Available in Russian
CONTENTS
SCRIPTORIUM
OPINIO JURIS
А STRANGER AMONG HIS OWN: GENERAL PRINCIPLES OF INTERNATIONAL ADMINISTRATIVE LAW (WITH SPECIAL REFERENCE TO THE DUTY OF REASON-GIVING FOR DECISIONS)
The paper examines the issue of international administrative law with special reference to the duty of reason-giving for decisions. Analyzing the case-law on this duty, the author shows the pro and con of international administrative law. Nowadays, international administrative law can be compared to the situation of “a stranger among his own”. In public international law, this discipline has been ignored. Russian publicists, on the contrary, are familiar with public administration, but their superficial knowledge of international law is noticeable. The article consists of an introduction and three parts. The second part covers the history of international administrative law. Russian international lawyers made a significant contribution to the development of this concept and explored the problem of proper aims in the actions of international administration. The third part considers the universal standards of public administration and the jurisprudence of international tribunals on the duty of reason-giving for decisions. Although the requirement for reasoned decisions has been strengthened outside national jurisdictions, global administrative law is still in formation. At the same time, the author argues that the duty of reason-giving as a general principle of law serves as a ground for reviewing the lawfulness of both international and national administrative actions. Unlike classical public international law based on treaties and customs, the phenomenon of general principles of law initially demonstrates the unity of approaches of global and national governance. The fourth part examines European standards of the duty of reason-giving for decisions. Using this general principle of law as an example, the author examines approaches to the standards of good governance in the law of the European Union and the Council of Europe. Issues of international administrative law acquire practical relevance for integration in the post-Soviet space. This phenomenon is important for the case-law of the Court of the Eurasian Economic Union, where the reasonableness of administrative actions is not yet recognized as a general principle of law.
JUSTICIA
EVOLUTIVE INTERPRETATION: REFLECTIONS ON EVOLUTION, MORALITY, AND THE COMPLEXITY OF CONSENSUS
The article analyzes the evolutionary method of interpretation through the prism of national practices and the key international cases that have influenced the spread of this method of interpretation. It also analyzes the contradictory aspects of the justification of consensus. It is noted that the “living instrument” doctrine received its initial development in international law due to the ideas of “intertemporal law” (international arbitration), the “living Constitution” (USA, Germany), the principle of “contemporanity” (United Nations International Law Commission), and the “living tree” doctrine (Canada). Each new case has clarified the methodology of international courts’ application of evolutive interpretation. The line of development and implementation of this method of interpretation in the practices of the International Court of Justice of the United Nations, the Inter-American Commission on Human Rights, and some universal human rights treaty bodies is analyzed. A significant part of the analysis is devoted to the case law of the European Court of Human Rights (ECtHR), which has succeeded most in developing the “living instrument” doctrine and evolutive interpretation. When analyzing the consequences of moral interpretation in the case-law of the ECtHR, vertical and horizontal consequences are highlighted. As to the role of Russia, it is predicted that despite the increase in the number of evolutive judgments in the practices of international courts, the percentage of evolutionary cases in the ECtHR will decrease due to the termination of Russia’s membership in the Council of Europe and to the strengthening of the principle of subsidiarity. Problematic aspects of the application of the consensus doctrine include the lack of both a clear quantitative standard necessary to achieve consensus among States and consistency in its application. Special attention is paid to the tendency of deliberate “crystallization” of soft law by the ECtHR in substantiating the regulatory framework of the European consensus. The Strasbourg Court continues to expand the limits of the normativity of consensus, including norms of a recommendatory nature. It is noted that references to sources of soft law within the framework of evolutive judgments raise the important question of the legitimacy of such acts, since States are required to implement a decision based, among other things, on non-binding norms.
COMPROMISSORY CLAUSES IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE
This article examines the phenomenon of compromissory clauses in international treaties providing for the jurisdiction of the International Court of Justice of the United Nations (ICJ) in disputes arising under these treaties. The significant increase in the number of disputes referred by States to the ICJ, noted by the author, can be explained by several reasons. The first is the changed attitude of States towards the possibility of using recourse to international courts to achieve their foreign policy goals. Lawsuits have come to be considered not as extraordinary events but as routine procedures which are an effective and necessary tool for implementation of foreign policy. At the same time, the claims of States in the ICJ are increasingly considered by applicant States as part of their strategically coordinated lawfare, involving all international courts and arbitrations available to the applicant State, against their opponents. Secondly, by the purely instrumental attitude of States towards compromissory clauses, these came to be considered by potential applicants as the most convenient and effective way to transfer a dispute to the ICJ. The Court itself also has contributed to the increase in the number of disputes it receives due to its liberal, in the author’s opinion, attitude towards a number of key aspects of compromissory clauses. A certain inconsistency of the Court in interpreting jurisdictional provisions may be quite pragmatic, allowing the Court to avoid adjudicating issues it is not ready to addess. The final part of the article is devoted to an analysis of the risks of compromissory clauses for the Russian Federation and its possible response to these risks. The author suggests looking at Russia’s existing international treaties containing compromissory clauses not from the point of view of minimizing possible risks but as valuable assets which can and should be used instrumentally to achieve its foreign policy goals.
