International Case Law Research Articles

Compulsory Treatment as Task of Public Governance or What Thyphoid Mary and Mad King Ludwig Had in Common (Abstract)

The article concerns involuntary treatment of infectious and mental diseases. Development of the legal regulation since the 19th century has been described here. Quality of the existing legal regulation has also been evaluated. Issues of involuntary psychiatric treatment have been analysed and demonstrated by the international case-law and state court practice. Significant differences between legislation in mental and infectious diseases has been detected, as well as differences have been traced between legal standards in the area of involuntary placement and involuntary treatment of mental disorders in Latvia and other countries. It has been concluded that involuntary psychiatric treatment, in line with epidemiological safety, is a task of public governance in the area of domestic security and safeguarding of human rights and it has to be reinforced by governmental authority. Thus, proposal of elaboration of the corresponding law has been made.

Monozygotic twins: Identical or distinguishable for science and law?

Monozygotic twins, also known as monovular twins, share an identical genetic heritage because they are two individuals who derive from the same zygote. For this reason, they have been considered indistinguishable. They represent a limit for the application of markers and analytical methods that are routinely used in forensic science because analyses of DNA fragments (short tandem repeats analysed by capillary electrophoresis) are unable to distinguish monozygotic twins. The recent introduction of ultra-deep next generation sequencing in forensic genetics, also known as massively parallel sequencing, has made it possible to identify a number of genetic variations through genome sequencing (such as copy number variations, single nucleotide polymorphisms and DNA methylation) that make it possible to distinguish monozygotic twins. Here, we present a case of ascertaining biological paternity, in which the alleged father had a monozygotic twin brother. This case led to the examination of international law in similar cases in which the only available biological evidence derives from classical forensic genetic analysis, performed with short tandem repeat (autosomal and/or gonosomal) capillary electrophoresis and the probative value, if recognised, of the next generation sequencing technology in the courtroom.

Prior Notification and Water Rights

International practice, including international instruments and case law, confirms that states generally accept that they have a duty to provide prior notification of planned measures that may have a significant adverse effect upon co-riparians. The principle of “prior notification” is framed differently in various instruments, and it can broadly include the duty to “notify” and “consult” on planned measures. Prior notification helps to prevent and mitigate disputes, as underlined by the ICJ. Notification and consultation create the conditions for cooperation among riparian states and for ensuring the protection of international watercourses. On the contrary, the lack of notification and consultation may aggravate disputes as in the case of the Great Renaissance Dam along the Nile River. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) provides a detailed procedural framework on prior notification and consultation. This essay outlines the established characteristics of the prior notification and consultation duty, then argues that the duty should be viewed not only as an inter-state obligation but also as including the obligation to inform and consult local communities.

Functions of compensation for human rights violation in international and national judicial decisions

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

Dear reader,

The last time I addressed our readers was 20 years ago in the Juridica International issue ‘Legislation and Legal Policy’. This year, all eyes on the legal landscape have been turned to the celebration of the 100th anniversary of the first Constitution of Estonia. The adopting of the Constitution of the Republic of Estonia on 15 June 1920 provided Estonia with a source document that was used to direct life towards a state based on justice and the protection of democracy, fundamental rights and the rights of ethnic minorities. The 100th anniversary of the Constitution is the central theme of the major forum of the Estonian legal community – Estonian Lawyers' Days. The conference kicks off with plenaries and the days will continue with sixteen panels. Under the guidance of experienced moderators more than eighty presenters will take the stage. The programme can be found in this issue. Publication of the thoroughly updated commented edition of the Constitution holds a special place in the event programme dedicated to the 100th anniversary of the first Constitution of Estonia. Commented editions of the 1992 Constitution of the Republic of Estonia have been published since 2002. The above is a collection of scientific articles, which brings together knowledge on constitutional law that has been accumulated over the years, including looks back at history, a comparison to other legal systems, Estonian and international case-law. Over the course of the past few decades, dozens of lawyers have participated in the preparation of comments on the Constitution; their aim has been to create and constantly update the guide to understanding the Constitution, by means of cooperation and debates. Since 2012, the comments have been published by the Iuridicum Foundation as a web publication, and they are freely available to the public. Some of the scientists who commenced commenting on the Constitution in 2002 have since retired, departed, or distanced themselves from the field. Their duties have been taken over by researchers of a younger generation and practitioners with an academic background who are specialised and competent on the topic of the commented section or chapter. Completely new comments have been written in several parts in an interdisciplinary manner, expanding the legal-philosophical dimension. It is of the utmost importance to primarily continue with the approach introducing different points of view. The target audience of the comments are not just lawyers, but the whole of the Estonian public. The fifth edition of the comments on the Constitution will be presented on 21 December 2020. A selection of articles has been presented on the cover of this year’s issue of Juridica International – from the century-old approach to personal freedom in Estonian Marriage Law, to finding answers to the question of whether it is possible, at the current level of artificial intelligence, to delegate making atypical and more complex administrative decisions to kratts. It is of particular pleasure to note that this time a number of contributions from doctoral students at the beginning of their research careers have made it into this issue of the journal – the future belongs to young people who are able to change the world. Thank you to everyone who, with their initiative and activities, have significantly contributed to the maintenance and development of Estonian rule of law. Happy 100th anniversary of the Constitution of the Republic of Estonia!

