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CONTENTS
PRAXIS
RES JUDICATA
ON THE “GREEN” TRANSITION AND THE PROCEDURAL REVOLUTION. AN OVERVIEW OF THE DECISIONS OF THE GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS OF APRIL 9, 2024 IN CARÊME V. FRANCE (APPLICATION NO. 7189/21), DUARTE AGOSTINHO AND OTHERS V. PORTUGAL AND OTHERS AND 32 OTHERS (APPLICATION NO. 39371/ 20), VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS V. SWITZERLAND (APPLICATION NO. 53600/20)
The article analyzes the facts and legal positions in three recent landmark judgements of the European Court of Human Rights in climate change cases. In two rulings, complaints (against Russia and others) about the inadequacy of States in overcoming the consequences of global warming were declared inadmissible. The third ruling (against Switzerland) was used by the Strasbourg judges for the first time to open the “climate” dimension of a number of articles in the European Convention on Human Rights and to determine the criteria for admissibility of referring the relevant issues to the ECtHR from national jurisdictions. To do this, the Court had to radically reconsider its own approaches to determining the victim status, procedural standing, and the possibility of filing complaints in the public interest (actio popularis). Particular attention in the article is paid to the increased opportunities in the ECtHR for non-governmental organizations, which will now be able to appeal to Strasbourg justice in environmental cases without having in hand complaints from individual victims. Apparently, the Court fears a flood of applications from those inspired by its willingness to evaluate environmental policy and hopes that influential NGOs will become for it what the Human Rights Commission once was — a filter. There are advantages of expanding the procedural rights of the NGOs in the ECtHR: giving the Court’s positions greater publicity, monitoring the actual execution of court decisions, increasing access to justice, attracting attention to the most painful and pressing problems, and improving the quality of the preparation of complaint materials. Despite these, there are significant risks: distraction of attention from “ordinary” applicants; an increase in the number of disputes which the ECtHR previously tried to avoid for various reasons, including political ones; and the emergence of suspicions about the favor of the European Court towards “friendly” organizations which ensure their own opportunistic interests and are dependent on wealthy sponsors. Despite the importance of recognition at the level of the European Court of the global nature of the problem of climate change, these judgements for a number of reasons cannot be considered an example of an effective legal resolution of a sensitive “political” issue like the environmental policy of the parties to the Convention, and therefore are unlikely to influence real improvement of the situation.
INTERNATIONAL LEGAL ASPECTS OF THE SCYTHIAN GOLD CASE
This article deals with decisions of the Netherlands state courts in a case regarding Crimean archaeological artefacts (“Scythian gold”). Ukraine and four Crimean museums had a dispute about to which entity the Allard Pearson Museum should return the Scythian Gold. The relevance of this question is based on the unique nature of the dispute about competing rights to cultural property of the State and non-State actors. The case in question concerns two main issues. First, the Dutch courts explored the problem of interpreting the concept of illicit export of cultural property in accordance with applicable international rules. Then the adjudicators performed a proportionality test to assess the balance of interests of the parties, both nationally and internationally. To interpret the concept of illicit export of cultural property, a narrow approach was used, incompatible with the factual background of the case. For the purposes of interpretation, the Dutch courts referred to implementing legislation, related international treaties, and legal acts of the European Union. Special importance was attached to parliamentary documents on treaty interpretation. The methods of the general theory of law were utilized to conduct the proportionality test at the domestic law level. The case law of the European Court of Human Rights was applied to assess the balance of interests within the framework of international law. By applying a critical method, the author examines the compliance of the Dutch court’s conclusions with current norms regarding cultural heritage, using the opinions of foreign researchers. The case is also of great importance for research on the interaction between international and national legal systems. The approach of the Amsterdam Court of Appeal appears to be more restrained, although to a lesser extent it satisfies the interests of States. In turn, the assessment of the balance of interests could be carried out in a more flexible way, meeting the interests of Crimea, the place of origin of the Scythian gold. Despite Russia’s formal non-participation in the dispute, the author discusses the problem that arose with the Crimean cultural objects in the context of the unresolved issue of return of cultural objects among post-Soviet States. In general, the case under consideration demonstrated the issue in international law of finding a compromise between the rights of States and other entities regarding objects of cultural heritage.
