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The number of human rights issues commanding and deserving attention throughout the world is undeniably growing. Age discrimination is one of these issues. If, and how, judicial authorities including the European Court of Human Rights (ECtHR) respond is one factor that could lead to real change on this issue. Age is not one of the protected grounds explicitly mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Age as a discriminatory distinction has been little discussed in the case law of the ECtHR. The prohibition of discrimination on the grounds of age has long played no role in its jurisprudence. It was only in 2010, in Schwizgebel v. Switzerland, that the Court recognized for the first time, at least indirectly, that age also falls within the category of “other status” within the meaning of Article 14 of the ECHR. Although the Court has issued few decisions in age discrimination cases, a certain approach has emerged. The Court gives rather broad scope to Member States to justify differential treatment on the basis of age, due to these States’ lack of a common approach or consensus on enacting measures in certain areas of legal regulation. Also, where age discrimination claims have been raised alongside or in combination with another ground of discrimination, such as sex, there is tendency for the Court to dismiss the age element of the claim in favor of resolving the case on the other, traditional ground. However, the adoption by the Court of an anti-stereotypical approach may encourage evolution and change in the treatment of age discrimination cases, so that applicants gradually will receive the necessary protection.
According to the traditional view, issues of public order relate to private international law, where reference to the public order of the State is used as the basis for a court’s refusal to apply a foreign law or to recognize and execute a foreign judicial or arbitral award. However, the concept of public order has recently become firmly rooted in public international law, where it is used in both broad and narrow senses of its meaning. Public order in the narrow sense is one of the grounds provided for by an international treaty for the legitimate refusal of a State to fulfill its obligations under the treaty. Public order in the broad sense is a set of norms that are fundamental to a particular international legal order and ensure its stability and effectiveness. In the article, issues of the implementation of the concept of public order in its broad and narrow senses are examined by using as examples decisions by courts of regional economic integration (the Court of the European Union and the Court of the Eurasian Economic Union). It shows how the Court of Justice of the EU resolved the issue of public order as one of the exceptions provided for by the constituent treaties of the EU in relation to the market freedoms of the single internal market, as well as showing the Court’s attempt to take control of the application of this provision by EU member States. The article also explains the reasons for the EU Court’s use of the concept of public order in its broad sense, primarily in matters of the recognition and enforcement of foreign arbitral awards by EU member states’ national courts. As for the practice of the EAEU Court in these matters, it is noted that public order issues in both senses have not yet been the subject of detailed consideration by the Court and are only beginning to be briefly mentioned in dissenting opinions of individual judges.
This article analyzes the procedural and psychological aspects of serving sentences by international criminals. Special attention is paid to their life after release and the problems that arise in connection with their reintegration into society. An attempt is made to identify the main psychotypes of criminals, based on their attitude to their crime and their assessment of their own role in it. The article concludes that long-term prison isolation generally helps to reduce the criminogenic potential of such persons. Specific examples show strategies resulting in successful and unsuccessful career-building after serving a sentence. Particular attention is paid to the situation of prisoners adjudged by the International Criminal Court for Rwanda, who for years could not return to their homeland or receive shelter in a third country. In this regard, it is concluded that there is weak coordination of cooperation between international criminal justice bodies and national authorities. Separate consideration is given to the question of the purpose of punishment pursued by bodies of international criminal justice. These include just desert, general prevention, and special prevention. More difficult is the question of the possibility of rehabilitating an international criminal. At first glance, this goal is a traditional one for courts and the correctional labor system at the national level. At the same time, what the international criminal has done testifies to such a profound deformation of the human personality that traditional means of correction can hardly be effective. Nevertheless, the practice of a number of international criminal tribunals, primarily the International Criminal Tribunal for the former Yugoslavia, shows the possibility of correcting such a criminal if the deed was committed under duress. It is concluded that how an international criminal is perceived in his homeland after serving his sentence and returning home is largely determined by the values that are held by the local population as a whole.
