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CONTENTS
PRAXIS
RES JUDICATA
REVIEW OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS JURISPRUDENCE FROM 2021 TO 2023
This article reviews the most important cases decided by the Inter-American Court of Human Rights between 2021 and 2023. The Court has introduced important changes in the understanding of legal concepts of Inter-American law that will significantly impact the region. The authors of the article provide an overview of the jurisprudence of the Inter-American Court of Human Rights on the following range of issues: 1) transitional justice; 2) the right to the protection of human rights and the right to informational self-determination; 3) the right to a healthy environment; 4) the right to freedom of expression; 5) sexual and reproductive rights; and 6) the obligations of businesses to respect human rights irrespective of one’s sexual orientation. It is noted that the right to the protection of human rights and the right to informational self-determination have been recognized by the Inter-American Court of Human Rights for the first time. The Court also resolved the issue of the status of human rights defenders by including in this category not only lawyers, but also paralegals, technical and administrative staff, members of the press and political scientists. In addition, the Court has recognized the responsibility of the State for violations of the human right to a healthy environment, as well as specified the State’s obligations in relation to mining activities that may have an impact on the environment. In decisions on cases involving violations of the right to freedom of expression, the Inter-American Court of Human Rights has clarified the special nature of the protection to be guaranteed to journalists, in particular women journalists, and has also pointed out the special obligations of States to protect the rights of indigenous peoples in relation to their access to radio broadcasting. In the authors’ view, these and other landmark decisions presented in this review demonstrate that the Inter-American Court of Human Rights is committed to the progressive development of inter-American law. The categories of issues addressed by the Inter-American Court of Human Rights presented in this article indicate directions for the evolution of the system of regional human rights protection in the Americas.
PROTECTING HUMAN RIGHTS AND THE ENVIRONMENT: THE JUDGMENT OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS OF 5 SEPTEMBER 2023 IN THE CASE OF IVORIAN LEAGUE FOR HUMAN RIGHTS AND OTHERS V. CÔTE D’IVOIRE
In autumn 2023, the African Court on Human and Peoples’ Rights issued a decision in the case of massive human rights violations due to the disaster that occurred in August 2006. It is about a scandalous inci-dent of dumping highly toxic waste in the port city of Abidjan (Côte d’Ivoire) and its suburbs, which affected and continues to affect the health and lives of more than a hundred thousand people. At the same time, serious harm was caused to the environment as well. Despite the fact that the State is recognized as the primary subject of international human rights law, which is obliged to respect, observe and pro-tect human rights, the African Court on Human and Peoples’ Rights still examined in detail the scope of responsibility of a transnational corporation (Trafigura in this case) as a participant in international rela-tions that affects human rights. Although the Court did not equate the responsibility of a transnational corporation in human rights with that of a State, it nevertheless noted the need for further study of this responsibility and the possibility of a more effective response to it by human rights mechanisms. In highlighting the issue of ensuring the right to reparation for human rights violations in the proceedings on the merits of the case, the African Court reaffirmed its commitment to the understanding of this right by the UN bodies with considering the specific African legal approach. In this regard, the decision against Côte d’Ivoire is noteworthy, since the Court supported the applicants’ demand to oblige the State to apply all five forms of reparation: restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition. At the same time, the Court analyzed each of the forms of reparation and applied them to the circumstances of the case under consideration. Meanwhile, the African Court once again empha-sized the need for an individual approach to reparation for victims of human rights violations and a broader structural approach to preventing possible violations. The significance of this judgment of an interna-tional human rights judicial mechanism is due to the massive violations of human rights with the ongoing consequences and to the lack of access to national courts for most of the victims. In this case, the Court considered violations of the African Charter on Human and Peoples’ Rights as well as the 2003 African Convention on the Conservation of Nature and Natural Resources and the 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa.
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA IN SEARCH OF CONSENSUS: ADVISORY OPINION OF 21 MAY 2024 ON CLIMATE CHANGE
In a situation where international climate treaties do not establish firm commitments in the area of reducing greenhouse gas emissions, leaving significant room for state discretion in its actions, there is a growing need to fill the gaps in the regulation of measures to combat climate change, and international courts are now called upon to play an important role in this process. In 2023, the International Court of Justice and the Inter-American Court of Human Rights received requests for advisory opinions on climate change issues (from the UN General Assembly and from Chile and Colombia, respectively). The Interna-tional Tribunal for the Law of the Sea received a request on 12 December 2022 and on 21 May 2024 issued an advisory opinion on the obligations of states parties to the 1982 UN Convention on the Law of the Sea in the field of protecting the marine environment from anthropogenic greenhouse gas emissions. The request for an advisory opinion was filed by the Commission of Small Island States on Climate Change and International Law, established by two island states (Antigua and Barbuda and Tuvalu). The case took one and a half years to consider, and the text of the advisory opinion was approved unanimously by the judges. The tribunal noted that anthropogenic emissions of greenhouse gases are a pollutant within the meaning of the 1982 UN Convention on the Law of the Sea (Article 1, paragraph 4) and, accordingly, states have specific obligations to prevent, reduce and control pollution of the marine environment resulting from anthropogenic emissions of greenhouse gases. This article examines this advisory opinion in detail, noting its potential impact on the formation of legal positions of the International Court of Justice and the Inter-American Court of Human Rights, which will also issue advisory opinions on climate change in the near future.