REVIEW OF THE DECISION OF THE INTERNATIONAL INVESTMENT ARBITRATION DATED JULY 14, 2023 IN MOBILE TELESYSTEMS PJSC V. TURKMENISTAN (ICSID CASE NO. ARB(AF)/18/4)
In this article, the author analyses the arbitral award rendered in 2023 in the case brought by MTS PJSC (Russia) against Turkmenistan. The dispute was considered in accordance with the Additional Facility Rules of the International Center for Settlement of Investment Disputes (ICSID), although, as a rule, disputes at ICSID are resolved in accordance with the 1965 Washington Convention for the Settlement of Investment Disputes between States and Nationals of Other States. However, since Russia never ratified this Convention, it does not apply to disputes between Russian claimants and Turkmenistan as the respondent. The substantive law basis for the claims is the Agreement between the Government of the Russian Federation and the Government of Turkmenistan on the promotion and mutual protection of investments (2009). This type of treaty establishes the standards for the treatment of foreign investors and for their investment by the state receiving such foreign investment (in this case, Turkmenistan) from another country that is a party to the treaty (Russia). In the same vein, the Agreement also lists standards of fair and equitable treatment, minimum standard of treatment, national treatment, full protection and safety, the obligation of the host state to issue all permits necessary for the implementation of the permitted investments, most favored nation treatment, and freedom of money transfers. As in many other similar disputes, in the present case the arbitrators had to answer the question of what the content of these standards was. In addition, the panel of arbitrators examined the claimant’s arguments for its challenge of the respondent’s representatives, the respondent State’s request to hold an in-person hearing, and the significance of the settlement agreement previously concluded between the parties. The panel assessed the behavior of various persons and bodies from the point of view of imputation of their acts and omissions to the State as a subject of international law. In a great victory, the dispute was resolved in favor of Turkmenistan. However, MTS is now trying to get this arbitration award set aside by the state courts of Sweden which was the location of arbitration.
INVESTMENT DISPUTE WITHIN THE FRAMEWORK OF THE EURASIAN ECONOMIC UNION: OOO MANOLIUM-PROCESSING V. THE REPUBLIC OF BELARUS
According to the data provided by the UNCTAD, there are currently 1 332 known international investment disputes arising out of international investment agreements. More than 3 000 such agreements have been concluded in the world, and their number continues to grow. The Treaty on the Eurasian Economic Union (EAEU), which was signed on 29 May 2014 and entered into force on 1 January 2015, also contains provisions regulating promotion and protection of foreign investments. This article is devoted to the first published decision of an arbitral tribunal which heard an investment dispute between an investor from a EAEU Member State (Russia) and a EAEU Member State (Belarus) — OOO Manolium-Processing v. The Republic of Belarus. A special attention is paid, inter alia, to the issue of jurisdictional objection ratione temporis, as the acts of the state that led to the investment arbitration proceedings partly took place before the EAEU Treaty entered into force. Another interesting aspect is the analysis by the tribunal of tax measures imposed by the respondent state on the claimant: although the collection of taxes is deemed to be a right of a state and is usually not thought to be a violation of investor’s rights, in certain cases tax measure can still be considered by an arbitral tribunal from the perspective of an alleged violation of investment law, which was the case in the investment dispute under consideration.
THE DISPUTE BETWEEN UKRAINE AND THE RUSSIAN FEDERATION UNDER THE GENOCIDE CONVENTION AS THE HIGH POINT OF LAWFARE
The author attempts to comprehensively explore the doctrinal and practical issues that have arisen concerning the decision of the International Court of Justice on jurisdictional objections in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) on February 2, 2024. This decision has caused a heated discussion both among researchers in the field of international law and international justice and among the judges themselves. At first glance, it may seem that the judgment was rendered in favor of Ukraine, since most of the objections of the Russian Federation were rejected by the Court. However, the Court drew unexpected conclusions as to the most important and fundamental issues for Russia, stating that it lacked jurisdiction to consider them further. These issues related to Russia’s recognition of the independence of the Donetsk and Luhansk People’s Republics from Ukraine, as well as the most controversial legal issue that Ukraine relied on inthe lawsuit, namely, the use of force by the Russian Federation in this conflict. One of the main ideas of the author is that Ukraine’s lawsuit againstRussia was the culmination of a ten-year long legal dispute. Russia managed to win this first battle, although a second Ukrainian lawsuit had been partially resolved in favor of Russia two days prior to this decision in the Genocide Convention case. Disputes based on the Genocide Convention have raised many issues relating to mass legal interventions by States pursuing political goals and to the non-appearance of one of the parties before the court and the consequences of this. The author also raises the issue of Ukraine’s amended complaint, which changed the substance of its claims. Special attention is given to the issue of the Russian Federation’s plausible responsibility for non-fulfillment of the Court’s Order for provisional measures. Finally, the author considers various options for the Court’s possible conclusions on the merits of the case in its final judgment.