JURISDICTIONS OF THE DISPUTE SETTLEMENT BODY OF THE WORLD TRADE ORGANIZATION AND INTERNATIONAL INVESTMENT ARBITRATION: OVERLAP OR COMPLEMENTARITY?
The development of international economic relations has led to the emergence of independent dispute resolution mechanisms such as the Dispute Settlement Body of the World Trade Organization (DSB WTO) and international investment arbitration. However, in recent years there has been an increasing number of disputes with similar factual circumstances that were referred simultaneously to the DSB WTO and to international investment arbitration. As a result, procedural and substantive overlaps between the two fora have emerged. Whether this trend has a positive or negative effect is still an open question. On the one hand, the fact that the resolution of an international dispute may be considered by several international judicial bodies gives a disputing party the possibility of choosing a specialized forum, which makes the final outcome more efficient. On the other hand, the existence of several dispute resolution bodies that consider disputes arising from similar factual backgrounds further exacerbates the fragmentation of international economic law. This article is devoted to an analysis of jurisdictional aspects of the DSB WTO and international investment arbitration in the context of possible overlaps in both their procedural and substantive parts. The analysis reveals that the doctrines of res judicata and systematic interpretation do not provide effective remedies to prevent and overcome the overlaps between the DSB WTO and international investment arbitration. The authors believe that the problem of overlapping jurisdictions of the DSB WTO and international investment arbitration can be solved if a prior decision by one forum is evaluated by the other forum as factual evidence in the dispute and if an interpretation made by one forum is taken into account by the other forum in its decision-making.
Traditionally, international custom is considered one of the most problematic sources of international law. In many ways, this explains the cautious attitude of Russian doctrine and Russian courts towards it, even while combined with a recognition of the importance of international customary law. At the same time, in the second half of the twentieth century serious changes began to occur in customary international law, the accumulation of which by the end of the century made it possible to talk about the emergence of modern customary international law, which is strikingly different and even opposed to classical customary international law. The dynamics of the development of customary international law in the second half of the twentieth century led to the emergence of a very rigid structure which is poorly consistent with the principle of sovereign equality of States and the principle of conscientious compliance by States with their international obligations. New approaches to the identification of customary norms led to the fact that the custom could appear in a short time and become mandatory for all States, with the exception of those which constantly and loudly objected to it at the stage of its formation. At the same time, this process of creating a custom permits reliance only on the practice of an active minority of States, provided there is no significant disagreement on the part of other States. Another fundamental difference of modern customary international law is that it does not provide for reservations and ratification by States, or for unilateral withdrawal of States from it, including by revocation of their opinio juris. A serious concern is the tendency on the part of international and national courts to declare the existence of a particular rule of customary law without any convincing and reasoned justifications in the form of an analysis of the practice of States and their opinio juris. The inability of States to adjust the risks associated with customary law at the multilateral level has led to the fact that States individually have begun to take measures to minimize them, using various methods for this. Thus, the highest national courts have begun to equate customary law with international treaties so that in both the explicit consent of the State is always necessary, thereby calling into question both the binding nature of the custom in relation to all States, even those who objectively could not express their opinion during the formation of the customary norm, and the impossibility of unilateral withdrawal from custom. Unfortunately, clarity regarding customary international law is still lacking in the Russian legal order, leaving open the question of how to resolve conflicts that arise between the customary norms of international law and the provisions of national law, including provisions of the Constitution.
