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CONTENTS
SCRIPTORIUM
JUSTITIA
THE DOCTRINE OF ABUSE OF RIGHTS IN INTERNATIONAL LAW
Despite the fact that many states, courts and scholars consider the prohibition of abuse of rights to be a general principle of law, the status of this doctrine in modern international law is the subject of intense discussions. The prohibition of abuse of rights has become firmly established in modern international law as a contractual norm of a number of universal and regional international treaties. The above-mentioned practice of international courts such as the ICJ, the International Tribunal for the Law of the Sea, and the ECHR, distinguishes between abuse of rights and abuse of process and provides for different legal consequences for them. In the case of abuse of rights, a court or tribunal must refuse to satisfy the claims based on this right, and in the case of abuse of the process, such claims are not accepted. However, all of these courts do not believe that abuse of rights leads to international responsibility. In practice, international courts and tribunals have shown varying degrees of willingness to apply the prohibition on abuse of rights. On the one hand, the ICJ and the International Tribunal for the Law of the Sea have been notably restrained in this regard. On the other hand, the ECHR (despite its statement that the prohibition should only be applied in exceptional circumstances) has shown a tendency towards an expansive interpretation of the relevant article in the Convention. It does not seem that the prohibition of abuse of rights is a general principle of law that stems from national legal systems, but it may, under certain circumstances, become a general principle within the international legal system. On the other hand, the recognition of the prohibition of abuse of rights as a general principle of EU law by the Court of Justice of the European Union provides grounds for qualifying the prohibition as a regional general principle of law in light of Conclusion 12 of the Draft Conclusions of the International law Commission.
JUS COMMUNE
THE UN INTERNATIONAL LAW COMMISSION ON REGIONAL GENERAL PRINCIPLES OF LAW: AN ATTEMPT TO RECONCILE UNIVERSALISM AND REALITY
Since the term “general principles of law recognized by civilized nations” appeared in the Statute of the Permanent Court of International Justice in 1920, there has been ongoing debate in legal doctrine regarding its meaning, how it is formed, identified, and its scope of application. The abundance of literature devoted to general principles of law speaks more to the diversity of existing opinions than to the existence of an established consensus on these issues, including the question of the existence of general principles of law with a limited territorial scope of application (“regional general principles of law”) and their role in contemporary international law. Unfortunately, the approach of the UN International Law Commission, reflected in the Draft Conclusions on General Principles of Law 2025, does not provide a clear answer to the question of the existence of regional general principles of law, although it does not exclude the possibility of their emergence. At the same time, recognition at the universal level of the existence of regional general principles of law (the most striking examples of which are the general principles of European Union law and the formation by the EAEU Court of the principles of EAEU law) may have a direct practical and, moreover, positive effect for the Commission itself, comparable to the recognition by the Commission several years ago of local international customs. Regional general principles of law may be applicable to disputes having regional significance in jurisdictions with both universal and regional coverage. Furthermore, they can be used to fill gaps in regional international treaties, as well as for the purposes of their interpretation. The process of establishing the regional general principles may differ from the order applicable to universal general principles of law, since courts or states insisting on their existence and application must first prove their local specific character. All this shows that despite the Commission’s obvious intention to fully support a universal approach in international law, it would be counterproductive for the Commission’s authority not to notice the reality emerging at the regional level in terms of regional principles, particularly in terms of recognition by states, as well as national and international courts, of the results of the Commission’s work on general principles of law.
OPINIO JURIS
JUS COGENS: HOW TO IMPROVE THE WORLD (YOU WILL ONLY MAKE THINGS WORSE)
This article traces the evolution of the concept of jus cogens from its initial emergence in international legal discourse as an abstract novelty to its present-day articulation through specific substantive norms. The analysis highlights how this category has been shaped by diverse intellectual traditions, ranging from natural law and positivist approaches to critical, sociological, and postcolonial perspectives. Particular emphasis is placed on the work of the International Law Commission, which in 2022 proposed a “non-exhaustive list” of jus cogens norms. While the list has provided a useful reference point for both institutional and doctrinal debates, it has also created challenges: there is a risk that it may be treated as a closed canon, resistant to further development, while excessive reliance on it could narrow the flexibility of the concept and obscure its systemic role. Methodologically, the study draws on historical and doctrinal analysis, institutional practice, and the jurisprudence of international courts — most prominently the International Court of Justice — as well as on state practice where the peremptory character of norms has been explicitly invoked. The article also considers social and cultural perspectives, regional initiatives, and alternative forms of justice that give weight to the experiences of victims and affected communities. Additional focus is placed on comparative perspectives: national legal traditions — civil law, common law, socialist, and others — have profoundly influenced the interpretation of peremptory norms and continue to shape contemporary understandings of jus cogens across different contexts. The authors argue that jus cogens has consolidated its role both as a structuring category of international law and as a cornerstone of the international legal order. It performs protective and preventive functions, ensuring that fundamental values are insulated from derogation. At the same time, the long-term viability of the concept depends on its openness to renewal in the spirit of “pluralist universalism”, which requires balancing universal claims with recognition of diverse legal traditions and historical experiences. By contrast, attempts to instrumentalize jus cogens as a universalizing device for “improving the world” without sufficient grounding in practice and consensus risk producing counterproductive outcomes — an outcome aptly captured in the ironic title of this article.
