International Judicial Bodies Research Articles

Юрисдикция Международного суда ООН: некоторые теоретические вопросы

Юрисдикция Международного суда ООН: некоторые теоретические вопросы

The Impact of International Humanitarian Law on the Principle of Systemic Integration

The present article explores the impact of international humanitarian law (IHL) on the consolidation and development of the principle of systemic integration. The analysis relies on the jurisprudence of those international judicial and quasi-judicial bodies that have used IHL for interpretive guidance when applying human rights law in armed conflict. Whereas much attention has been paid to the substantive outcome of the interplay between these two bodies of law, too little consideration has been devoted to the role of systemic integration within this context. Human rights bodies and the International Court of Justice resort to this principle in three ways, namely by means of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), through equivalent provisions included in certain human rights treaties, or implicitly. In that regard, systemic integration is employed either to reinforce the application of human rights law by way of IHL, or to avoid norm conflict between diverging norms, especially in relation to the use of force and detention. The article identifies the kinds of impact that IHL has or may have with regard to the consolidation of the principle of systemic integration within the interpretive principles codified in the VCLT and in terms of the modification of some of its constitutive elements. It also aims to demonstrate that systemic integration, rather than lex specialis, is the principle of interpretation most pertinent to the interaction between IHL and human rights law.

Legal Entities Entitled to Invoke International Responsibility

The paper is devoted to the consideration of one of the most pressing problems of invocation to international legal responsibility: the definition of the circle of subjects entitled to make claims against a violator of the norms of international law. Taking into account the existing mandatory and recommendatory norms of international law, as well as the existing practice of international judicial bodies, the paper emphasizes the need for a clear definition of the legal category since it is that which has the right to call an offender to justice. When determining a victim, three situations may exist: when the obligation is violated in relation to one state, when the obligation is violated with respect to a group of states and when the interests of the international community as a whole are violated. At the same time, in classical bilateral relations, only the directly injured state has the right to call to account, regardless of the seriousness of such relations, which does not prevent the third states from expressing their concern about the situation. However, in the event of a breach of obligations towards the international community as a whole, even if there is a directly affected subject of international law, the entire international community, on which behalf the United Nations has the right to claim, has the right to appeal.

The Rule of Law As a Factor of Economic Development

The problem of the interrelation between the economy and law is considered in light of the rule-of-law principle, which is implemented most distinctly in the activity of national and international judicial bodies. It is justified that, under the conditions of general globalizing processes, the correlation between economic and judicial structural institutions becomes even closer, because effective market relations exist only in a legal framework, which provides all interested agents with personal property and nonproperty rights and obligations, including through high institutional and procedural standards in the sphere of justice.

Trends of Development of the Modern International Justice

The article is devoted to tendencies of development of modern international law and the international justice authorities. Globalization of the modern world and the interaction of States at all levels: political, economic, commercial, educational, and others - determines the relevance of the article. The interaction leads to conflicts and disputes between States, between States, legal and physical persons, between legal and physical persons from different countries, they require resolution at the international level. The increase of number of international contacts is followed by the increase of conflicts between the parties and, respectively, the number of international judicial processes. International law and the international judicial bodies play a special role in solving the problems of the peaceful settlement of international conflicts. Certain trends characterize the current stage of development of international law. These are diversification and fragmentation resulting in the proliferation of international judicial bodies. Strengthening the rule of law in international relations is the main positive point of the main trends in international law. The sphere of international relations, which are not covered by international law, are reduced. The main negative aspect of modern tendencies in the field of international justice is: the possibility of multiple interpretations of international law, especially the regional courts, as well as increasing the risk of issuing conflicting, sometimes inconsistent, decisions of different international judicial bodies. The possibility of finding a forum shopping is a negative consequence as well. This creates a legal conflict, delays, problems with recognition of international judicial bodies, their jurisdiction, for failure to execute court decisions. This leads to a reduction of efficiency of activity of international courts in General. The main task of modern international law is to overcome or mitigate conflicts of jurisdictions of the various international judicial bodies, as well as to set the stable matches between international courts and the enforceability of their decisions. Studies of the leading Russian and foreign lawyers play an important role for overcoming contradictions in the sphere of international law and the activities of international judicial bodies. Scientists note in their works that the modern trends of development (diversification, fragmentation, proliferation, imperativity) is an objective phenomena, they are caused by the development of pluralism of the modern world.