SCRIPTORIUM
JUS HOMINUM
“UNINVITED GUEST”: TAXATION IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS
AND OF THE UN HUMAN RIGHTS COMMITTEE
Taxation is the most frequent and obvious intervention in the property of individual. Such an intervention may be accompanied by a deprivation of property and an infringement of other taxpayer’s rights: right to respect for one’s private and family life, one’s home, right to non-discrimination and others. Consequently, European Court of Human Rights in almost all of its tax cases has to respond to the same question: has the deprivation of possession been executed in the public interest, and has the balance between the protection of the public interest in securing the payment of taxes and applicant’s rights been upset. Such a weighing of different values is always a complicated task for the Court which has developed several tests applicable in almost all of the Court’s cases: firstly, the Court reviews lawfulness of the intervention while assessing not only the existence of the law applied but also its quality; secondly, the Court reviews whether the procedure was followed in the course of intervention; thirdly, it assesses the presence of the public interest and its materiality. With regard to the latter test, the Court established a rule that there is always a public interest assumed if a tax is established, and the states have a lot of discretion when it comes to deciding how to collect taxes. Obviously, the Court created rather effective tools to scrutinize state power, its ability to deprive people of their private property and assess the procedure of such a deprivation. For its part, the UN Human Rights Committee taxation jurisprudence is based on the two main articles: non-discrimination and a right to a fair trial, since the International Covenant on civil and political rights does not enshrine a guarantee to protect property rights. However, these legal grounds provide ample scope for the Committee’s involvement in reviewing tax enforcement practice. The author believes that approaches developed by the European Court of Human Rights and the UN Human Rights Committee should become determinant not only in the domestic tax agenda, but also in the de-velopment of international legal instruments in the framework of tax cooperation.
JUSTICIA
THE PARADOX OF THE PERSISTENT OBJECTOR RULE IN THE LAW OF INTERNATIONAL CUSTOMS
The article critically evaluates the importance of the rule of the persistently objecting State in the modern law of international customs, considering this rule as primarily an academic fiction, which has not yet been reflected in the treaty norms of international law. The inclusion of this rule by the International Law Commission in the final text of the Draft Conclusions on the Identification of Customary International Law (Conclusion 15) has given new impetus to discussions on the legal significance of this rule and its effectiveness in terms of the sufficiency of State practice in its application. The article questions the statement of the ILC, given in the comments to Conclusion 15, that this rule is “often used and recognized in both international and domestic judicial practice”, since in almost all the decisions of international and national courts cited in this respect by the ILC those courts limited themselves to a brief indication of the existence of this rule in the reasoning part of their decision. In addition, there have been no cases in international practice where a State has managed to avoid international responsibility for its violation of international custom by referring in its justification only to the persistant objector rule. The lack of rele-vant State practice regarding the application of the persistant objector rule gives sufficient grounds to assert that this rule has not yet become binding and is still in the initial stage of its transformation into a customary rule of law, awaiting both the creation of a stable and widespread practice of a significant number of States and their opinio juris. In this regard, the ILC’s Conclusion 15 can be considered not as a reflection of an already existing customary rule of international law, but as a de lege ferenda, that is, the ILC vision of what this rule should look like. The article concludes by admitting that this rule has a low probability of obtaining the status of a binding norm of international law.
