE ENERGY CHARTER TREATY

Aleksey Shiyanov

The competition of the international legal regime for the protection of investments, in both material and procedural aspects, within the framework of the Energy Charter Treaty as well as the treaties establishing the European Union and determining its functioning, gives particular relevance to the subject matter. International investment arbitrations substantiate their right and obligation to consider claims of European investors against the member States of the European Union by resolving the conflict between the two regimes by interpreting the provisions of the Energy Charter Treaty in the light of common methods of interpretation of international treaties. The answer to the question of the jurisdiction of these tribunals for the relevant category of disputes depends on the format of the implementation of the investor's right to protection from the actions of the receiving State and the prospects of an appropriate international legal regime based on the prior consent of the receiving States to transfer disagreements to international arbitration. In this regard, it is advisable to systematize the conclusions of international investment arbitrations as to such issues as the affiliation of investors to another contracting party, the implied provision for the separation of regimes, the law applicable to the establishment of jurisdiction, the genesis of the constituent treaties of the European Union, the significance of the Decision of the Court of the European Union in the case of Slovak Republic v. Achmea BV and statements of the Member States of the European Union on its consequences, the timeliness of the application of a jurisdictional objection, and the possible non-recognition of the rendered decision on the merits. At the same time, it is justified to refer to the most significant cases considered both before and after the Court of the European Union made this decision. This approach allows us to conclude that the main trend remains the recognition by the tribunals of their competence to consider investor claims against host States within the European Union, at least those claims initiated before the Achmea Decision. The jurisdiction of international investment arbitration in disputes affecting the European Union energy sector and related to the Energy Charter Treaty will inevitably narrow down to the requirements imposed by investors of European Union non-member States and to the European Union as a contracting party.