Crimea-Related Investment Arbitration Cases against Russia before International Investment Arbitration Tribunals

INTRODUCTION.The article is devoted to the analysis of the position of the Russian Federation in ten investment cases initiated by Ukrainian investors after the events in Crimea in 2014. The article also highlights current trends in the issue of confidentiality of international investment disputes. The authors analyze whether Russian strategy is effective based on the experience of foreign states, and also make assumptions about the enforceability of arbitration awards. Where the tribunals rendered awards on the merits, the authors highlight the problem of recognition and enforcement, and also assess Russia’s the arguments to set aside these awards.MATERIALS AND METHODS.This study is based on arbitral awards and information from public sources,including official press releases and interviews with Russian representatives in connection with the pending investment disputes. The authors employed the historical method, as well as such general scientific methods as analysis, synthesis, analogy, description, modeling.RESEARCH RESULTS.The result of the study is the identification and formulation of patterns in investment disputes with respect to investments in Crimea to which Russia as a party of Russia, the identification of typical arguments of the parties and the conclusions of arbitral tribunals on this type of disputes.DISCUSSION AND CONCLUSIONS.Having analysed the awards rendered against Russia by international investment tribunals, the authors presented an overview of the parties’ arguments that were presented when the arbitration considered the issue of jurisdiction and resolved the dispute on the merits. The authors assessed these arguments in terms of their credibility on the basis of existing in international investment case-law.

The instigation of hatred: questions of legal evaluation and procedural issues

Considering the infringements upon the principle of equality caused by hate crimes, as well as the negative impact of such crimes not only on their victims but also on other persons within the same group of vulnerable people, the authors of this paper analyse hate speech as a criminally punishable act. The analysis of this issue is of essential importance as hate speech manifests on the internet, often via comments made online, a worrying issue as hate speech is therefore often tolerated. This article raises the question of the delimitation of hate speech from hate crime; the authors present an analytical overview of national and international case law, providing an insight into the process of distinguishing hate speech from a person’s right to exercise their freedom of self-expression. A separate section covers the challenges that law enforcement authorities face when investigating incidents of hate speech online, where criminal activities often trespass the borders of a single state and their investigation requires tools of international cooperation to receive or transfer electronic evidence.

Amendments of Russian Constitution Concerning International Law and the EAEU Prospective

The work alleges that the constitutional amendment restricting the applicability of international case law in Russia is both the transient response to the instant political tension around Russia and a formalization of the positivistic trend well established in the domestic judicial practice long ago. The positivistic trend is part of the process shaping Russia’s own approach to the international law. The amendment concerning the international case law in the Constitution of Russian Federation will not hinder the rules expressly stated in the treaties of the EAEU.

