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CONTENTS
SCRIPTORIUM
OPINIO JURIS
FACIE PROFESSIONIS: ON THE “NEW” OLD ETHICS IN INTERNATIONAL JUSTICE
This article evaluates from a legal perspective the current mode of and prospects for regulating the professional conduct of participants in international judicial and arbitration tribunals (interstate, investment, commercial). Taking into account the increasing attention paid in recent years to the moral character of those in power, in the context of the revival of the so-called global “new ethics”, issues of professional conduct have acquired key importance. Considering the traditional leading role of international justice in promoting universal standards for the protection of human rights and for proper behavior of state officials, in countering unethical and unscrupulous behavior, and in the overall professionalization of the system of resolving the growing number of international and cross-border disputes, it is important to assess whether international jurisdictional bodies are themselves models of ethical behavior. There is a shortage of domestic research in this area. Having analyzed a number of well-known historical and fresh examples in the practice of international justice as well as the views expressed in foreign literature, the author comes to the conclusion that the professional ethical standards of conduct for judges, arbitrators, and representatives of the parties have not changed significantly over time, but the problem of actual compliance with these standards has become increasingly acute. Until now, there have been no universal and legally binding documents that comprehensively regulate the relevant issues, despite the fact that compliance with ethical standards for judges, arbitrators, professional representatives (government agents and external advisers), experts, and judicial personnel directly affects assessments of the validity of awards and their enforceability. Compliance also affects the credibility of the international dispute resolution system as a whole. As a result, the article concludes by considering, from the perspectives of legal, political, and other factors, possible models of regulation of the relevant issues at the global level, both in terms of form (i.e., their sources) and content (i.e., their approaches to the drafting of ethical rules), while also considering the interests of Russia as a participant in international processes.
JUS CRIMINALE
PROCEDURAL POSITION OF THE VICTIM IN INTERNATIONAL CRIMINAL JUSTICE
The article examines the phenomenon of the victim as a key figure, endowed with independent procedural status, in international criminal justice. The historical evolution of the normative consolidation of this status in national and international law is traced. The procedural rights granted to holders of this status in international criminal justice bodies are described in detail. The article reaches the conclusion that over time, the role of victims in legal proceedings conducted at the international level has decreased significantly. This change can be seen in, among other things, limitations on financial expenditures for victims’ legal representation. The practice of the permanent International Criminal Court is analyzed, as the Rome Statute creating it first provided for the procedural figure of the victim. These procedural rules are detailed in the Court’s Rules of Procedure and Evidence. In particular, Rule 86 lays down the so-called “general principle” that the Chamber, when making any decision or order, and other organs of the Court, when discharging their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses, and, in particular, children, elderly persons, people with disabilities, and victims of sexual or gender violence. In addition, these Rules regulate the procedure for the participation of victims in the proceedings. Data on the amount of compensation payments assigned based on the results of consideration of particular cases are provided. Their symbolic nature is evident in cases where they are insufficient to make amends for the harm caused to a person during an armed conflict. Nonetheless the very appearance of the victim on the international stage and his endowment with even limited procedural rights testify to the humanization of the world system. The article comes to the conclusion that, contrary to the popular perception of the International Criminal Court as a “court for victims,” in it the latter have a very limited range of procedural rights to defend their interests. This is reflected, among other things, by limitations on the expenses of legal representatives, as a result of which one lawyer or member of the Victims and Witnesses Unit might represent the interests of several hundred victims. The figure of a “victim with dual status” has also become widespread, that is, the victim also acting as a witness for the prosecution. This somewhat weakens the world community’s long-term efforts to ensure that victims of international crimes are recognized as victims.