JUS CRIMINALE
ARE THE FUNDAMENTAL PRINCIPLES OF CRIMINAL RESPONSIBILITY OF INDIVIDUALS GENERAL PRINCIPLES OF LAW?
PART 1: THE PRINCIPLE OF NULLUM CRIMEN SINE LEGE (“NO CRIME WITHOUT REFERENCE TO IT IN THE LAW”)
The institution of individual criminal responsibility has a number of principles that characterize and clarify its content, both at the domestic and international levels. In particular, they include such principles as nullum crimen sine lege (“there is no crime without reference to it in the law”), non bis in idem (“not twice for the same thing”) and nullum poena sine lege (“there is no punishment without the law”). The importance of these principles is great, but their one-sided idealization has led academic research to the emergence of the conclusions that such principles have the same content within any legal system, and therefore are general principles of law, in the sense of Article 38(c) of the Statute of the International Court of Justice. However, the modern consolidation of the content of these principles in the criminal law of different states and in international law does not give grounds to agree with this statement. In this article, the main reasoning to support this point is focused on the principle of nullum crimen sine lege, according to which an act is only considered a crime of at the time it was committed, it was already defined as such by the criminal law of the state. The fact is that the definitions of crime (and the grounds for criminal liability) that exist so far in the national law of the vast majority of states come into direct conflict with the recognition of international law’s ability to independently criminalize certain acts of individuals. As a result, an act that is not a crime according to the criminal law of the given state may turn out to be a crime. Since the general principles of law in their content must coincide with each other in both national and international law, the article concludes that at the present stage the principle nullum crimen sine lege cannot be considered as one.
JUS GENTIUM
PROBLEMS OF LEGAL JUSTIFICATION OF THIRD-PARTY COUNTERMEASURES IN CONTEMPORARY INTERNATIONAL LAW
This article examines one of the most controversial institutions of contemporary international law — third-party countermeasures employed by states in response to violations of erga omnes obligations. The central problem lies in the absence of clear legal regulation and the ambiguity of Article 54 of the Articles on State Responsibility for Internationally Wrongful Acts, which contains a compromised saving clause. The author analyzes the conceptual foundations of the institution, its historical evolution from classical reprisals to modern forms of coercion, and critically evaluates the work of the International Law Commission. The study examines key decisions of the International Court of Justice, including the Barcelona Traction and Nicaragua cases, which laid the foundations for modern understanding of erga omnes obligations. The methodology is based on systematic analysis of international legal sources, state practice, and doctrinal positions incorporating elements of Third World Approaches to International Law (TWAIL). The author applies the strict two-element test for customary international law formation, examining both objective state practice and the subjective element of opinio juris. Research findings demonstrate the absence of international consensus regarding the legitimacy of third-party countermeasures. State practice is characterized by selective application and terminological uncertainty, with states deliberately avoiding legal terminology in favor of political justifications such as sanctions or restrictive measures. Analysis of non-Western state positions within the UN framework reveals large-scale opposition to unilateral coercive measures, confirmed by General Assembly voting statistics. The geographical asymmetry in application — exclusively by developed Western states against developing countries — undermines claims of universal legal acceptance and exposes the political nature of the institution. The author concludes that third-party countermeasures represent a transitional phenomenon reflecting the crisis of traditional international legal enforcement mechanisms rather than an established legal norm. Effective protection of universal norms is only possible through genuinely universal institutional mechanisms based on state equality and objective legal criteria.
LEX MERCATORIA
THE USE OF THE DISCOUNTED CASH FLOW METHOD FOR CALCULATING COMPENSATION IN INVESTMENT DISPUTES
The issue of determining the amount of compensation in the settlement of investment disputes between foreign investors and the states receiving investment is caused by the sharp increase in the amounts awarded to investors based on the results of dispute resolution in the last decade, as well as the lack of predictability and consistency in the calculation methods used by arbitrators. Often, the need to pay compensation to an investor places a heavy burden on the budget of the respondent states, having a significant impact on their finances, as well as exacerbating the overall debt of developing and least developed countries. A detailed analysis of this trend in the overall inflation of arbitration awards shows that this is a multifactorial process that cannot be explained solely by global inflation, an increase in the average size of investment projects, or growing amount of damages claimed by investors. The rapid increase in the amount of compensation, in our opinion, is largely due to the use by the arbitrators of the discounted cash flow — a valuation method that estimates the value of an investment based on its expected future cash flows (as a result of the company’s activities during full implementation of the investment project). It is the most popular method among the applicants and arbitration tribunals. This trend, in turn, also encourages the applicants to make excessive demands with the help of new methods of calculating income and discount rates that are difficult for most arbitrators to comprehend. At the same time, it is noted that the methods of damage assessment applied by the arbitration tribunals in investment disputed differ from those used in other branches of international law, and the discounted cash flow method itself remains the most difficult to use, since it requires forecasting and, consequently, making numerous assumptions. The current situation has put the states in front of the need to adequately assess it and develop a response to this approach of the arbitral tribunals. The UNCITRAL Working Group III on the Investor-State Dispute Settlement Reform served as such a platform, where attempts were being made to limit the use of the discounted cash flow method by arbitrators, despite the fact that the practical implementation of these proposals remains problematic.