On Obligations Erga Omnes Partes

This Article addresses the development of obligations erga omnes partes and their legal status, and clarifies the extent to which the notion has had an impact on the enforcement of multilateral treaties and, in particular, human rights conventions by examining international and regional case law, soft law instruments, and state practice. It argues that the endorsement of the concept by the International Court of Justice (ICJ) has the potential to dramatically expand its application to breaches of all kinds of multilateral treaties where such breaches amount to violations of obligations pertaining to a treaty’s object and purpose. In this sense, a violation of an obligation erga omnes partes is conceptually identical to a “material breach” envisaged under Article 60(2) of the Vienna Convention on the Law of Treaties, but the development of the relevant rules gives the claimant state an additional procedural remedy to institute proceedings against the violating state to end the breach.

The Rights of the Child and a Problem of Immigration Detention

The problem of children immigration detention will be explored based on the analysis of international human rights law and international refugee law. Preliminary remarks will elaborate on how migration detention impacts on the exercise of the rights of the child, focusing, in particular, on the deleterious influence this measure exerts on the child’s mental well-being. Next, the principle of using child migration detention as a measure of last resort will be analysed in light of international standards. The practical implementation of this principle calls for observing the standards for individual assessment of the particular situation of each immigrant child. This includes treating the minors first and foremost as children, and only then as immigrants. Another key element is the area of the state’s positive obligations. International case law has increasingly called for an absolute obligation to first provide the child or the family with a child with an alternative to the detention measure. This involves the need to establish the necessary infrastructure that would allow for such an alternative solution. Furthermore, in a situation where detention is necessary, it should be exercised while accommodating the needs of families with children. As will be demonstrated, nonfeasance and negligence lead, in the most extreme cases, to their being recognised as violation of the prohibition of inhuman or degrading treatment or punishment.

The Inadequacy of Current Remedies for Violation of Data Subjects’ Rights and How to Fix it

The paper focuses on civil law remedies for violations of data subjects’ rights: claims for damages and claims for compensation of moral harm. Based on an analysis of academic literature, as well as of Russian and international case law, it is argued that, although these remedies are endorsed by the GDPR and other laws, they are inadequate and do not conform to the requirements for an “effective remedy” stipulated by major international legal documents on human rights. The main reasons are: 1) difficulties in proving the fact and the amount of a legally recognized category of damage because the typical consequences of data privacy violations (e.g. the chilling effect caused by dataveillance, negative emotional reactions, etc.) are not considered legally significant by the courts; 2) inability to prove with a substantial degree of certainty a causal link between the violation and the damage incurred because such damage occurs remotely and within complex flows of data. This produces an imbalance in the enforcement of data protection laws so that public law remedies such as administrative fines predominate. This approach is not compatible with the goals of empowering the individual and ensuring control over usage of one’s data because there cannot be effective control without an effective remedy to enforce it. In practice this leads to under enforcement of data protection laws because under-resourced data protection authorities cannot address most of the violations that pertain to data protection. A new type of remedy that would resemble the statutory damages applicable to copyright infringement in some jurisdictions should be introduced. Its punitive and decentralized nature would become an additional incentive for data controllers to invest in compliance with data protection laws. From a long-term perspective, it may facilitate including individuals in management of their personal data, without which it would be impossible to effectively address the risks brought about by massive and ubiquitous data processing and algorithmic decision-making.

Amendments of Russian constitution concerning international law and the BRICS

The paper presents the current constitutional reform in Russia focusing on the constitutional amendment concerning the international case law. The amended article 79 of the Constitution of Russian Federation restricts the international case law applicability in Russia. There was no polemic around the draft of the constitutional amendment and this restriction was accepted by experts, politicians and public without any discussion. To certain extent this unanimous acceptance could be explained by general positivistic trend in Russia. The amendment is in line with the positivistic approach to the international law formed in Russia recently. The strategic documents on the cooperation within BRICS are scrutinized showing that the positivistic approach is in line with the strategies of Russia announced previously. Based on the general scientific methods and on the method of academic foresight the authors made the following conclusions. The constitutional reform regarding international law does not affect the BRICS documents directly and it does not go against the principles of BRICS cooperation announced by Russia. However, there are certain indirect implications. It is clear that the reform deepens divergences between the BRICS countries. The differences in the approaches to the human rights, certain ideological differences will become more acute within BRICS and there is a space for political use of these differences.

Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context

Emoji and emoticons are becoming increasingly prevalent in criminal law cases around the world, although some judicial officers currently have no experience of them or of interpreting them. This article offers an in-depth examination of the area of emoji and emoticons in criminal law. It provides an overview of emoticons and emoji, including their history, their global popularity of use in modern communication, and their particular interpretative difficulties. It canvasses and analyzes international criminal cases involving emoji and emoticons. It provides a valuable table that lists each such case in which emoji and emoticons are present. In reviewing the existing international case law, this article identifies the handful of cases in which judicial officers have attempted to interpret emoji and emoticons in the criminal law context. However, it also demonstrates the absence of clear guidance on methods of interpreting emoji and emoticons. Most importantly, this article aims to assist filling this void by proffering important recommendations regarding interpreting emoji and emoticons in the criminal law context.

The role of international case law in implementing the obligation not to cause significant harm

The no-harm principle is at the heart of the several international conventions focusing on the uses, allocation, management and protection of transboundary water resources. However, in the framework of these agreements, the meaning of “no-harm” remains rather vague. Through an analysis of six emblematic cases brought before the International Court of Justice and arbitration tribunals, we elucidate the various facets of this principle. In doing so, the paper identifies four facets. The first is characterized by concerns related to the protection of territorial integrity rather than those related to the protection of the environment. The second facet focuses on the principle of equitable and reasonable use of water, which testifies to the willingness to anticipate possible harms and to define conditions for cooperation between neighbouring countries. The third facet explores the use of three instruments and emphasizes their importance to clarify the very nature of harm: the conduct of environmental impact assessment, the consultation of local populations and the insurance of minimum environmental flows. The fourth facet develops a preventive perspective on harm by unravelling the duty to take appropriate measures to prevent and mitigate risks deriving from the obligations of notification and consultation.

PENANGGULANGAN KEJAHATAN PEROMPAKAN LAUT DI INDONESIA BERDASARKAN PERSPEKTIF HUKUM PIDANA INTERNASIONAL

The crime of piracy at sea is one of the acts of violence or illegal detention, or any act of destruction committed for personal purposes by the crew of a ship or a passenger of a private ship or aircraft and aimed at the high seas, against other ships or aircraft or against persons or goods that are on board a ship or aircraft somewhere outside the jurisdiction of any country. This article aims to analyze the implementation of the universal jurisdiction of a country in tackling the crime of marine piracy in Indonesia and the preventive measures applied by the government in protecting Indonesian-flagged ships in foreign territorial waters that are prone to armed robbery. This research uses doctrinal legal research. Doctrinal legal research is research on law that is conceptualized and developed on the basis of the doctrine adhered to by the conceptor and / or the developer. Sources of legal information use primary legal materials (regulations and relevant documents) for further qualitative analysis. The approach used is statutory, conceptual, and analysis to help solve the problem formulation. Piracy is a common enemy of the international community which has tremendous consequences for international security. Regarding prosecuting perpetrators of piracy crimes, in this case international law itself has transferred its powers to all countries, namely the application of the principle of universal jurisdiction.

Facing the Future: The Case for A Right to a Healthy Environment for Future Generations under International Law

This paper seeks to examine whether the current framework of international human rights law formally grants the right to a healthy environment to future generations. There has been much debate regarding the effectiveness of international human rights law in guaranteeing environmental sustainability in particular without the consideration of future generations. The right to a healthy environment was specifically chosen both as a means of narrowing the scope of this research and given that future generations are a fundamental concept of international law relating to environmental sustainability. In Section II, all relevant concepts, including ‘future generations’, ‘intergenerational justice and ‘environmental sustainability’ will be defined and explored. In addition, a link will be established between intergenerational equity and sustainable development in light of current literature and scholarly discussion. The following section discusses how the link drawn between environmental protection, human rights protection and environmental sustainability provides for a common approach to fully handling current environmental issues. Subsequently, a positive analysis of present day international legal instruments, customary international law and case law will be conducted, to determine the current status of future generations regarding the right to a healthy environment. Use will also be made of academic literature on the subject, including extensive research carried out by scholars such as Edith Brown Weiss and Bridgit Lewis. To conclude, the findings of each section will be summarised, and a final conclusion will be drawn as to the state of future generations in international law and the potential for the right to a healthy environment to be accorded to them.

