Defendant State Research Articles

Concepts and signs of international human rights institutions

The article analyzes various approaches to the interpretation of the concept of an international human rights institution. The author’s definition of the concept of an international human rights institution is proposed, which should be understood as an international association endowed by the relevant states and (or) other entities with its own international legal personality, based on an international treaty or other document provided for by the norms of international law, the purpose of which is achieving goals related to the protection of the rights and freedoms of a person, and which, as a rule, has its own system of bodies acting on a permanent basis. It was noted that in the process of forming the institute of international organizations, the main attention of the states was focused on the creation of international intergovernmental organizations, which have executed and continue to execute a significant influence on the course of world events. International interstate organizations are one of the three important institutions through which interstate cooperation is carried out. Created in accordance with special international treaties, they have international legal personality and a clearly defined organizational structure, reflect the main goals, tasks and competence and act in accordance with the norms of international law. Despite the fact that international human rights institutions have a subsidiary character to national protection bodies, they provide considerable influence by making appropriate decisions based on the results of consideration of individual appeals from victims whose rights and freedoms are violated. The process of applying for the protection of rights and freedoms to international human rights institutions is a kind of one of the forms of activity of the relevant legal entity. The article highlights the main characteristics of international human rights institutions, which include: 1) contractual basis, 2) existence of defined goals, 3) appropriate organizational structure, 4) existence of independent rights and obligations, 5) possibility of considering applications from victims of rights violations and freedoms and the adoption of relevant decisions (conclusions, recommendations), 6) the possibility of influencing the defendant state, which violates the rights and freedoms of a person, 7) the permanent nature of the activity.

Proving Domestic Violence as Gender Structural Discrimination before the European Court of Human Rights

Since Opuz v. Turkey (2009), the European Court of Human Rights (ECHR) delivered over a dozen judgments in which it examined domestic violence through the prism of gender-based discrimination. Apart from the individual circumstances of the cases, the Court considered the general approach to domestic violence in the defendant states, searching for a large-scale structural gender bias. Hence, although the Court has not directly referred to the notion of “structural discrimination” in relation to domestic violence, it engaged in unveiling this problem within the state parties. Building on the case law of the Court, the article presents and systemizes information that may prove structural gender discrimination in domestic violence cases. It navigates potential applicants through the Court’s interpretation and indicates arguments and sources that may support their claims. In particular, it discusses what kind of data and information may demonstrate the general, discriminatory attitude of the authorities towards domestic violence and what sources the applicants may use while seeking the evidence.

The Humanization of War Reparations: Combatant Deaths and Compensation in Unlawful Wars

Recent events have sparked a renewed interest in the law and practice of war reparations. While today it is uncontroversial that unlawful uses of force, including acts of aggression, entail the obligation of the wrongdoing state to make reparations, including by way of compensation, the precise extent of this obligation remains subject to debate. One particularly contentious aspect is whether, and to what extent, states that violate the prohibition on the use of force are obligated to pay compensation not only for harm caused to civilians and civilian objects, but also for damage caused to the armed forces of the defending state. In this article, we demonstrate that states that engage in unlawful uses of force are indeed obligated to provide compensation for this type of harm. However, we also explain how issues of causation, evidentiary standards, and the financial capacity of the wrongdoing state may in some cases limit the scope of such claims. Moreover, we demonstrate that compensating combatants is not only doctrinally sound but also normatively desirable as it highlights their role as the core victims of unlawful wars. Finally, we elaborate on some of the consequences of this conclusion, including in relation to the individualization of reparation claims, the moral and legal equality of combatants, as well as the normative principles underlying international humanitarian law (“IHL”).

