Decisions Of International Courts Research Articles

Meandering Limits

This single-case study seeks to provide an in-depth analysis of the territorial‎ dispute between the Republic of Croatia and the Republic of Serbia over the ‎State border along the Danube. The research article will look into the historical ‎roots of the conflict and its current context of the EU accession process‎ of Serbia addressing (i) the dispute in substance, e.g. the positions of Serbia‎ and Croatia, (ii) available dispute settlement tools – bilateral (with or without ‎third-party mediation) or third-party judicial, and (iii) delimitation scenarios ‎of the Danube border both in the bilateral mode and in the light of the jurisprudence‎ of international courts and tribunals. The study demonstrates that it‎ does indeed take some political will to overcome the protracted conflict, and ‎addresses the related focal points. The article is based on interviews, internal ‎documents, decisions of international courts and tribunals, and secondary literature.‎

THE ROLE OF TECHNOLOGY IN PREVENTING AND FIGHTING ORGANIZED CRIME, FINANCIAL CRIMES AND CORRUPTION.

Albania is a country where very little has been said about intellectual and industrial property. The chosen topic is a necessary topic to be addressed as intellectual property is in great need of experts in this important field. Many certain individuals make works like in music, in various arts, poetry, various scientific articles, the production of a trademark in the market, but they do not know their rights and obligations arising from intellectual property. In this paper it is important treatment of the albanian legal framework versus the european legal framework related to intellectual property. The study of European Union directives and international court decisions is very important as it helps us make the necessary changes in the law by applying the principle of proportionality.
 It is also important in case of copyright infringement to have legal protection. Legal protection can be done with a lawyer or self-defense. Legal protection is very important as it is a principle recognized by the European Convention on Human Rights (ECHR).
 We live in the digital age where every service is available online, but high technology has brought many problems ranging from the physical and psychological formation of the child to the copyright infringement. This is a global issue and many websites have tried to protect the rights of copyright or inventor. Dealing with cases in a practical way would make the work more interesting, but also more practical.
 I have participated in conferences such as the NATO Model Conference, National and International Student Conferences and I have also conducted training in the field of legal protection of authors & inventors. In the trainings I participated in I received an important message was "Motivation is the important weapon of success".

James Crawford AC SC FBA (1948–2021): The General Law of State Responsibility and the Specific Case of Investment Claims

It was characteristic of the generosity of spirit of James Crawford—mentor and friend—that, when we wrote last year to ask him whether he would serve as guest editor of this special issue of the Review, he immediately accepted. His passing on 31 May 2021 is a huge loss on a personal level, as well as for the discipline of public international law, a field to which he made an immeasurable contribution over the course of his life in every dimension: as a scholar and teacher; arbitrator and judge; and as law reformer. Professor Freya Baetens has now kindly completed the introductory essay for this issue that she and James co-authored. It falls to me in this preface to say a word about James Crawford’s personal contribution to the development of the general international law of State responsibility and its relation to the special case of investment claims. This is no easy task. Crawford was himself reticent about his own role as the last Special Rapporteur (1997–2001) for the International Law Commission (ILC/the Commission) on the Responsibility of States for Internationally Wrongful Acts, leading to the adoption of draft Articles in 2001 (ARSIWA/the Articles). The record is replete with evidence of his contribution: as author of four reports as Special Rapporteur;2 in the Official Commentaries;3 and subsequently as author of both an introductory text and a detailed monograph;4 an edited collection;5 and several articles on the topic.6 Yet the Articles were, on any view, a collective enterprise, reflecting many voices, both within the Commission and of States. Nevertheless, there is reason to accord particular credit to James for their successful completion and, in turn, for the influence that they have had subsequently in the practice of States and in the decisions of international courts and tribunals. There is also reason to consider that, among all of his many contributions, the conclusion of ARSIWA stands as his most enduring achievement.