A Defense of Minority as a Ground for Procedural Objections in the Practice of Organs of International Criminal Justice

The article considers various aspects of reference to minority as grounds for procedural objections in the administration of the international judicial bodies of juvenile justice on charges of international crimes. It is noted that, despite the lack of a unified approach to the issue of the admissibility of the prosecution of juveniles for such crimes the international criminal tribunals (existing permanent and ad hoc) and hybrid judicial bodies, seems to be indisputable the validity of the qualification of minority of the accused as mitigating circumstances. Moreover, it is necessary to set the minimum age of criminal responsibility for international crimes through the adoption of a treaty.

Legal Framework and Practice of the Protection of Environmental Human Rights in the Context of Armed Conflict

The state of the environment in general and the negative effects of armed conflict in particular are issues to be addressed. The impact of these factors on human rights is obvious. The purpose of this article is to analyze norms and practice of international law to determine the possibility of the protection of environmental human rights in the context of armed conflict. The analysis of international legal norms shows a deficit of special rules providing for the protection of environmental human rights in the context of armed conflict. The volume of international law providing for the direct protection of the human right to a healthy environment is extremely limited. They represent the norms of "soft law" and are not legally binding or, in the most general terms, are enshrined in some regional instruments. The existing state of international legal regulation of this issue necessitates recourse to international judicial and non-judicial bodies. In this context, the practice of the African Commission on Human and Peoples Rights, Inter-American Commission on Human Rights, the European court on Human Rights, as well as acts adopted by the treaty bodies on human rights concerning the protection of individual human rights because of damage to the environment, may be relevant. The analysis of such practices and acts shows that the protection of environmental rights of the individual in the context of other human rights, namely: the right to life, right to adequate standard of living, the right to the highest attainable standard of health, right of ownership etc. In general, the protection of environmental human rights in the context of other human rights is possible in the conditions of an armed conflict, taking into account the characteristics of the latter. Therefore, this approach can ensure the protection of environmental human rights in the context of armed conflict.

Fishing Disputes in the Context of International Maritime Disputes

The relevance of the article is determined by a variety of international disputes in the field of fisheries, which is the main way of extracting food products from the oceans. The article contains the definition of international fishing disputes as a form of international Maritime disputes arising in the extraction of living marine resources and in the management of living resources of the oceans. Special attention is paid to the categories of international fishing disputes that are allocated basing on the analysis of court practice of the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in fishing disputes. The classification of international fishing disputes allows international judicial bodies to systematize the knowledge concerning the data categories of disputes in question and to apply the knowledge in their jurisprudence.

Международные преступления и законодательство Нидерландов: стратегия имплементации

Introduction. The adoption of the Rome Statute of the International Criminal Court proved to be an important factor that stimulated a radical reform of national laws relating to the prosecution of international crimes. It allowed, on one hand, to considerably improve the mechanism for suppressing most serious violations of human rights the prosecution of which constituted a legitimate interest of both individual States and the international community as a whole, and on the other hand, to adequately implement the obligations of States under the Rome Statute. The Member States of the European Union have an effective experience in ensuring compliance of the national laws with the international treaty provisions concerning genocide, crimes against humanity and war crimes. Among them, the implementation model chosen by the Netherlands deserves particular scrutiny. The authors analyze the all-encompassing nature of this model with the focus on the criminalization of the international crimes, the regulation of matters relating to the criminal jurisdiction, the definition of the general principles of criminal responsibility for genocide, crimes against humanity and war crimes, and the interrelationship between the Law on International Crimes and other similar legal acts. Materials and methods . Materials used for the analysis include international documents, decisions of international judicial bodies, national legislation and judicial practice of Netherlands and other states, as well as the doctrinal positions of various authors. The methodological basis of the research consists of general scientific and special methods. Research results. The analysis of the substantive implementation of the Rome Statute by individual EU member states, in particular with the example of the national legislation of the Netherlands, has shown that the criminalization of international crimes at the national level makes a significant contribution to the fight against personal impunity for international crimes pertaining to jurisdiction of the International Criminal Court. Discussion and conclusions . The national legislation of the Netherlands, mainly the International Crimes Act is an attempt to create a legal regime that prevents impunity for perpetrators of international crimes, and also reaffirms that the norms of the Rome Statute are voluminous and fully implemented that allows the Netherlands to carry on an independent prosecution of defendants, excluding the possibility to transfer the case to the ICC.