Injunctions, land and the cynical breach

AbstractAn injunction is typically characterised as the primary remedy to prevent a continuing interference with a claimant's property rights. It can be easier to obtain such a remedy against a cynical defendant who knowingly interfered with those rights, as opposed to a naïve or unwitting party who was unaware of them. It is not obvious, however, why the defendant's state of mind should affect what remedy the claimant is afforded in vindicating their property rights. This paper examines the role played by the defendant's state of mind when considering whether to grant an injunction. It argues that a defendant who knowingly infringes a property right in respect of land for material gain assumes the risk that an injunction will be granted to stop that infringement. As a consequence, the question of whether such an order will create hardship or oppression is either diminished or eliminated as a factor. This approach also vindicates the proprietary nature of such rights, which may be difficult to assess in financial terms.

Forest legislation of Peter the great: traditions and innovations

Russian Tsar Peter Alekseevich, who went down in history as a reformer and the first Russian emperor, in his activities to transform the patriarchal Moscow kingdom into the modern Russian Empire affected almost all spheres of state activity. He did not lose his attention and forest legislation. According to the authors of the article, Peter created the foundations of forest legislation, the main feature of which was the protection of state interest to the detriment of the private. Thus, the authors of the article believe, that Peter’s etatist views were clearly manifested in his forest legislation. At the same time, it should be noted that when developing forest laws, Peter was forced to take into account tradition and apply innovations to established customs. According to the authors, this explains the contradiction of Peter's forest legislation. At the same time, the authors believe that Peter was forced to solve problems that can be called environmental, defending state interest in forest management.

A Gross Misuse of Statistical Reasoning: The Statistical Arguments Offered by Texas to the Supreme Court in an Attempt to Overturn the Results of the 2020 Election

In December 2020, Texas filed a motion to the U.S. Supreme Court, claiming that the four battleground states: Pennsylvania, Georgia, Michigan and Wisconsin did not conduct their 2020 presidential elections in compliance with the Constitution. The motion requested permission to file a complaint that would deny the voters in the four defendant states their chosen elector in the 2020 presidential election. The Court rejected the motion. Texas supported its motion with a statistical analysis purportedly demonstrating that it was highly improbable that Biden had more votes than Trump in the four battleground states. This paper points out that the analysis submitted by Texas violated several fundamental principles of statistics and repeatedly misinterpreted the p-value of a statistical test. We hope this paper will help judges detect flawed statistical analyses when they review them for admissibility and will be an example that educators can use to show students mistakes they should avoid when analyzing data.

Crime of genocide before the International Court of Justice

When Mr. Raphael Lemkin invented the term genocide in 1944 he was trying to fill the void in the existing list of international crimes because, in his view, none of them was appropriate to address the terrible mass atrocities of World War II. The mass extermination of Jews, Gypsies, Slavs and other groups should have been different from “ordinary” crimes against humanity. His fight led to the adoption of the UN Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Although the Convention was primarily designed to punish individual perpetrators, States parties can also be held responsible for the same crime. The reference in Article IX of the Convention to the jurisdiction of the International Court of Justice clearly shows in that direction. However, the first case appearing before that court was the case of Bosnia v. Serbia in 1993 and the Court made its ruling on the merits in 2007. The following ruling concerned the case of Croatia v. Serbia in 2015. Neither of the final rulings established the responsibility of the respondent state for genocide, although the crime had been established in the case of Bosnia. The article will look into the requirements for the genocide to be established and what was the missing link between the crime and the defendant state.

РЕЦЕНЗИЯ НА КНИГУ «TERRITORIAL SOVEREIGNTY. A PHILOSOPHICAL EXPLORATION» BY ANNA STILZ

The review is devoted to the book by the professor of political science at Princeton University Anna Stilz “Territorial Sovereignty. A Philosophical Exploration” (2019). The main issues of the researcher's work are territoriality, sovereignty, and the system of territorial states. The author proposes a revision of this system from a philosophical point of view. Professor Stilz defends the concept of a state's territorial sovereignty against contemporary criticism. Her position is based on arguments of both cosmopolitanism and liberal nationalism. The researcher recognizes principles of open borders, aid to refugee, global cooperation and criticizes the nationalist interpretation of state sovereignty. However, unlike the view of the cosmopolitan school, A. Stilz believes that the implementation of these liberal principles is possible within the system of territorial states. Moreover, defending state sovereignty, the professor uses ideas of the philosophy of the Enlightenment, Kant's doctrines about the interaction between the individual and the state, and about state sovereignty. The main contribution of this work to the body of political science is three core values: occupancy right, basic justice, and collective self-determination. According to Anna Stilz, three core values can modify the current system of territorial states in accordance with new global challenges.