SCRIPTORIUM
JUS GENTIUM
INTERNATIONAL LAW IN THE RUSSIAN LEGAL SYSTEM: FROM NORMS TO DECISIONS OF A COURT OF THE EURASIAN INTEGRATION
The Constitution of the Russian Federation of 1993 outlined the place and role of the normative basis of international law — the generally recognized principles and norms of international law and the Russian Federation’s international treaties — in the country's legal system. The Constitution does not speak of the role and significance of individual and law enforcement decisions of interstate bodies and courts in this system. Primary attention is traditionally given to normative instruments (norms and treaties) in the practical interaction between international and domestic law as well. At the same time, acts of international courts and bodies are becoming increasingly important in the judicial activity of the country. They entered legal life in a relatively short modern period, with the inclusion of Russia in the European human rights protection system and the jurisdiction of the European Court of Human Rights. With the development of the Eurasian partnership, integration law is acquiring a supranational character, especially with the establishment of the Eurasian Economic Union and its Court. It has long been recognized that law and legal regulation in general are developed not only by legislative and executive authorities, but also, to a significant and growing extent, by courts. Decisions of international courts will obviously be more often taken into account and used in judicial decisions along with normative documents (treaties). References to them will form part of the reasoning of domestic courts when justifying their decisions. We can talk about a shift in the roles of international legal instruments from norms to decisions of a supranational court in the legal life of the country. Hence, the expediency of studying the role of decisions of the EAEU Court in the Russian judicial practice is obvious. The research was carried out on the basis of analysis and generalization of an extensive list of acts of Russian courts related to appeals to decisions of the Court. The article evaluates the possibility of creating a court of Eurasian integration for the protection of human rights. The results provide grounds for formulating general conclusions and noting trends in the development of integration processes through the interaction of interstate and national justice.
JUS HOMINUM
USSR AND RUSSIAN FEDERATION PARTICIPATION IN INTERNATIONAL MECHANISMS FOR THE PROTECTION OF HUMAN RIGHTS: A NEW PATH OR A REPEAT OF THE PREVIOUS ONE?
Enforcement of human rights through international bodies is an essential component of the modern human rights architecture. However, the recognition of human rights as a subject of international concern does not exclude the responsibilities for the interests of the individual by national authorities, whose approaches in this area are unique and could undergo some changes. The article uses a series of methods to demonstrate the evolution of ideas in the USSR and Russia on international human rights protection. The study found that the official position is correlated with the current situation, often a turning point for the country, and is not mainly conditioned by the desire to create prerequisites for the protection of an individual. Despite all upheavals, the United Nations human rights enforcement mechanisms are welcomed with greater support than cooperation at the regional level. International procedures of a political character (the U.N. Commission on Human Rights/U.N. Human Rights Council and the CSCE/OSCE) are less effective because they do not require specific response measures, compared with similar legal ones (the U.N. Human Rights Treaty Bodies and the ECtHR). Russia’s initiatives to establish an international body for the protection of human rights in the post-Soviet area are in the process of formation. Against the general backdrop, in the last decade there has been a rejection of the broad implementation of international standards provided for by the Russian Federation Constitution of 1993. Although the Constitution contains prerequisites for effective protection of the individual, their effect is blocked by both the interpretation of constitutional norms and domestic practice. The situation raises questions of its compliance with international law, as evidenced by the materials of international bodies. As a result, it is possible to observe features of similarities between the Soviet and Russian approaches to the comprehension of human rights, which sharply contrasts with certain progress made in this area in the long post-Soviet period. In the meantime, attempts to enunciate a special view of their interpretation need a more detailed foundation.
HISTORIA
THE LEGACY OF F. F. MARTENS AND THE SHADOW OF COLONIALISM
This article explores the colonialist legacy of the Russian international lawyer F. F. Martens (1845–1909) who is well known to contemporary international lawyers in particular thanks to the Martens Clause. The article highlights Martens’s activities legitimizing the Congo Free State, his publicist activity at the Revue de droit international et de legislation comparée and his quasi-legislative efforts at the Institut de Droit International, all emanating from his strong support to the distinction between civilized and uncivilized peoples in international law during the colonial era. The main argument in the article is that the colonialist part of the legacy of Martens has been down played for the purposes of celebratory myths of origin of international (humanitarian) law, but that this part of his legacy deserves to be remembered as well. Based on the example of Martens, it turns out that at least in Central Asia, imperial Russia’s international legal policy and rhetoric during the late Tsarist Period did not differ significantly from British and other West European discourses. They were all based on the distinction between “civilized” and “uncivilized” peoples, with negative consequences for ‘uncivilized’ peoples which served as basis for European conquest and colonization. For Russia, this rhetoric towards “oriental” peoples only changes after the Bolsheviks come to power in 1917. The article concludes with the plea that we do not nowadays need to “cancel” Martens but at the same time need to be aware of his complex legacy — that he was a successful jurist and promoter of the laws of war but also a Russian imperialist and to an extent also colonialist opinion leader in international law.