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CONTENTS
PRAXIS
RES JUDICATA
EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE CHAMBER JUDGMENT OF 7 JUNE 2022 IN THE CASE OF TAGANROG LRO AND OTHERS V. RUSSIA (APPLICATIONS NOS. 32401/10 И 19 OTHERS)
In Taganrog LRO and Others v. Russia (applications nos. 32401/10 and 19 others), the European Court of Human Rights examined the complaints of hundreds of Jehovah’s Witnesses’ religious organizations and their individual members regarding the application of the Russian Federation’s anti-extremist legislation against them. In its judgment, the European Court criticized the definitions of “extremism” and “extremist activities” in the Russian law, referring to their overly broad wordings which allow declaring extremist any actions or statements, even those devoid of any hatred or animosity. The European Court also noted that proclamation of the superiority of one’s religion over others’, as well as non-violent calls to convert, are regular aspects of the right to religious freedom. The European Court found that the decisions mandating dissolution of the Jehovah’s Witnesses’ religious organization in Russia were not based on law and deprived their members of the right to practice their religion in community with others and to carry out their religious activities. It also held that Russian courts’ decisions to declare Jehovah’s Witnesses’ religious publications extremist and hold some of their members administratively liable for their dissemination were based on a formalistic approach and in violation of the applicants’ right to impart information. The European Court made similar conclusions about complaints against rescission of the permit for distribution in Russia of magazines published by the German society of the Jehovah’s Witnesses and against blocking access to their international website, noting that the Russian authorities had deprived the applicants of any opportunity to correct the alleged violations. The European Court also found a violation of the right to freedom of religion of those applicants who had been convicted of carrying out or taking part in the activities of an “extremist” organization after the Jehovah’s Witnesses had been banned in Russia, holding that the domestic authorities had de facto deprived the applicants of their right to manifest their religion in community with others. The confiscation of the Jehovah’s Witnesses’ real property and their banned religious publications was found by the Court to violate the right to peaceful enjoyment of private property due to its incompatibility with the lawfulness requirement, while the seizure of other religious literature and personal property of the individual applicants was found to breach Article 1 of Protocol no. 1 due to the lack of any legal grounds for it. Moreover, the European Court decided under Article 46 of the Convention that the respondent State had to discontinue all criminal proceedings instituted against the Jehovah’s Witnesses and release those of them in detention.
SCRIPTORIUM
JUS HOMINUM
PROTECTION OF HUMAN RIGHTS STRICTO SENSU BY THE COURTS OF INTEGRATION ASSOCIATIONS: EXPERIENCE OF COMPARATIVE ANALYSIS
The relevance of this article is due to the growing potential of economic integration organizations, whose competence has gradually grown far beyond pure economic issues, to address the problem of protecting fundamental rights. The reason for the need to develop the panoply of human rights by integration associations is that market freedoms cannot be realized where citizens and entrepreneurs do not feel protected. Therefore there is a need to ensure security and legality within the area covered by an organization of economic integration. The Eurasian Economic Union, whose founding treaty was signed in 2014, is only at the beginning of this path. The realization of its competence in this direction would not only fulfill the potential of this integration project, but also fill the gap formed after the withdrawal of the Russian Federation from the European system of human rights protection. It should be noted that the protection of fundamental rights is much more effectively achieved by integration associations than by intergovernmental cooperation, which is based on the promotion of respect for human rights without any real tools for their protection. The methodology adopted by classic international organizations is called the “discursive method” in this article, since within such organizations human rights are often perceived only as an occasion for didactic discourse. At the same time, in many economic integration organizations there is a court which often plays a significant role in integration building and carries out an evolutionary (and sometimes creative) interpretation of the organization’s law. The scope of this study is deliberately limited to the protection, by courts of integration associations, of human rights stricto sensu, i.e., the protection of those rights that do not directly follow from the integration associations’ founding agreements and are not economic in nature. These rights come to be an organic continuation of the founding agreements and other acts of organization while simultaneously following their own development trajectory.