JUS HOMINUM
APPLICATION OF THE HUMAN RIGHTS PROTECTION MECHANISM IN COPING WITH THE CLIMATE CHANGE PROBLEM
Global climate change, legally anchored as such in the 1992 U.N. Framework Convention on Climate Change and the 2015 Paris Agreement, is a comprehensive issue, resulting in the human rights abuse. However, from the international law perspective the link between them demands clarifications. This fact is backed up by recent initiatives concerning corresponding requests for International Court of Justice, International Tribunal on Law of the Sea and Inter-American Court of Human Rights to provide advisory opinions. Therefore, the authors set out to examine whether there is a legal causal link between violations of international state obligations under treaties dealt with the issues of climate change and human rights abuse. To achieve this goal, the authors analyzed the scientific explanation on the interconnection between climate change issue and fulfilment of human rights and its legal consolidation; identified the actual human rights protection legal mechanisms and their pressing problems. To be more precise, authors scrutinized a compliance procedure under the 2015 Paris Agreement, including its influence on national judicial practice in some jurisdictions, quasi-judicial human rights treaty bodies and judicial bodies of regional systems of human rights protection. The research reveals that there are several fields to be improved, namely, the determination of necessity to anchor specific obligations prescribing the greenhouse gases reduction to have subject matter for bringing governmental agencies before national courts. Moreover, it is necessary to enhance the efficiency of compliance procedure under the 2015 Paris Agreement by adopting successful practice from other international environmental treaties. Questions remain concerning necessity to control and monitor the enforcement of non-obligatory considerations issued by human rights treaty bodies, methods to determine direct causal link of state acts or omissions in terms of climate change and human rights abuse, as well as concretization of climate change victim status.
INTERNATIONAL COURTS AND THE WORLD OF WORK: HISTORY AND PROSPECTS
The article researches the activities of supranational judicial bodies claiming global jurisdiction in relation to their decisions on various labour issues. The focus of the article is the Permanent Court of Arbitration, the first global judicial body continuing to operate to this day; even more so the Permanent Court of International Justice, whose decisions played an important role in the protection and extension of the competence of the International Labour Organization (ILO); and finally the latter Court’s successor – the International Court of Justice, for which the international labour movement currently has high expectations in terms of the legal protection of the right to strike. In the case of the Permanent Court of Arbitration, the article deals with two cases concerning claims by trade unions against violations of the Global Framework Agreement – probably the only two cases in the Court’s labour practice to date. Advisory opinions of the Permanent Court of International Justice concerning various aspects of the work of the ILO and the acts it adopts, as well as their impact on the ILO, are then reviewed. Finally, the labour practice of the International Court of Justice is reviewed. Special attention is paid to trade unions’ initiative to refer the “dispute on the right to strike” to the International Court of Justice, with support by the Governing Body of the International Labour Office. One of the main topics addressed in the article is the courts’ practices regarding the participation of international organizations – especially international trade union associations – in court proceedings involving advisory opinions. Studying the practices of the “global” judiciary as to labour issues allows tracing of both the development of the judiciary itself and the procedures applied by them as well as the development of the “world of work”. The latter includes the development of the ILO and the system of international labour standards and also the development of global legal instruments which are at the disposal of the international trade union movement.
PROTECTION OF PERSONAL DATA IN THE AGE OF SURVEILLANCE CAPITALISM
One of the unique features of the capitalist economy is that it can turn literally anything into a source of profit. The invention of the Internet, with all the technologies that have arisen in connection with it, from it and in the name of it, has led to the emergence of a digital economy that effectively monetized personal data and made it the most valuable source of capital gains. In the post-industrial 21st century, a number of researchers began to call personal data “the new oil”. However, in the 21st century, the post-industrial society has managed to make another round of development, and the expression “data is the new oil” has become the subject of criticism of experts in the field of privacy and personal data protection. The article contains a deep analysis of the place of the institution of personal data in modern society of surveillance capitalism, both from a legal and social perspectives, and also formulates the authors’ approach to the potential of one of the most conceptually effective tools for managing personal data – the subject’s consent to personal data processing. The focus of the study is the institution of personal data in the era of surveillance capitalism in the applied, empirical and theoretical planes, and the goal is to determine a uniform approach to the place and role of this institution, taking into account the characteristics of surveillance capitalism and the decisions of international, regional (for instance, European Court of Human Rights, Court of Justice of the European Union) and national judicial authorities. Given the growing importance that the institution of personal data is gaining in legal theory and practice, this article contains elements of both empirical and theoretical nature, with the expected predominance of the former. The methodological basis of the research includes logical, formal legal and grammatical methods, as well as comparative legal and functional approaches. The latter contributes to the development of a sustainable practice-oriented approach to understanding of the place and role of the legal institution of personal data, based on the de facto functioning of this institution in general and its interaction with the ideology of surveillance capitalism in particular.
