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CONTENTS
PRAXIS
RES JUDICATA
THE EURASIAN ECONOMIC UNION COURT’S ADVISORY OPINION IN CASE NO. P-6/24 ON PHYSICAL PERSONS’ ACCESS TO JUSTICE: AN EXTENDED COMMENTARY
The article is devoted to the analysis of the Eurasian Economic Court advisory opinion of February 12, 2025, on the application of the Eurasian Economic Commission. The article describes the context that prompted the EEC to submit the question of the right of physical persons who are not individual entrepreneurs to challenge the acts, actions (or failure to act) of the Commission in the field of competition. It analyses the advisory opinion’s structure and the arguments used by the Court. The commentary notes that the advisory opinion illustrates the Court’ commitment to ensuring respect for human rights, including access to justice, as general principles of Union law. At the same time, the author contends that recourse to general principles may not be used to fill the gaps in the Union’s primary law. The opposite approach would amount to the creation of a new norm and would mean the attribution of new powers to the Court that were not conferred to it by the Member States. Using the case law of the Court of Justice of the European Union as an example, the author argues that such an approach is not common among other integration union courts either. The article also addresses the issue of the division of powers between the EAEU Court and national courts, mentioned in the application of the Commission. The author notes that the fact that the advisory opinion does not indicate that the jurisdiction of the EAEU Court to control the validity of EEC decisions is exclusive should be analyzed in the context of the need to establish a dialogue with national courts. At the same time, the Court’s statement on the need to ensure the right of physical persons to judicial protection shall be construed as pointing to the need of introducing changes to the EAEU Treaty, rather than to the permissibility of using national judicial remedies. The author contends that control by national courts over the validity of EEC decisions would be contrary both to the mandatory character and direct applicability of EEC decisions and to the principle of legal certainty.
SCRIPTORIUM
OPINIO JURIS
RUSSIAN DOCTRINE OF INTERNATIONAL LAW ON THE ARCTIC: A 100-YEAR ICE OF SOLITUDE
The relevance of the revision of scholarly approaches to the legal regime of the Arctic is conditioned by the emergence of new factors. These include the development of judicial and other practices in the field of maritime law, global warming, the development of the institution of state responsibility for anthropogenic pollution of the sea, the growing importance of the Northern Sea Route, the intensification of superpower rivalry, including in the Arctic region, and the conflict in Ukraine. The descriptive part of the article is presented in seven sections, each of which deals with a separate fragment of the Russian scholarly discourse (concept of regional customs, sectoral principle, interpretation of Article 234 of the Convention on the Law of the Sea, regime of navigation in the waters of the Northern Sea Route, etc.). A brief review of the main facts and documents is followed by a summary of the theses of Russian authors, which in turn are followed by counter-arguments borrowed from the works of foreign scholars or formulated by the author himself. The eighth section discusses the methodological peculiarities of the Russian doctrine that negatively affect the quality of its arguments; the ninth one outlines the author’s vision of the genesis of the Arctic legal regime and formulates promising strategies for defending Russian interests in the region. The article reaches two main conclusions. The first conclusion is the inadequacy of Russian approaches in the field of the law of the sea to Russia’s geopolitical interests and the general theory of international law. The second conclusion is the existence of alternative strategies for the defense of Russian interests — more modern, well-founded and effective. The use of these strategies requires the revision of existing approaches, collective work, support from the Ministry of Foreign Affairs of the Russian Federation and extensive communication with foreign colleagues. This is an extremely important and urgent task.