DIALECTICS OF INFORMATION PRIVACY AND INFORMATION SECURITY
Information privacy is the protection of personal data, which is the foundation of privacy itself. Information privacy and information security are two concepts that constantly interact with each other. The relationship of the two is dialectical and presents a dilemma that does not have an evident legal solution but requires a search for balance. In the most controversial cases this search is done by supranational courts. The correlation of information privacy and information security is similar to the relationship of private and public spheres which mutually complement each other and demonstrate by their equilibrium the harmonious development of citizen, society and state. In Russia the grounds for information security of citizen and society arose in 1991 with the advent of the citizen’s right to private life. Before that only the state had information security. This new approach to the understanding of information security demonstrates that the citizen now has an active role in the information space. The fragile state of international information security and the lack of information security of citizen, society and the state in modern conditions have become powerful incentives for the development of information law, scholarship, and theory. At the same time, strengthening information security, in the context of active technological and informational development, can narrow the boundaries of citizens’ information privacy. This gives rise either to an incentive to abandon private life and the protection of personal data generally (referred to as information “post-privacy”) or to an incentive to excessively protect information privacy. Both phenomena testify to the low level of existential security of citizens and the need to find a balance between private life and the objective and subjective aspects of security. The author reviews decisions of the ECtHR and the Court of Justice of the European Union, showing their role in strengthening the national information security of the EU; explores the approaches of the ECtHR to understanding security, the right to privacy and the right to self-determination; and analyzes American and the Russian court decisions influencing their definitions of the right to privacy and the right to protection of personal data. The author concludes that the “death of private life” is associated with a crisis of self-determination and self-identification of the subject, caused by informatization and by placing an economic value on information. This crisis, in turn, stimulates development of the objective side of information security, making it possible to strengthen the subjective side of existential security. The author posits that if citizen and society have a stable subjective side of existential security, the right to privacy will be reborn.
JUSTICIA
PROVISIONAL MEASURES IN REGIONAL COURTS OF HUMAN RIGHTS: A COMPARATIVE ANALYSIS
This article is a comparative legal analysis of the regulatory framework and practice of applying provisional measures by regional human rights courts – the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights. It notes that despite the considerations expressed about an ongoing convergence of the approaches of these courts regarding provisional measures, these approaches are strikingly different in all three courts. This can be explained by the fact that they were created by different international treaties with different State parties and varying degrees of detail on the issues of provisional measures. In addition, the practice of applying provisional measures is influenced by factors such as the duration of activity and the authority of each court, as well as the general political and legal contexts in which these courts operate and the specific context in which a decision about provisional measures is made. Because of this, in practice there is an evident pluralism of these courts’ approaches to such issues as the goals and criteria for the application of provisional measures, the inseparability of the connection of provisional measures with the main case under consideration by the court, and the legal characterization of non-fulfillment of provisional measures. In addition, regional human rights courts – unlike, for instance, investment tribunals and the International Tribunal for the Law of the Sea – do not apply in their practice the plausibility criterion developed by the International Court of Justice, nor do they apply the fumus boni iuris criterion used by the Court of Justice of the European Union. All this increases the risk of fragmentation of international law, not only because of human rights courts’ competing interpretations of similar norms of international law and conflicting decisions, but also because of these courts’ inconsistency and lack of uniformity when ordering provisional measures.
UNKNOWN “SANCTIONS WAR” AND THE POSSIBILITIES OF INTERNATIONAL JUSTICE
The article examines the judicial strategy chosen and successfully implemented by Qatar for challenging in international courts the unilateral sanctions imposed against it by a group of countries. It notes that instead of one dispute over Qatar’s implementation of the Riyadh Agreements, everything was “sliced” into smaller disputes over various sectoral international agreements, which seems to be the only correct approach, given the current state of international law and international justice. However, this approach also has quite obvious risks because of the possibility of various conflicting judgments. Qatar has used international court proceedings as a means of putting pressure on States that have imposed restrictions against it in order to force them to lift their restrictions. This strategy has paid off. At the same time, Qatar’s judicial “sanctions” war has highlighted in a new way some of the nuances and problems of both specific courts and international justice in general. First of all, the departure of the International Court of Justice from its earlier practice of adhering to the positions and interpretations made by human rights bodies looks unusual and inexplicable. This has caused criticism from representatives of the academic community, who reproached the Court for missing an excellent opportunity to once again consider the issue of its interaction with human rights treaty bodies, leaving open the question of who should play the leading role in interpretation of the Convention. Additionally, it should be noted that all the international judicial bodies involved in the legal proceedings initiated by Qatar evaded an assessment of the underlying dispute – whether Qatar actually violated the Riyadh Agreements and whether the actions of States that imposed sanctions were legitimate and proportionate as countermeasures under modern international law on a State’s responsibility. Of course, Qatar could be blamed for forum shopping but, strictly speaking, this strategy is not prohibited by international law. Nevertheless, Qatar’s experience in applying to various international courts and tribunals encourages and will encourage other States to resort to international law to resolve conflicts.