FORUM INCOGNITUM
THE HUMAN RIGHTS MECHANISM OF THE COMMONWEALTH OF INDEPENDENT STATES: A CRITICAL ANALYSIS OF THE HUMAN RIGHTS COMMISSION’S WORK
The establishment of the CIS Commission on Human Rights in 2023 marks a notable development in the Commonwealth of Independent States’ institutional landscape, particularly in the realm of human rights. This article provides a critical analysis of the Commission’s formation, objectives, and potential impact. It explores the rationale behind selecting the CIS as a platform for fostering dialogue on human rights among Eurasian states, highlighting the geopolitical and strategic motivations that underpin this initiative. The analysis is set against the backdrop of the CIS’s ongoing identity crisis and questions surrounding its relevance in the post-Soviet space. Despite the organization’s structural weaknesses and the uneven commitment of its Member States to democratic norms, the creation of the Commission is examined as a potential catalyst for revitalizing the CIS and enhancing its normative authority at both regional and international levels. However, the article argues that the Commission’s capacity to function effectively is currently hampered by significant limitations. These include a narrowly defined mandate, lack of enforcement mechanisms, and an overarching dependence on the political will of Member States. The article offers a series of recommendations aimed at strengthening the institutional framework of the Commission. These include expanding its powers, institutionalizing civil society participation, and prioritizing the adoption and implementation of the CIS Human Rights Convention as the foundation of the Commission’s work. Emphasis is placed on the importance of transparency, accountability, and cooperation with non-governmental organizations to increase the body’s legitimacy and operational effectiveness. Ultimately, the article concludes that without meaningful structural reform and political commitment, the CIS Commission on Human Rights is likely to remain a symbolic entity, one that lacks the authority and resources to meaningfully address human rights challenges within the region. Moreover, maintaining the status quo will lead to the new body being perceived as ineffective and formal, which in turn could undermine trust in it both among citizens and among states and international organizations.
JUS ECOLOGICUM
GREENING AVIATION: HOW DOES THE ECOLOGIZATION OF THE REGULATION OF AIR SERVICES IMPACT INTERNATIONAL AIR LAW?
СThe article explores the influence of the environmentalization of legal frameworks governing air services on the evolution of contemporary international air law. It focuses on the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), developed by the International Civil Aviation Organization (ICAO), and its correlation with the norms of international environmental law. The primary aim is to elucidate the transformative effect of environmental initiatives on the traditional principles of international air law, as well as to identify emerging normative conflicts and institutional divergences. The study sets out to analyze the fragmentation of international law in the context of CORSIA, determine the legal force of ICAO standards, and assess the interrelation between regional and global regulatory mechanisms. The methodological basis of the study is comprised of formal legal and comparative legal methods. A systemic approach was applied in the analysis of doctrinal sources, as well as the practice of international organizations and judicial bodies. Particular attention is devoted to the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change, which clarified the legal force of the Annexes to the Chicago Convention. The line of argumentation is structured around three key questions. First, the author examines the interaction between international air law and environmental law, noting that despite efforts at harmonization, CORSIA gives rise to normative conflicts-particularly with respect to the principles of common but differentiated responsibilities and non-discrimination. Second, the legal status of CORSIA as an Annex to the Chicago Convention is analyzed. Third, the study addresses the conflict between the European Union’s environmental initiatives and the universal norms of international air law, most clearly manifested in the Judgment of the Court of Justice of the European Union regarding the extraterritorial application of the EU Emissions Trading Scheme in the aviation sector. Based on the results of the study, the author concludes that CORSIA represents a relatively successful attempt to strike a balance between the competing values of international environmental law and international air law. At the same time, its effectiveness will ultimately depend on the political will of individual states, as the Annexes to the Chicago Convention per se do not establish binding international legal obligations. Drawing on the analysis of the European Union’s environmental initiatives, the author observes that regional mechanisms for the environmentalization of air services may impose obligations that conflict with the universal norms of international air law. In this regard, the international community faces the challenge of harmonizing regional and universal mechanisms for reducing carbon emissions from civil aviation.