L’État dans le contentieux de l’investissement : identification, représentation, transformation

In international investment arbitration practice highlights the complex factual situation of states beyond their legal personality. This kind of arbitration was encouraged as a mean to avoid the heaviness of diplomatic protection in a view to depoliticising economic disputes. However, it can be observed in the recent evolution of this kind of arbitration that through different aspects the political implication of states is not absent and appears with the enhanced attention paid to the drafting and interpretation of treaties as well as with the impact on investment disputes of political evolutions and events affecting the legal situation of the defending state.

Direitos humanos e vulnerabilidades atravessadas

Resumo: Neste texto intentamos analisar o Caso Gonzales Lluy vs. Equador, da Corte Interamericana de Direitos Humanos, cujo decisum condenou o Estado réu pelas violações de direitos humanos de Talía Gabriela Gonzales Lluy em virtude de contágio pelo vírus HIV. O estudo leva em consideração especialmente as temáticas da diferença e da(s) vulnerabilidade(s), as quais saltam aos olhos nesta demanda, delineando todo o julgamento que, afinal, reconheceu a discriminação interseccional a que foi submetida Talía. A partir de revisão crítico-reflexiva dos temas pautados e da utilização da fenomenologia hermenêutica, neste texto pretendemos evidenciar que o caso ora em discussão pode se constituir, guardadas as devidas proporções, em um importante precedente da Corte Interamericana em termos de direitos econômicos, sociais e culturais.

Why direct counter‐terrorism measures only may fail: An analysis of direct and preventive counter‐terrorism measures

AbstractWe present a two‐agent, asymmetric‐information game model featuring a terror organization (Org) and a defending state (State). The Org chooses an aggregate terror input. The State chooses the levels of preemptive measures and redress of grievances of the Org's population, respectively as direct and preventive counter‐terrorism measures. Defining how the war on terror (WoT) may be “lost” or “won,” we prove that it is impossible to win the WoT with preemptive measures only, if the marginal cost of these measures is increasing. The optimal response of the State to an increase in terrorism is to increase preemption and grant more grievance redress.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

Naku v. Lithuania and Sweden

Human rights — State immunity — Jurisdictional immunity — Civil proceedings against foreign State for unfair dismissal from employment at embassy — Courts of forum State holding defendant State immune — Whether recognition of immunity involving a violation of right of access to courts — European Convention on Human Rights, 1950, Article 6State immunity — Jurisdictional immunity — Employment — Proceedings for unfair dismissal from employment at embassy barred by State immunity — Whether contrary to human rightsDiplomatic relations — Locally employed staff — Dismissal — Whether sending State entitled to State immunity in proceedings for unfair dismissal from employment at embassy

La suspensión de procesos penales como medida cautelar en juicios arbitrales de inversión internacional ante el CIADI: ¿Vulneración de soberanía?

This paper seeks to analyze whether an international arbitration tribunal in international investment trial, ordering the provisional measure of suspending a domestic criminal process, harms the sovereignty of the defendant State. In our opinion, although they are exceptional measure, it does not. Pursuant the analyzed case-law, the tribunals are implicitly inclined to suspend these proceedings when they affect the claimant’s rights, or when the State abuses of those proceedings seeking other interests than those truth to the criminal process.