Post-Mortem Protection of Human Dignity

After a long development, Rome Statute represents a codification of customary international humanitarian law. Despite of her own national history with respect to war crimes, Germany finally promotes prosecution of offences against crimes as set forth by the Rome Statute through national authorities based upon the German Criminal Code of Crimes against International Law which mirrors the Rome Statute. Desecration of dead adversaries has become outraging practice in armed conflicts of international and non-international character. The German Federal Supreme Court of Justice in its case law has stated the criminal illegality of such wrong-doing by not only referring to the Rome Statute, but either implementing international case law when it comes to desecration of corpses according to Section 8 paragraph 1 No 9 of the German Criminal Code of Crimes against International Law.

THE SOUTH CHINA SEA ARBITRATION CASE AND THE CONSEQUENCES FOR THE LEGAL REGIME OF ISLANDS IN INTERNATIONAL LAW REGARDING UNCLOS ARTICLE 121.3

This paper aims to determine whether there is uniformity in the interpretation of the UNCLOS Article 121.3 and whether the Arbitral Award can be considered as a threat to it. The historical context and the ambitions of the involved parties are presented and analyzed. In addition, an analysis of the treatment of the island regime in international case law is carried out, as well as an analysis of the Tribunal’s interpretation of Article 121.3. The main finding is that there is no contestation regarding the uniformity its case law interpretation; but a necessary complement given the ambiguity of Article 121.3.

Vocación transformadora de la jurisprudencia interamericana

Just as there is a transformative constitutionalism that aims to transform the prevailing order and open new avenues for social life, there is international caselaw in the same vein for the protection of human rights. Within the region under its jurisdiction, the Inter-American Court has taken on this transforming vocation and issued growing and varied caselaw that strives to introduce substantial changes in the domestic legal orders and practices in the American States, especially those that form part of Latin America. This work provides a brief overview of the most recent Inter-American caselaw that highlights this intent to transform. It covers a wide range of issues that the Inter-American Court has addressed in judgments and advisory opinions in recent years. The authors discuss core issues in the exercise of Inter-American jurisdiction, such as the protection of human dignity, the obligations of States, conventionality control, the protection of vulnerable persons and other matters of paramount importance. It also gives an account of significant decisions in the field of economic, social and cultural rights, the right to truth and democratic rule, and mentions the internal acceptance of international caselaw.

The use of non-domestic legal sources in Supreme Court of Canada judgments: Is this the judicial slowbalization of the court?

Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC) is often considered one of the world’s most cosmopolitan and proactive actors in transnational judicial conversation. However, there are also other forms of non-domestic legal sources that Courts engage with, such as: foreign law, international case law, and international treaties. Hence, the ‘globalist’ or ‘localist’ approach of a court cannot be assessed without looking from this broader perspective. By examining all the 1223 judgments issued by the SCC over 17 years (2000–2016), this study offers a comprehensive picture of citations of all forms of non-domestic legal sources. Remarkably, the empirical data show that the Court has extensively engaged with all forms of non-domestic legal sources, and cites such foreign authorities in approximately 50 different fields of law. This article is distinct in that it combines two different perspectives when analyzing the data: the <em>SCC as an institution</em> and its <em>individual judges</em>. From an institutional perspective, such all-inclusive records demonstrate that foreign citation is decreasing, a trend which may jeopardize the high prestige of the SCC in the global arena. Similar trend is noticeable when the data is analyzed also from an individual-judge perspective. In providing an empirical picture of individual judges’ engagement with non-domestic legal sources, this Article attempts to categorize the 21 justices that have served in the SCC during the 17-year timeframe into three groups: ‘high globalist judges’, ‘moderate globalist judges’, and ‘localist judges’. The article ends with few remarks regarding whether this is a <em>judicial slowbalization</em> of the Court.