JUS GENTIUM PRIVATUM
DEVELOPMENT OF THE PRIVATE INTERNATIONAL LAW OF INTELLECTUAL PROPERTY: THE EXPERIENCE OF INTERNATIONAL UNIFICATION
In the conditions of internationalization and digitalization of the economy, business, society, and the State have steadily increasing needs for special legal regulation that takes into account the peculiarities of the interaction between the territoriality of intellectual rights and the freedom of movement of goods and services and that also reduces the risk of legal uncertainty and unpredictability arising from differences in national laws. One of the effective methods for meeting these needs is the international unification of private international law in the field of intellectual property. This article, based on comparative legal analysis, examines approaches to international unification of private international law of intellectual property that were developed during preparation of the International Code of Conduct on the Transfer of Technology under the auspices of UNCTAD, in conventions developed by the Hague Conference on Private International Law in the framework of the HCCH Judgement Project, as well as in documents of international regional unification. In addition, it analyzes the reasons preventing the achievement of consensus among States on the unification of conflict of laws and norms of international civil procedure in the field of intellectual property. In particular, attention is paid to differing approaches in the law of individual States to the grounds for and limits of the application of mandatory substantive legal norms of the country in respect to which protection is sought (lex loci protectionis) as to norms that regulate private law relations complicated by a foreign element in the field of intellectual property; qualify as norms of direct application and as provisions that are an element of public order; and influence freedom of contract, the limits of autonomy of the will of the parties, the arbitrability of disputes, and the right of the parties to choose a court. The article examines the experience of interstate universal and regional unification of rules on the law to be applied in matters of intellectual property rights and of rules on arbitrability, international jurisdiction, and recognition and enforcement of foreign judgments in civil and commercial disputes involving intellectual property rights. This experience is of interest in the further search for a compromise on these issues at the interstate level as well as in the development of national legislation on private international law.
The issues of protection of human and civil rights and freedoms, liability in the form of compensation for material damage caused as a result of international crimes, and restoration of violated rights have a special place in the wide range of scholarly interests of Professor L.N.Galenskaya. Her academic anniversary was celebrated in 2022 in recognition of her major contribution to the development of international legal scholarship. Through the lens of L.N.Galenskaya’s research, the paper sheds light on individual States’ mechanisms for access to justice to ensure that the victim of an international crime committed outside the State’s borders has the right to compensation for material damage. The work provides selected examples from the practice of international and national courts to illustrate the role that internal mechanisms can play in compensation for such harm. In the modern world, more and more attention is being paid to the rights of victims to compensation for harm and not only to the punishment of perpetrators. History shows that victims unable to gain compensation for international crimes within the country where the crimes were committed have appealed to courts of foreign states, filing lawsuits based on principles of jurisdiction other than territoriality. This additional possibility is related to the doctrine of universal civil jurisdiction. Victims of international crimes are subct to state protection, they should be given the opportunity to seek restoration of their rights and legitimate interests by their own actions, including in civil proceedings. Legislation of the Russian Federation should enshrine the rule of universal civil jurisdiction of Russian courts to consider damage claims by victims of an international crime.
The article deals with the problem of the non-binding force of legal pronouncements by expert human rights treaty bodies. This is one of the main problems in the functioning of the entire system of treaty monitoring bodies established within the framework of universal international agreements on human rights. The effectiveness of the monitoring mechanism of human rights treaty bodies depends to a large extent on the impact that the pronouncements of the treaty bodies have on national legal orders. The practice of treaty bodies primarily affects national legislation and the protection of human rights at the national level, although it can also influence the development of international law. The purpose of the article is to trace how the attitude of the international community, represented by the International Court of Justice of the United Nations and the UN International Law Commission, as well as that of States, has changed towards pronouncements made by human rights treaty bodies and towards these pronouncements’ significance for international and national law, respectively. The absence of legally binding force of these pronouncements does not mean that they have no legal value at all. On the contrary, States, recognizing the importance of these pronouncements, use various mechanisms to implement them. Therefore, the article analyzes the practices of international bodies and of national courts of States Parties to human rights agreements with respect to the judgments of treaty bodies. An analysis of States’ practices shows that treaty body pronouncements are increasingly used in national courts. Recourse to the judgments of the treaty bodies in interpreting human rights is likely to depend to a large extent on the authority of the treaty bodies and on the specific provisions of their pronouncements. However, in the absence of binding powers, treaty bodies need to ensure their legitimacy through their internal procedures and the clarity of their decisions’ legal reasoning. In addition, it makes sense, in light of the rules of international law of treaty interpretation, to assess the capacity of treaty bodies to interpret the human rights treaties they are called upon to monitor.