Radunović and Others v. Montenegro

Human rights — State immunity — Jurisdictional immunity — Civil proceedings against foreign State for unfair dismissal from employment at embassy — Courts of forum State holding defendant State immune — Whether recognition of immunity involving a violation of right of access to courts — European Convention on Human Rights, 1950, Article 6State immunity — Jurisdictional immunity — Employment — Proceedings for unfair dismissal from employment at embassy barred by State immunity — Whether contrary to human rightsDiplomatic relations — Locally employed staff — Dismissal — Whether sending State entitled to State immunity in proceedings for unfair dismissal from employment at embassy

Sabeh El Leil v. France

Human rights — State immunity — Jurisdictional immunity — Civil proceedings against foreign State for unfair dismissal from employment at embassy — Courts of forum State holding defendant State immune — Whether recognition of immunity involving a violation of right of access to courts — European Convention on Human Rights, 1950, Article 6State immunity — Jurisdictional immunity — Employment — Proceedings for unfair dismissal from employment at embassy barred by State immunity — Whether contrary to human rightsDiplomatic relations — Locally employed staff — Dismissal — Whether sending State entitled to State immunity in proceedings for unfair dismissal from employment at embassy

Cudak v. Lithuania

Human rights — State immunity — Jurisdictional immunity — Civil proceedings against foreign State for unfair dismissal from employment at embassy — Courts of forum State holding defendant State immune — Whether recognition of immunity involving a violation of right of access to courts — European Convention on Human Rights, 1950, Article 6State immunity — Jurisdictional immunity — Employment — Proceedings for unfair dismissal from employment at embassy barred by State immunity — Whether contrary to human rightsDiplomatic relations — Locally employed staff — Dismissal — Whether sending State entitled to State immunity in proceedings for unfair dismissal from employment at embassy

Wallishauser v. Austria (No 1)

Human rights — State immunity — Jurisdictional immunity — Civil proceedings against foreign State for compensation after dismissal from employment at embassy — Courts of forum State accepting defendant State’s assertion of immunity in second set of proceedings — Whether recognition of immunity involving a violation of right of access to court — European Convention on Human Rights, 1950, Article 6State immunity — Jurisdictional immunity — Employment — Proceedings for compensation after dismissal from employment at embassy — Second set of proceedings barred by State immunity — Whether contrary to human rightsDiplomatic relations — Locally employed staff — Dismissal — Whether sending State entitled to State immunity in proceedings for compensation after dismissal from employment at embassy

Forum Shopping and Fairness in Mexico–United States Trade Disputes

Of all the countries in Latin America, Mexico has the strongest economic ties to the United States, formalized by the creation of the North American Free Trade Agreement in 1994, but this Agreement does not preclude Mexico from targeting the United States in the World Trade Organization's Dispute Settlement Mechanism. In fact, the Agreement's dispute‐settlement system encourages it to do so if the complaint at hand is to have a fair consideration. The North American Free Trade Agreement's dispute‐resolution system goes to a board containing representatives from the three‐member countries, which includes by default the complainant state and the defendant state. Therefore, even though Mexico has the closest economic relationship with the United States of the Latin American states considered in this project, it is also the most likely to target the United States in the World Trade Organization. This article focuses on how trade ties constrain Mexico's use of the Dispute Settlement Mechanism against its largest trade partner.

The Insanity Defense: Historical Precedent and Modern Application

Mental health professionals need a basic understanding of the insanity defense. This article provides an overview of the historical origins of the defense and current application. The word “insanity” has a special meaning in the judicial system, one that is different than that used by medical professionals. A successful insanity defense allows a defendant to be found “not guilty by reason of insanity.” Although this verdict is an acquittal, it almost always leads to commitment to a psychiatric facility. Courts give considerable weight to the opinions of psychiatric experts when assessing an insanity plea. To provide such an opinion, a psychiatrist must understand their jurisdiction's insanity standard, review the facts of the case, and perform detailed interviews. Using this information, a psychiatrist can offer an opinion on a defendant's state of mind at the time of the crime. [ Psychiatr Ann. 2018;48(2):95–101.]