Regulatory mechanism for ensuring the fulfillment of human and civil responsibilities

The article analyzes the norms of international human rights treaties of a universal nature, of which Ukraine is a member or participant. It has been proved that international human rights treaties of a universal nature are a structural element of the legal mechanism for ensuring the fulfillment of human and civil responsibilities. Among such international treaties are those that contain the responsibilities of man and citizen, as well as enshrine the need for the State party to create an effective regulatory mechanism to ensure the implementation of these responsibilities: the Universal Declaration of Human Rights (Article 1, Article 29), International Covenant on Civil and Political Rights (art. 19, art. 24), International Covenant on Economic, Social and Cultural Rights (Preamble), 1989 Convention on the Rights of the Child (art. 7). It is noted that the states parties to these international human rights treaties have undertaken to establish effective national mechanisms to ensure the fulfillment of the obligations of man and citizen enshrined in these treaties and must fulfill these obligations in good faith by improving national legislation (especially all - constitutional) and the practice of its application. Emphasis is also placed on the draft Universal Declaration of Human Responsibilities and its norms. It is argued that the structural elements of the legal mechanism to ensure the fulfillment of human and civil responsibilities are international law, general principles of law recognized by all nations, the following supporting sources: international court decisions, doctrinal works of the most qualified specialists in international law. It is stated that the performance of the duties of a person and a citizen should not contradict the goals and principles of the United Nations. It is concluded that international human rights treaties of a universal nature apply a universal approach to consolidating the responsibilities of man and citizen.

ЕКЗОГЕННІ ДЕТЕРМІНАНТИ ПУБЛІЧНИХ ВИДАТКІВ У СУЧАСНОМУ ГЛОБАЛІЗОВАНОМУ СВІТІ

Анотація. Процеси глобалізації у світовій економіці посилюють тенденції залежності бюджетних політики країн, у тому числі у сфері формування публічних видатків, від міжнародних відносин. У науковій літературі доволі ґрунтовно розкрито різноманітні механізми залежності публічних видатків від міжнародних відносин. Однак обґрунтовані наукові позиції щодо тих чи інших наслідків для видатків бюджетів різних країн не впорядковано в цілісну систему зовнішніх чинників. Метою статті є систематизація вчення про вплив міжнародних відносин, у яких бере участь країна, на видатки державного бюджету і розвиток теоретичних положень фінансової науки про зміни публічних видатків під впливом міжнародних відносин. Запропоновано згрупувати чинники, які впливають на публічні видатки, у чотири напрями: 1) геополітичні; 2) юридичні, 3) фінансово-кредитні; 4) інфраструктурні. Серед геополітичних чинників, які найбільше впливають на видатки держави, виокремлено військову агресію, ізоляцію, санкції, втручання у внутрішні справи країни тощо. Важливе значення для публічних видатків мають міжнародно-правові (юридичні) чинники, а саме: правові акти міжнародних інституцій, правомочність яких поширюється на державу; ухвали міжнародних судів; рішення міжнародних фінансових організацій. З-поміж чинників міжнародної фінансово-кредитної системи, від яких залежать видатки національних бюджетів, зазначено стан, динаміку, тенденції на міжнародних фінансових, валютних, кредитних ринках. Наслідки інфраструктурних чинників для публічних видатків проявляються через створення об’єктів глобальної інфраструктури, їхня модифікація і ліквідація. Одержані результати дають змогу чіткіше ідентифікувати міжнародні чинники, що впливають на публічні видатки, і більш ґрунтовно розуміти природу такого впливу. Ключові слова: публічні видатки, бюджет, бюджет держави, економічні санкції. Формул: 0; рис.: 1; табл.: 0; бібл.: 31.

Prezydent przed Trybunałem? Analiza skutków prawnych wydania przez Międzynarodowy Trybunał Karny nakazu aresztowania Omara al-Bashira i Muammara al-Kaddafiego

One of the most frightening aspects of the crime of genocide, war crimes or crimes against humanity is not so much their scale as their relationship with the sovereign power of the state, which either condone, or even participate in their making. It happens when the theoretically unlimited sovereign state power, which is connected with a monopoly on the use of coercive measures, begins to be used against its own citizens. Because of such a misuse of the state functions in the second half of the 20th century international law began to be treated as an element of protection of innocent people against the unpredictable sovereign state. Providing such a protection is enshrined in the international conventions, and in the activities of various international bodies, including in particular the Security Council of the United Nations. But so far there has not been found in the international law an ideal way to solve the conflict between the need to protect fundamental individual rights and the respect of sovereignty of the state. Creation by an international treaty of the International Criminal Court can be described as a major step on the way to the final determination of the relationship between human rights and state sovereignty. Hence, the process of its creation and first years of operation was marked by a dispute between the defenders of those values. In particular this is reflected in a controversy that caused the issuing by the Court of the arrest warrant for the Sudanese President Omar al-Bashir, suspected of committing on the territory of Darfur war crimes, crimes against humanity and genocide. One of the key issues emerging in connection with the Arrest Warrant issued for the head of state is a way to determine the mutual relationship between the obligations of states towards the international court, appointed for the purpose to prevent the gravest international crimes remaining unpunished, and the norms of international law obligating respect for the state sovereignty, by ensuring the immunity of his head is being observed. This article is an attempt to analyze this relationship, regarding the provisions of the Statute of the International Criminal Court, the wording of Security Council Resolution 1593, refering to the Court situation in Darfur and the Security Council Resolution 1970 refering to the Court situation in Libya, and also appropriate rules of customary international law and decisions of international courts.