WAYS AND MEANS OF LEGAL PROTECTION AGAINST NON-ENFORCEMENT OF DECISIONS RENDERED BY INTERNATIONAL COURTS AND ARBITRAL TRIBUNALS
There is an opinion among the layman (and among lawyers as well) that “international law is not law at all” or “international law does not work”. In support of these statements, those who express them refer, in particular, to the fact that in international relations there are no global policeman who could make sure that international obligations be fulfilled. This also applies to decisions of international courts and arbitral awards: in fact, there is no global agency of court marshalls/bailiffs. Nor is there a way to declare a state bankrupt if such state does not honor a judgment of an international court. However, the phe-nomenon of international law is that, as a rule, states that an international court or arbitral tribunal orders to undertake certain actions eventually do fulfill these decisions. True, sometimes it takes a very long time: for example, although the International Court of Justice found Albania liable for the explosion of British warships in the Corfu Channel back in 1946, Albania did not follow this judgment until the 1990s — i.e. until the fall of the communist regime in this country. In response, the United Kingdom withheld monetary gold captured in Albania by Italy during World War II, then taken from Italy by Nazi Germany, and finally from Germany by the UK. This article provides an overview of the remedies available in cases of non-enforcement of decisions of various international courts and arbitral tribunals. These remedies vary greatly, including in terms of their effectiveness. For simplicity, all such remedies can be divided into general and specific ones. In the process of enforcement of decisions of international courts and arbitral tribunals, the main tension arises between the law and politics, since the disputes themselves considered by these bodies have a pronounced political overtone.
FORUM INCOGNITA
MECHANISMS FOR COMPLIANCE WITH THE CONVENTION CONCERNING THE PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE (THE CASE OF THE SELOUS GAME RESERVE IN TANZANIA)
The object of the study is the tendencies of development of the World Heritage protection system at the current stage of its development. They are revealed by analysing the international legal practice of pro-tection of the Selous Game Reserve, which is a vivid illustration of the complex of problems that have developed in the system of World Heritage protection. The methodology of the research is based, first of all, on the classical methods of cognition developed in legal science: formal and logical analysis of the documents of the World Heritage protection system and their interrelation, as well as various methods of interpretation of legal texts. The specific features of the chosen subject of research predetermine the use of research methods of related social sciences, first of all, political science. Decisions of the World Heritage Committee are put in legal form, but their elaboration and implementation are highly politicized. For this reason, the article uses different techniques to identify the interests of various actors in the adoption and implementation of the Committee’s decisions and their impact on the content of the World Heritage protection regime. The author highlights the main threats to the ecological state of the Re-serve and the legal means of counteracting them, and pays special attention to the Committee’s legal views on the development of extractive industry projects and the peculiarities of their application to the Reserve. The article states a special role of international “soft” law in regulating the processes of subsoil use in the territories of unique natural objects, and demonstrates the problem of international legal regulation of hydroelectric dams construction within the boundaries of the World Natural Heritage properties using the Reserve as the example. Based on the results of the study, the article concludes that there are growing contradictions between the Committee and International Union for Conservation of Nature and Natural Resources in their search for balance between the interests of nature conservation and economic development of states. The article also forecasts the most probable consequences of such contradictions, including the weakening of conservation restrictions within the protection regimes of World Natural Heritage properties, the strengthening of regional initiatives for the protection of unique natural sites at the expense of universal ones, as well as reduction of the status of listing of properties on the World Heritage List. Based on an in-depth analysis of the shortcomings of IUCN’s work, the author proposes several ways to address them using the potential of soft international law.
JUS COMMUNE
JURISPRUDENCE OF THE COURT OF THE EURASIAN ECONOMIC UNION AND THE COURTS OF LATIN AMERICAN INTEGRATION ASSOCIATIONS: A COMPARATIVE LEGAL ANALYSIS
The article is devoted to a comparative legal analysis of the jurisprudence of courts of integration associations of Latin American states and the Court of the Eurasian Economic Union. The application of the comparative legal approach allows us to study not only the letter of the law, but also the goals, objectives, values of integrative cooperation of states. The application of the teleological method of interpreta-tion of the law by integration courts allows them to resolve legal conflicts based on the goals and objectives of integration. Courts of integration associations are united by a common goal — to ensure uniform application of the law of an integration union. This goal can be achieved through exercising the court’s jurisdiction, both in resolving disputes and in providing advisory opinions or making decisions on requests for preliminary interpretation of the law. The article pays attention to the peculiarities of interpretation of the law by various integration courts. The Court of Justice of the Andean Community interpreted the content and scope of the obligation of a national court to request a preliminary interpretation of the Andean Community law from a supranational court and concluded that a national judge may not request a new preliminary interpretation from the Andean Court if it had already interpreted the rule in question in a previous decision on preliminary interpretation. With regard to the Court of the Eurasian Economic Union, the article points out the importance of the Court's advisory opinions on the clarification of the EAEU law, which guide the Union's bodies and member states in their rule-making and law enforcement practices. The legal positions developed by integration courts are of great importance for the formation and development of integration law, ensuring its uniformity and harmonization of the law of an integra-tion association with the legal systems of its member states. The integration courts have established legal positions concerning basic properties of the integration legal order, freedom of movement of goods, protection of free competition, customs regulation, which are of particular importance for building a common economic and legal space.