DISCEPTATIO
JURISDICTIONAL CLAUSES AND LAWFARE: COMMENTARY TO THE ARTICLES BY A.S.ISPOLINOV AND S.D.PIMENOVA
This article is a commentary on the article by A.S.Ispolinov “Jurisdictional Reservations (Clauses) in the Practice of the International Court of Justice” published in this issue of International Justice and the article by S.D.Pimenova “The dispute between Ukraine and the Russian Federation under the Genocide Convention as the high point of lawfare” published in the previous issue. The author supports the central thesis of A.S.Ispolinov and S.D.Pimenova, according to which states are now trying to make extensive use of jurisdictional clauses, and develops it by identifying the reasons for this pattern. He also clarifies the concept of lawfare and shows that this phenomenon is linked not only to the instrumentalisation of justice, but also to the crisis that international law is currently experiencing: this crisis is manifested in the ineffectiveness of its secondary norms, the inability of States to resolve complex political problems and the need to use the idea of a common enemy to legitimise the existing order. The main methodological conclusion is the need to consider the institution of international justice in a broader context, not limited to procedural or substantive issues. International courts are undergoing a profound transformation: not only are they increasingly being used as a regular instrument of international politics, but they are themselves becoming important actors in this politics and, in some cases, dictating their will to states. A state that determines its foreign policy should take courts seriously, i.e. use all the opportunities offered by the international procedural form and make judicial work an obligatory element of the general strategy for the defence of its interests. The courts established in the post-Soviet space (the CIS Court and the EAEU Court) could be an experimental platform for testing these innovations. The doctrine of international law should also take up this challenge: it is necessary not only to explore existing practice, but also to develop forecasts of the handling of specific cases, judicial rhetoric, political and sociological approaches to international justice, and much more.
JUS CRIMINALE
THE PRIMITIVE CRIMINAL AS A SPECIAL TYPE OF INTERNATIONAL CRIMINAL — AFRICAN CASES
This article discusses the nature and characteristics of the primitive criminal in the context of a general typology of international criminals previously developed by the author. This type of criminal is prevalent on the African continent and in a number of Third World countries. An emphasis is placed on the unique personality traits of these criminals, in particular their inherent animism, spiritualism, and often lack of literacy. Particular attention is paid to the oral type of culture in which the primitive criminal is immersed. In turn, this leads to the tangible impact of rumors, legends, neighbors' messages, etc., on his consciousness, which often serves as a breeding ground for the formation of an internal readiness to commit international crimes. The article analyzes the practice of the International Criminal Tribunal for Rwanda in the Media case, during the consideration of which the Trial Chamber concluded that the actions of management of the “Radio des Mille Collines” contained indicators of incitement to genocide. The fate of S. Bikindi, a popular singer in Kinyarwanda whose songs were often broadcast on the radio during the genocide of 1994 and who was sentenced to a long prison term, is typical. Separate attention is devoted to the controversial issue of recognizing “cultural defense” as a new basis for exemption from criminal liability. The article notes that community justice, officially recognized in several countries in Africa and Latin America, and in particular the gacaca courts), is able to remove the contradiction between modern justice, built on European or Anglo-Saxon models, and the primitive criminal’s personality, formed in a national-cultural environment. It is an archaic form of justice administered not by a professional judge in the civil service but by the most authoritative representatives of the community, temporarily serving as informal judges. Trials in international criminal courts and tribunals where the “cultural defense” was used are analyzed, as are the legal principles formulated in these proceedings. The author concludes that from the point of view of substantive international criminal law, the actions of primitive criminals are most often treated as direct (and joint) perpetration, since it is by their hands that such atrocities are committed.