The role of international courts’ decisions in the system of sources of international financial law

The paper deals with the analysis of the legal nature of international courts’ decisions and their impact on the international financial legal order. The author claims that decisions of international courts, creating no new international legal financial norms, act as an additional source of international financial law, having no autonomy, and in combination with other sources of international law, performs the following functions: 1) regulatory-prescriptive (via opinio juris of existing traditions in interstate practice in the financial sphere transforming them into international customary law); 2) regulatory-affirming (confirming the legal nature of the international agreement between the subjects of international financial legal relations which caused a disputable situation). The judicial practice on financial issues and specificity of functioning of such judicial institutions as the Permanent Court of International Justice, the International Court of Justice, the CIS Economic Court, the Court of Justice of the European Union, the Court of Justice of the Central African Economic and Monetary Community, etc. are examined. The features of the provisions of international agreements on financial issues regarding the procedure for resolving disputes between the parties of the agreement about its implementation are analyzed. The paper explores particularities of the origin and development of the idea of the creation of an international financial court. Amid modern processes of the rapid growth of the amount of cross-border financial flows in the context of globalization, which is the consequence of the implementation of numerous international financial agreements, the idea of creation of an international financial court, which was first suggested in 1935, due to the complexity of legal nature of interstate financial disputes, is an objective necessity. The following features intrinsic to decisions of international courts (including decisions on financial issues) have been identified: 1) locality (binding only on the parties involved in the case, and only in the current case); 2) situatedness and unprompted appearance; 3) impartiality (due to the judges’ lack of political interest); 4) authority (international courts include generally recognized experts in international law).

Domestic Contestations against International Courts and Tribunals: Introduction to the Special Issue

Abstract Domestic authorities, including national courts, at times, resist accepting the decisions of international courts and tribunals. The formal division between the national and international legal orders creates space for domestic authorities to contest or avoid international binding judicial decisions. The present special issue examines domestic contestations in multiple fields of international law, including human rights and investment law. In contesting some of the international decisions, domestic authorities invoke a wide range of legal bases in resisting the effect of international decisions. The contributions in the present issue examine various such argumentative bases of contestations. The contributions also consider whether domestic resistance could give rise to the opportunity for international courts and tribunals to critically reflect on their own decisions and underlying reasoning.

Non-Retroactivity as a General Principle of Law

This article examines the principle of non-retroactive application of law, which prohibits the application of law to events that took place before the law was introduced. The application of this principle has become particularly controversial as states adopt stricter regulations to tackle climate change with retroactive effect, and investors challenge such regulations before international courts and tribunals. In the context of criminal law, the principle is widespread and has become a binding norm of international law. However, a survey of domestic jurisdictions and decisions of international courts and tribunals shows that that there is no general principle of international law which forbids the retroactive application of administrative law. Despite pronouncements of some international courts and tribunals to the contrary, states can conclude treaties and adopt administrative regulations with retroactive effect to pursue legitimate public policy objectives.

An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court

The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.

Problem of Defining Terrorism under International Law: Definition by the Appeal Chamber of Special Tribunal for Lebanon as a Solution to the Problem

This article explores the quest for the legal definition of terrorism under international law. By employing doctrinal research methodology, the paper qualitatively analyze international legal instruments, customary international law, and decisions of international courts and works of various scholars. In doing so, the article first discusses about the difficulty of defining terrorism under international law. In addition, the paper will discuss about the major attempts to define terrorism both by scholars and legally. In dealing with the quest for legal definition, the paper will explore the various attempts to define terrorism by treaty laws and the lacuna thereof. Furthermore, it discusses the definition provided by the Appeals Chamber of the Special Tribunal for Lebanon (STL). Accordingly, the paper calls on the significance of the definition provided by STL for the reason that the decision incorporated elements provided by various UN Resolutions and treaties, customary international law and domestic courts. Hence, the definition by STL should be taken as a universally agreeable one.