JUS HOMINUM
RIGHT TO TRUTH: THE PATH TO INTERNATIONAL RECOGNITION
The concept of the “right to truth” allows the families of victims of gross or massive human rights violations to learn the truth about what happened to their relatives. The article analyzes the right to truth through the prism of international legal norms and key cases of the ECtHR and the IACHR, which had a significant impact on the formation of this right. When studying the vectors of evolution of the right in question, it is noted that the right to the truth has gradually expanded not only the external aspects of its application, but also its constituent elements: the right to know, the right to compensation, guarantees of non-repetition, and the obligation to conduct an effective investigation. The problem of access to archives is emphasized: it is advisable to store archival materials with a third party when there is a threat of destruction of materials or lack of proper storage conditions. The author notes the difference between the “right to know” and the “right to truth”: the conceptual idea of the “right to know” is to provide information about what happened, and the broader idea of the “right to truth” is no longer just to identify or disclose information about gross human rights violations, but to conduct an investigation to prevent the recurrence of such violations in the future. Despite the contribution of international bodies and courts, the right to truth has not yet taken on an independent form and its future looks uncertain. The analysis of the practices of the IACHR and the ECtHR highlights a fragmented approach to the issue of not only the limits of the realization of the right to the truth, but also the nature of this right. This problem is expressed in the fact that the courts are undecided and always connect the right to truth with one or another convention law in different ways. Emphasizing the evolutionary origin of the right to truth, it is noted that the subsequent fate of the right to truth will largely depend on the judges of the ECtHR and the IACHR.
DISCEPTATIO
INTERNATIONAL HUMAN RIGHTS: STORIES AND CONSEQUENCES OF UNIVERSALITY
This article presents a genealogical analysis of the origins and nature of the universality of contemporary human rights within the broader evolution of international law. Challenging the classical progressivist narrative, the author differentiates between various iterations of what is conventionally referred to today as human rights or their historical precursors — natural rights, the rights of the citizen, rights of man, rights of national minorities, and, ultimately, human rights as formulated in the 1948 Universal Declaration of Human Rights. The latter represents the first historical instance in which an international legal articulation of human rights is framed as a universal, timeless, and global model. Nonetheless, these human rights emerged as the second attempt — following the failed efforts of the Interbellum period — to internationalize the discourse of rights, particularly within the mechanisms established for the protection of national minorities and stateless persons. Before the late 19th and early 20th centuries, subjective rights as such — whether rights of the citizen or rights of citizenship — were primarily confined to domestic political struggles, functioning as both an instrument and a precondition for access to recognition-seeking collectives within the State. To this day, international law and its practice has yet to produce actually universal human rights, leaving universality as an aspiration rather than an empirical reality — one built upon the abstract notions of Human Nature and Human Dignity. Yet even these universally aspirational rights have ultimately become captive to the very universality they proclaim. Engaging with the paradigm of critical legal theories, drawing on the genealogy method (a critique of grand narratives), and taking inspiration from Hannah Arendt’s theory of totality, the author seeks to demonstrate how an idea conceived as emancipatory, once constrained by its positivist articulation in international law, inevitably evolves into the kind of hierarchical, totalizing, and ideological construct that postmodernist critique has long identified. In doing so, human rights steadily diverge from the ideals of ius naturale, risking to become — if they have not already — yet another iteration of the historically recurrent, logically simplistic, and politically convenient ideologies that humanity has outlived before. The author’s solution is the instrumentalization of the universality of human rights for the purpose of selected human rights issues.
JUS CRIMINALE
NUREMBERG TRIAL: LESSONS FOR PRESENT AND FUTURE TIMES
The article examines the influence of the Nuremberg Trials of the main war criminals of the European Axis countries in 1945–1946 on the development of international criminal law. The said trial is considered in the context of the foreign policy situation as it was in the 1940s. Additionally, the article explores earlier attempts of mankind to bring those responsible for unleashing the First World War to justice under international law. The article describes the attempts of the international community to organize a trial of Kaiser Wilhelm II as the main culprit of the outbreak of the First World War, and analyzes the conditions that led to the failure of this action. A number of cases considered by the German Supreme Court in the 1920s against minor commanders on charges of war crimes committed during the First World War are mentioned. The author regrets that in the interval between the two wars the world community failed to organize an international criminal tribunal under the League of Nations, as planned, and traces the continuity between the first attempts to construct a universal international criminal mechanism and today’s activities of the International Criminal Court. The article examines the progress of the Allied negotiations on the organization of the International Military Tribunal in Nuremberg, and analyzes the initially diametrically opposed positions held by the leaders of the three great powers. The author mainly analyzes the influence of the Nuremberg Trials in three aspects: 1) immunities of senior officials; 2) responsibility for the execution of a superior order; 3) moral and political responsibility of the state for atrocities committed in its name. Each of these aspects is considered in the context of today’s challenges facing the international community. Particular attention is paid to the German experience, in particular the reform of the Code of International Criminal Law carried out in 2024, which significantly updated many previously considered unshakable approaches in the area of functional immunity of foreign officials, as well as media coverage of war criminal trials (the possibility of publishing the judgment in a foreign language, providing translation services to reporters covering such trials, etc.).