Понятие рабства и торговли людьми в практике органов международного правосудия

Понятие рабства и торговли людьми в практике органов международного правосудия

Achieving Gender Parity on International Judicial and Monitoring Bodies: Analysis of International Human Rights Laws and Standards Relevant to the GQUAL Campaign

Women are underrepresented in virtually every international body responsible for adjudicating, monitoring, and developing international law. As of February 2017, three of the 15 judges on the International Court of Justice are women; the International Tribunal for the Law of the Sea has 21 judges, only one of whom is a woman; and the International Criminal Tribunal for the Former Yugoslavia has no permanent women judges. This working paper analyzes the extent to which international human rights law and standards support the GQUAL Campaign’s call for States to pledge to achieve gender parity on international courts and monitoring bodies. States establish the nominating or voting procedures that apply to any particular international body. There are a number of opportunities for States to shape the pool of applicants, the composition of any short list, and the final composition of the international body. Because States have a fundamental role in establishing the procedures and controlling the final outcome, the GQUAL Campaign calls on States to address underrepresentation by adopting measures to rectify the gender imbalance on international judicial and monitoring bodies. The Campaign is rooted in well-established and widely accepted provisions of international law. Article 8 of the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) establishes the right of women to represent their governments at the international level, on equal terms with men and without discrimination, and to participate in the work of international organizations. To gain a fuller understanding of the international legal basis for gender parity in addition to the CEDAW framework, this working paper identifies and analyzes complementary international human rights law standards pertinent to the GQUAL Declaration found in the UN Charter, selected international human rights treaties, UN resolutions, and policy statements. The absence of women in equal numbers with men as international judges and members of human rights monitoring bodies is a grave issue. Gender disparities in international institutions undermine the international commitment to equality and non-discrimination. Further, the lack of gender parity erodes the legitimacy of international legal institutions and their mandates to uphold these universal values. This working paper contributes to the effort to address this gap by drawing attention to the scope of international human rights law and standards that can be marshaled to ground the GQUAL Declaration in international law and accepted best practices. This working paper was prepared by Mary Dahdouh ’18, Vaitiari Rodriguez Segui ’17, Virginia Smith ’17, and Miguel Zavala Herrera ’18, interns in the International Human Rights Law Clinic (IHRLC), University of California, Berkeley, under the supervision of Laurel E. Fletcher, Clinical Professor of Law and IHRLC Director. Maria Noel Leoni, Senior Lawyer, Center for Justice and International Law (CEJIL) and Viviana Krsticevic, CEJIL Executive Director, provided guidance and editorial feedback. Katrina Natale, IHRLC Clinical Teaching Fellow provided valuable research and project support.

Multinational (Transnational) Companies as Subjects of Public International Law // Multinacionalne (transnacionalne) kompanije kao subjekti međunarodnog javnog prava

The paper deals with international legal status of multinational (transnational) companies. The first part gives an overview of this entities and the specifics of their role in the modern world.In the second part, the author deals with the elements of international legal personality of multinational (transnational) companies. Such as international legal regulation of the position of these entities, their specific rights and obligations under international law, international responsibility, process subjectivity before certain international judicial bodies and the special relationship (partnership) with international organizations. It should be added that not only that international law acknowledges their existence, but also multinational companies themselves at least in part influence the development of that law.In the concluding remarks the author notes that multinational (transnational) companies do not have all the elements of a full international personality, the one that is inherent to states. However, even if not complete their personality is beyond doubt. Although between them, depending on the case, there are major differences, there is no dispute that, from the perspective of international law, at least some multinational companies have the legal capacity (the ability to be the holder of a larger or smaller circle of rights and obligations established by international law), legal capacity (the ability to conclude international agreements, create international custom, etc.), tort capacity (the ability to provide for the legal bears responsibility for violating the norms of international law), process capability (active and passive legitimacy before some international courts), etc. In all likelihood, along with the expected further strengthening of the economic, but also political and every other power and role of the companies themselves, their international personality will also become more and more developed, At one point this will require global (universal) agreement which would precisely define rights, but, in particular, the duties and responsibilities of these entities.

Достучаться до Совета Безопасности ООН: санкционные списки и обязательства государств по защите прав человека в решениях международных судебных и квазисудебных органов

Достучаться до Совета Безопасности ООН: санкционные списки и обязательства государств по защите прав человека в решениях международных судебных и квазисудебных органов

JUS COGENS REVISITED

Jus cogens raises a vital interest of judicature and doctrine of international public law. We may find different views and opinions on the problem of the existence of peremptory norms, as well as their content. On the basis of the analysisof the practice of international judicial bodies, the article constitutes an attempt to define the prerequisites of a jus cogens norm as well as it aims at determination of a current catalogue of peremptory norms. Moreover, this catalogue evolves over time and in future it might be expected that new jus cogens norms will be recognized by the international community.