JUS GENTIUM
FAILURE TO SERVE A FOREIGN PARTY TO A COURT PROCEEDING: REGULATION AND LEGAL EFFECT
If evidence of successful notification of court proceedings to a foreign party is not presented in court, the judicial proceeding has to be postponed until this evidence is received. Postponement of trial results in delaying the judicial protection of rights. Sanctions and restrictions applied by countries in modern international relations create may situations where the service of notice to a foreign party can take a long time or be impossible in principle. The article contains an analysis of the subjective and objective factors in the practice of Russian and foreign courts which obstruct transnational service of notice. Taking each of these factors into account, the article reviews existing international rules, including the Hague Convention of 1965 and the Russian Federation’s international agreements on legal means for overcoming the failure to serve notice. The authors conclude that the Hague Convention of 1965 provides the most efficient mechanism to overcome failure of service caused by either subjective factors regarding the party to be served or objective reasons. By contrast other international treaties on legal assistance on civil matters contain less detailed wording, either not regulating the effect of failure of service at all or regulating the issue indirectly. But the lack of unambiguous regulation of this issue in international law does not mean it is absent in practice. There are various methods applied by courts to fill this regulation gap, ranging from repeated postponements of trial to service of notice in ways not provided by treaty or national legislation. These unsystematic solutions cannot be considered effective ways to fill the regulation gap. In search of effective ways the authors evaluate the possibility of simplified standards of service of notice using contemporary technology (for example, by email or SMS). The authors conclude that these methods might be appropriate only as provided for by treaty and only if certain conditions are met. Alternatively, the authors propose solutions analogous to those in the Hague Convention of 1965 which would be based on existing Russian procedural norms.
JUS COMMUNE
RULE OF LAW AS CONSTITUTIONAL IDENTITY OF THE EUROPEAN UNION
The article aims to deconstruct the mechanism of the “rule of law” concept in the legal order of the European Union (“EU”). The study is a critical assessment of this concept across several political and legal dimensions. First, it analyzes the circumstances that contributed to the introduction of the “rule of law” mechanism into the EU’s legal framework. Second, it critically evaluates the actions of key stakeholders in this process, identifying their political goals and aspirations. Third, it assesses this new legal concept in the context of the EU’s legal tradition and the challenges it faces. Finally, the article makes conclusions regarding the ability of the “rule of law” mechanism to address the large-scale political and legal challenges facing the EU. The study refers to a wide range of sources in reconstructing the social reality in which the “rule of law” legal tool was formed. It introduces information, facts, and circumstances not included in classic academic discourse. It also critically evaluates the deeply ideological legal construct of the “rule of law.” Unlike standard works on this topic, it demonstrates how a classical democratic legal institution is used for political purposes and how such an approach can change the essence of the “rule of law”. Its conclusions significantly impact the content of the “rule of law” concept in the current political conditions of the development of the EU, which continues to rely on law as a tool for integration. However, given the deteriorating conditions of political interaction within the EU, the content and application of the “rule of law” concept increasingly deviate from classical legal principles, toward political necessity. This, along with the problems of interinstitutional interaction within the EU, suggests an ongoing erosion of law as an instrument for regulating social relations in legal systems which are well-developed and have a rich legal tradition.
HISTORIA
DISPUTE BETWEEN IRAN AND THE UNITED ARAB EMIRATES ABOUT ISLANDS IN THE STRAIT OF HORMUZ: PROBLEMS OF LEGAL QUALIFICATION
The dispute between Iran and the United Arab Emirates (UAE) over the ownership of the islands of Abu Musa, Greater Tunb, and Lesser Tunb is the focus of a broad historical debate, civilizational and ideological confrontation, geopolitical struggle, and economic competition. In addition, it affects some of Russia’s interests. The article reviews the history of the dispute, the positions of the parties, approaches to its qualification and puts forward proposals aimed at its settlement. Iran’s position relies on uninterrupted possession of the islands for several millennia, British documents and maps which show tacit acquiescence to its title, and the cession of the islands by Britain in 1971 in accordance with an oral arrangement. It also contests the validity and legitimacy of Arab possession of the islands in the 19th and 20th centuries. The UAE considers Iran’s claims unfounded, citing the peaceful occupation of the islands by the Arab Al Qasimi clan in the 18th and 19th centuries and the concept of consolidation of historical title. The UAE’s claims appear more justified in the light of modern international legal theory and the approaches developed by international tribunals. Indeed, territorial titles may be based on effectivités and acts committed during colonial rule; references to facts prior to that rule, by contrast, are irrelevant. Alternative approaches to qualification which ignore the impact of colonial rule and give legal weight to historical arguments and anthropological evidence may lead to different results. Another approach to resolving the dispute is based on the principle of contiguity (proximity), which could provide a basis for compromise and possibly guarantee peace and order in this part of the Persian Gulf. In this case Iran would claim the Tunbs and the UAE would claim Abu Musa. The political landscape in Asia does not always correspond to the political landscape in Europe, which creates a need to develop new legal approaches to resolving territorial disputes. For Russia, this task is not only theoretical but also practical: the potential for conflicts which emerged after the USSR collapsed is far from having been exhausted.