JUS GENTIUM
PROVISIONAL APPLICATION OF TREATIES: A CHALLENGE TO CONSTITUTIONAL PRINCIPLES OR AN INHERENT ATTRIBUTE OF INTERNATIONAL RELATIONS?
Given the absence of specific provisions in the Vienna Convention on the Law of Treaties of 1969 aimed at the regulation of the international and national law correlation with respect to the provisional application of international treaties, the article examines the degree and nature of relevance of constitutional provisions when a state expresses consent to the provisional application of an international treaty. This regime has undoubted advantages, allowing the executive to promptly resolve various difficulties arising in international relations without resorting to lengthy procedures of parliamentary approval. At the same time, considering that the obligations of the state arising by virtue of provisional application are governed by the pacta sunt servanda principle, fair concerns arise in relation to the limits of the executive’s powers to bind the state with international legal obligations in light of the constitutional principle of separation of powers, as well as special nature of legislative bodies exercising the functions of people’s representation. Options for resolving these difficulties are reflected in the national legislation of states, which provides for special conditions for consent to provisional application. At the same time, there is uncertainty with regard to the question of the conditions for recognizing the state’s consent to the provisional application invalid in the event when the executive violates relevant requirements of domestic law when expressing such consent. It seems that using the same rules as those provided for in article 46 of the Vienna Convention for invalidating a state’s consent to be bound by an international treaty would not fully take into account the specifics of the regime of provisional application of treaties. With these concerns in mind and taking into account the comparative legal analysis carried out, there are solutions proposed aimed at increasing parliamentary control over the executive in the Russian Federation without leveling the advantages of the regime of provisional application. Such solutions, inter alia, imply both the expansion of parliamentary functions and the establishment of additional legal procedures to ensure the implementation of the prescriptions outlined in the decisions of the Constitutional Court of the Russian Federation.
ACADEMIA
SCHOLAE
CONTENT OF STATES OBLIGATIONS TO PREVENT TRANSBOUNDARY DAMAGE IN MARITIME AREAS DUE TO CLIMATE CHANGE
Climate change increasingly affects various aspects of human activity each year, resulting in growing transboundary damage. Consequently, the author aims to analyze the obligations of states to prevent transboundary damage, drawing on the 1982 UN Convention on the Law of the Sea and the principles of customary international law. The article examines the obligations of states under the 1982 UN Convention on the Law of the Sea, with a particular focus on the principles of prevention of transboundary damage and due diligence, as well as their interrelationship. To deepen the understanding of due diligence within the context of international environmental law and climate change, the author analyses both the position of the Commission of Small Island States on Climate Change and International Law on due diligence, as well as the Advisory Opinion of the International Tribunal for the Law of the Sea on the request of the Commission of Small Island States. In examining the ITLOS Advisory Opinion, the positions of States on climate change and its impact on public order and life are also explored. Currently, there is a discernible trend towards increased climate litigation and the development of international environmental law, as evidenced not only in the multitude of disputes before national and international courts but also in the pending Advisory Opinions before the International Court of Justice and the Inter-American Court of Human Rights. The article also discusses the problem of determining the existence of international legal liability for transboundary damage and explores the ways and forms of redress. In situations involving transboundary damage, the affected state, as the victim, must prove a wrongful act, namely a breach of an international obligation, attributable to the other state. Thus, the paper analyzes the obligations of states to prevent transboundary damage, using the law of the sea as an illustrative example, and also raises the issue of state liability.