JUSTICIA
THE INVISIBLE PIECE OF THE PUZZLE: THE ROLE OF INDIVIDUAL OPINIONS OF JUDGES IN THE PRACTICE OF THE INTERNATIONAL COURT OF JUSTICE
The system of modern international justice has a firmly rooted norm according to which judges have the right to attach their individual opinion to a judicial act, in which they can express solidarity with the position of the majority, or provide an alternative point of view. Individual opinions of judges do not often become the subject of scientific discussions, but the few existing works show that international lawyers assess this phenomenon ambiguously. The article attempts to comprehensively analyze this phenomenon on the example of the practice of the International Court of Justice. The paper critically examined the arguments of opponents of the institute of individual opinions, namely their impact on the legitimacy of decisions and independence of judges. The author also considered approaches to determining the legal nature of individual opinions of judges as parts of judicial decisions and teachings of the most highly qualified publicists in the field of public law. The study has led to the conclusion that the special features of judges’ opinions do not allow to classify them into any of these legal categories. The main focus of the paper was on the practical significance of the opinions of the judges of the International Court of Justice. Thus, in the article it was demonstrated on the example of a number of judicial decisions that such opinions allow to clarify the substantive content of judicial acts. The paper finds that the judicial opinions attached to a judgment help to strengthen the legal reasoning of the judgments themselves (due to the parallel nature of their drafting) and provide valuable material for the academic community. At the same time, the author does not share the position that individual judges’ opinions can be qualified as “agents” of the progressive development of international law.
JUS GENTIUM PRIVATUM
DEVELOPMENT OF PRIVATE INTERNATIONAL LAW IN THE FIELD OF THE INTELLECTUAL PROPERTY: EXPERIENCE OF INTERNATIONAL HARMONIZATION
The international treaty unification of private international law in the field of intellectual property remains problematic for more than half a century. Unresolved disagreements among states on conflict-of-laws issues, international jurisdiction, the recognition and enforcement of foreign judgements in civil and commercial intellectual property disputes, which have arisen in the development of instruments for the international unification of private international law, have served as an impetus for studying the interaction of private international law and intellectual property law at both vertical and horizontal levels. At the international level, the development of private international law in the field of intellectual property has shifted towards a method of harmonization. This article examines the experience of international intergovernmental and non-governmental organizations and the expert community in international, universal and regional harmonization of private international law within the intellectual property domain. Special attention is given to the study of non-state regulators, a comparative legal analysis of theoretical foundations and principles governing creation, structure, scope, functional purpose and content of private legal codification specially designed for application in the field of intellectual property. The research results in the following conclusions: in the regulation of private relations concerning intellectual property, which are complicated by a foreign element, there is a transition from fragmented regulation of private law questions to the complex and systemic regulation of the main categories of legal relations in the field of the intellectual property. This includes relations of intellectual rights in rem, contractual obligations and non-contractual obligations, arising from infringement and unfair competition, and extends to both the substantive aspects, addressing conflicts of laws, and procedural aspects. The development of private international law in the field of intellectual property reflects a broader trend in private international law towards specialization in conflict-of-laws and procedural regulation of cross-border relations. The formulation and application of choice-of-law rules and international jurisdiction rules are based on the close link between private relationships and the law of respective states. The identification of a such a link involves consideration of the conflict-of-laws interests of specific and potential parties to the legal relationship, societies and states. Additionally, significant conflict-of-laws values are carefully weighed in this process as well.
PRAXIS
EX OFFICIO
GUIDELINES ON INTELLECTUAL PROPERTY AND PRIVATE INTERNATIONAL LAW (“KYOTO GUIDELINES”)
Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”). URL: https://www.ila-hq.org/en_GB/documents/kyoto-guidelines-res-6-en-final-as-adopted-on-13-december-2020 (accessed: 24.11.2023).
Resolution 6/2020. Adopted by the Committee on Intellectual Property and Private International Law at the 79th Conference of the International Law Association, held in Kyoto, Japan, November 29 – December 13, 2020.