JUS GENTIUM
NOT FINAL AUTHORITY: PRINCIPLES OF INTERNATIONAL LEGAL POLICY OF STATE REGARDING INTERNATIONAL JUSTICE
Although States’ conduct in international court proceedings may vary, some theories suggest there is a common rational basis behind these different practices. The article suggests considering the international legal policy of a State as this assumed rational basis. The concept of the international legal policy of a State considers international law to be the result of active coordination of States’ sovereign wills. According to this concept, States participate in the development of international law strategically, creating special policies in relation to international law. The conduct of these policies is subject to the strict principles of the process for legitimizing the positions asserted by a State in international law. By pursuing its international legal policy, a State influences the content of international law by initiating the adoption of new norms, agreeing to or rejecting proposals of other States, and offering its own interpretation of international legal norms and law enforcement practice. In reliance on the identified general patterns of the international legal policy of a State, the article develops the idea of international legal policy in relation to international justice. The problem with this policy is that the submission of an international dispute to international judges limits the active role of the State on the relevant issue. Without wishing to receive a negative opinion from international judges about the outcome of their efforts to uphold their legal position, States are wary of judicial settlement of their international disputes. A State can use legal instruments to limit involvement of independent, qualified lawyers and international adjudicators in dispute settlement. The decisive factor in a State’s attitude to international justice in a particular case is how international litigation and its outcome might affect the State’s ability to assert its legal policies in international law. Thus, various decisions and actions of States in relation to international justice are subject to the specific logic of their international legal policies. Therefore the actual problems of international justice, such as incidents of “backlash” against international courts, should not be seen as autonomous, but as part of a system of factors, including the principles of a State’s international legal policy.
HISTORIA
JUDGMENTS OF THE 19TH – THE FIRST HALF OF THE 20TH CENTURY: AN ANTI-MODERNIST ANALYSIS
This article is based on two considerations. According to the first, modern international law is a product of postmodernity, the main characteristic of which is the decline of metanarratives. In relation to international law, this means rejection of the liberal reform project which was its very essence at the turn of the 19th and 20th centuries. Instead there is a reorientation to the maintenance of bilateral relations, the consequent decline of the theory and the flourishing of judicial law (case law), which represents a set of autonomous and competing private (private law) narratives. The second thesis is that the progress of international law is not necessarily linear: it is quite possible that overcoming the crisis in which it finds itself today is feasible not through the development of existing ideas and institutions but through the resuscitation of ideas and political projects of the past. The anti-modernist analysis of international law should not be limited to a purely theoretical dimension but should be extended to law enforcement practices. This article discusses some of the original practices and approaches used by international courts in the 19th and first half of the 20th centuries that are not currently used by them. Among these are methods of working with facts (non-reduction) and methods of interpreting international treaties (e.g., priority of the intentional approach), regular judicial activism, ex aequo et bono dispute resolution, a combination of the judicial function with conciliation, the determination of legal regimes at the request of the parties, and the refusal to disclose motives. The author identifies some categories of cases, the share of which in the practice of international courts has decreased compared to the previous period, and explains the reasons for this. Among these are cases related to the exercise of diplomatic protection, clarification of special territorial regimes, interpretation of peace treaties, succession, and some others. The general conclusion is that international courts from the first half of the 19th century through the early 20th century were quite different from modern courts. First, they were greatly influenced by the natural law tradition (or its inertia); secondly, they used not only rational but also charismatic legitimation mechanisms; thirdly, they saw their task not only in the interpretation and application of international law but also in its development; and fourthly, they used a number of original approaches and practices. Some of these practices look archaic, while others could be rehabilitated and used by modern courts.