Extending Trade Law Precedent

Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of this, most international dispute settlement systems are designed so that rulings do not set obligatory precedent. In this Article, we describe the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). We make two main contributions. First, we show that there can be precedent without a formal stare decisis rule. In theory the AB has a rule against binding precedent. Based on empirical evidence, however, we show that the AB has in fact a strong norm of relying on prior decisions. Second, we show that over time, the widening of legal commitments can result from extending precedent to new situations and this has an impact on the ability or willingness of states to comply. Our findings have implications for the WTO and beyond. For the WTO, we note that efforts to better define the value of precedent is unlikely to resolve the general mistrust of the AB and therefore, we propose other solutions to control the drift resulting from precedent. Beyond the WTO, we note that international scholars should account for the inter-temporal dimension of legal commitments in analyzing and explaining compliance with international law.

Extraterritorial Jurisdiction and sovereignty. The Characterization of Foreign Predicate Offenses for Prosecution of Derivate Offenses (as Money Laundering) and the Consideration of Extraterritorial Conduct as Part of Territorial Offenses

The question of any limits that a state's extraterritorial jurisdiction faces has not yet been fully addressed by international courts and tribunals. The aspect appears somewhat entrapped between the expansion of international criminal law - and the obligation to crack down on international crimes - and a creeping restoration in the form of a reaffirmation of the sovereignty and sovereign equality of states. Furthermore, the extraterritorial exercise of jurisdiction is frequently associated with the practice of lawfare, a neologism that combines the words law and warfare and identifies the use (and abuse) of the law to achieve a political end or, in a more restricted sense , a military end. Two collateral aspects of extraterritorial jurisdiction have recently been examined in decisions of international courts and tribunals. The International Tribunal of the Law of the Sea (ITLOS) in the decision in the case of the MV Norstar (Panama v. Italy) provided an interpretation of the freedom of navigation which prohibits the exercise of the so-called prescriptive jurisdiction (that is, the form of jurisdiction that is alongside the executive jurisdiction and that of ruling on a specific issue and concerns the possibility of extending the scope of its laws and rules) by coastal States with respect to conduct (or parts of conduct) that take place in deep sea. The International Court of Justice (ICJ) in the decision on Preliminary Objections in the Immunities and criminal proceedings (Equatorial Guinea v France) - pending on May 31, 2020 - has incidentally dealt with the 2000 Palermo Convention on transnational organized - a aspect of the exercise of extraterritorial jurisdiction in an indirect form: the characterization of entirely foreign conduct as a predicate crime in order to judge an accessory such as money laundering. The paper analyzes the two decisions in the light of the positions of the parties and their respective decisions.

Comparing Decisions of International Courts on the Separation of Chagos Archipelago from Mauritius and its Aftermath - focused on the Advisory Opinion of the ICJ in 2019 -

Comparing Decisions of International Courts on the Separation of Chagos Archipelago from Mauritius and its Aftermath - focused on the Advisory Opinion of the ICJ in 2019 -

Human right to a favorable environment

The relevance of the research topic is caused by the fact that human intervention in nature has reached its peak. Meanwhile, without a clean environment, there can be no man, no society, no state. The purpose of the research is to prove that the human right to a favorable environment is a natural human right, requiring immediate recognition at the international level. In conducting the study, formal legal, logical, systemic methods, as well as methods of interpreting law were used. Empirical material is presented by decisions of international courts. It is concluded that the human right to a favorable environment is the legal basis for the development and implementation by each state of an environmental policy that includes the legal, informational, educational, financial, international aspects. The right to a favorable environment is a natural human right with a complex structure. It naturally follows from the original natural human right - the right to life. The case-law of international courts laid the foundation for the recognition of this human right. It is necessary at the international level to recognize the right to a favorable environment as a natural human right.

Die Änderung der russischen Verfassung 2020 – Auswirkungen auf die Verfassungsgerichtsbarkeit

The Russian Constitution of 1993 was subjected to its most extensive revision in 2020. The primary purpose of the changes was to strengthen the role of the President of the Republic. In addition, the position of the Constitutional Court was also significantly modified. The various extensions of the Constitutional Court‘s powers can only superficially be classified as “strengthening” the court itself. In terms of “power politics” they primarily benefit the President. He can now dismiss constitutional judges without major procedural obstacles. In all the newly added competencies for preventive abstract normative control, the President is the only body entitled to file an application. In this respect, it is him who can influence and control legislation even more efficiently than before, and the Constitutional Court is realistically no more than its “auxiliary organ.” The fact that the Constitutional Court‘s position as a “defensive instance” against decisions of international courts has been strengthened leads to Russia‘s legal self-isolation and is likely to burden cooperation in international organizations. Other constitutional amendments may well be understood as “upgrading” the Constitutional Court or strengthening the constitutional state. This applies in particular to the considerable expansion of the objects of review in the procedure of individual constitutional complaints and in the procedure of concrete review of norms.

Decisions of International Courts: Following Precedents or Consistent Jurisprudence?

The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider. The courts recognize their duty to follow the sustainable interpretation of international law, as it appears in the own practice of these courts and other international authorities, because this is crucial for the definiteness of legal regulation, predictability of judicial decisions and consistency of legal solutions. The international courts reject following precedents according to the stare decisis rule and are very caution to declare following the concept of jurisprudence constant, trying to be equidistant to particular legal traditions. The legal acts regulating the international justice favour this caution, as they establish the binding force of judicial decisions only inter partes and within concrete case. In a case of need to deviate from the established practice both the International Court of Justice, International Criminal Court, European Court of Human Rights and international investment arbitration tribunals tend to (1) appeal to formal arguments of non-binding force of previous decisions, or (2) argue the differences of considering case with preceding cases, or (3) base on notions developed in their practice – e.g., the idea of “European consensus” in the practice of the European Court of Human Rights.

Perspectives of improvement of the activity of the constitutional court of Ukraine in the conditions of modern social transformations

The article deals with the basic directions of activity of the Constitutional Court of Ukraine as a result of the implementation of the constitutional reform in Ukraine, amendments to the Basic Law, the adoption of a new law on the Constitutional Court of Ukraine, year 2017, The rules of the Constitutional Court of Ukraine, year 2018, corresponding personnel changes, etc. The positive dynamics and efficiency of the body of constitutional jurisdiction in Ukraine is marked, especially in the context of the review of constitutional complaints, protection of the rights of man and of the citizen, which were violated, by legal norms. Despite some problems, the activity of the Constitutional Court of Ukraine in General demonstrates the formation of the system of constitutional justice in the European model. It also emphasized that the issues of improvement of its legal status, improving the efficiency of operation and trust, are designed to be the center of attention of the relevant government institutions, scholars and the public European model.Attention is paid to achieve the main goals that stand today before the Constitutional Court of Ukraine: the development of technology activities the great Chamber, Senate, boards and services of each judge to ensure the timely, fair, effective cases, optimization of acceptance and consideration of constitutional complaint, the establishment of the Court as an integral part of the judicial system, the structural element of the judiciary, a body that provides specific direction of litigation and is one of the most public authorities.The necessary prerequisites to achieve these goals are the permanent analysis and generalization of their own practice of the Constitutional Court, the regular holding of scientific-theoretical and scientific-practical conferences, symposia, round tables with domestic and foreign leading scientists. The question of constitutional proceedings are being discussed, the extension of the proceedings in the Court's activities are information and communication technologies, taking into account the practice and implementation of the positions and decisions of International courts, etc.

Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights

ABSTRACT Drawing upon data from field interviews, court records, and media and NGO reports, this article examines Russian cases claiming LGBT discrimination in domestic courts and at the European Court of Human Rights (ECtHR). The ECtHR has provided a less homophobic venue than Russia’s domestic courts for such claims, but its judgments have had little effect in Russia. We argue that the Russian case illustrates a paradox in the domestic politics of international human rights litigation. Activists from domestic contexts where discrimination is most prevalent are most likely to make successful claims in international human rights courts, while in those same contexts, informal discriminatory norms are likely to be strongest, resulting in those international court decisions having the least impact on the ground.

On Einsteinian waves, international law and national hats: Afterword to the Foreword by Doreen Lustig and J. H. H. Weiler

This article offers a critical reading of Lustig and Weiler’s Foreword article by focusing on the emphasis placed by the authors on the phenomenon of international judicial review and the hierarchical reception of international law by domestic judges as the core features of a second wave of judicial review, interacting with judicial review under domestic laws, characterized as the first wave of judicial review. It first asks whether we can abstract a general wave of international judicial review from the broad range of judicial decisions of international courts and tribunals and proposes that there may be much less international judicial review in the international system than proposed by the authors to make a wave. Second, it holds that where we have international judicial review, such review does not necessarily promote the idea of the hierarchy of international law over domestic law. There are different ways of being an internationalist and a hierarchical positing of international law has always been one option of many. In conclusion, I hold that these two critical inquiries into the second wave have repercussions on the reactionary framing of the third wave of judicial review. Reactionaries, and there are plenty, may be taking issue not only with international law as hierarchical law but also with the very idea of international law or even some basic tenets of public law.