Trans-frontier Environmental Damage in International Jurisprudence

The enhancement of environmental awareness in both domestic and international level has been accompanied by the growing number of internal authorities and international bodies within which environmentally related disputes can be addressed. Over the years, environmental issues have been discussed by different international judicial courts and arbitration tribunals. Their contribution to enhance the legitimacy of international concerns to the protection of environment is a significant one. They have acted to clarify the international environmental rules within the international legal order and have augmented the ability of domestic legal systems to deal with associated problems more effectively. The international judicial bodies as well as arbitration tribunals have been faced with a rather vague set of rules and principles that made it an enormous task to apply the law to the particular facts of a case in question. Issues relating to the existence, contents and meaning of the certain related concepts took considerable spaces in the contributions of international courts and tribunals in<em> </em>the course of developing international environmental law, particularly the concepts of environmental damage and the liable party to make reparation.<em> </em>International judicial bodies mostly relied on procedural obligations of states and arbitration tribunals on damage itself and the necessity to compensate them. While the damage is mostly confined to significant damage of value-use aspects of the environment, and liable party is focused on the damage causing activities of the operator, the reparation modes are unsteady between only financial compensation and, if possible,<em> </em>near to<em> </em>restitution.

Судебный нормоконтроль как важнейший фактор обеспечения евразийского правопорядка

The article presents the development of the Eurasian integration processes and the role of the Court of the Eurasian Economic Union in ensuring the uniform application of the Eurasian Economic Union law. Basing on the generally accepted approaches to understanding the importance of the international judicial body for international relations, the author reveals the organizational structure of the Court of the Eurasian Economic Union, the key aspects of the competence of the Eurasian institute of judicial protection. The author compares the missions of the international court and the national body of the constitutional control. The author draws attention to the procedural requirements for the implementation of the Court’s jurisdiction: procedures for dispute considering, and also to the importance of high-quality execution of the Court decisions in order to ensure efficient compliance assessment. The conducted analysis takes into account the statistics of the Court’s performance during its first year of functioning (2015). The author expresses his point of view on the need to create mechanisms of cooperation between the Court of the Eurasian Economic Union and the supreme judicial authorities of the States, including constitutional courts and councils, for proper implementation of judicial compliance assessment within the framework of the Eurasian Economic Union.

Rules on Procedural Time-Limits for Initiating an Action for Annulment before the Court of Justice of the EU: Lesser-Known Questions of Admissibility

Conditions of admissibility constitute a peculiar field of law in the procedural law of judicial bodies set up by international treaties. They are of such importance that international judicial bodies must examine them ex officio, thus independently of any contention by the parties. Failure to comply with a condition of admissibility means that there will not be an examination of the merits of the case. The Court of Justice of the European Union has developed a very detailed doctrine on conditions of admissibility. The first condition of admissibility encountered by the Court of Justice of the European Union refers to the procedural time-limits for initiating judicial proceedings (the dies ad quem). As regards the action for annulment, there are three starting points under the sixth paragraph of Article 263 of the Treaty on the Functioning of the European Union (TFEU), namely: the publication; the notification; and the day on which the contested measure came to the knowledge of the applicant.

International Judicialization in the Arab World: An Initial Assessment

Over the past 20 years, international judicialization — that is, the increasing creation and use of international judicial bodies — has attracted much scholarly attention. Yet despite the concerted effort of growing numbers of scholars from an expanding and disparate number of fields (e.g. law, political science, history, philosophy, sociology) there are still significant gaps in knowledge on the factors leading to success or checks to international judicialization.One of the least-studied areas of international judicialization is the Arab world. Although reaching most of the globe, international judicialization has mostly left unaffected this large and critical area, which is populated by more than 360 million people and quickly growing. Arab countries appear relatively seldom before global international adjudicative bodies, and the few adjudicative bodies created, or in the process of being created, in the region have been crippled by significant problems.This paper provides first an overview of international judicialization in the Arab world and participation of Arab states in global international judicialization. Second, it advances some explanations for the factors that have led to the attempt to create international adjudicative bodies in the Arab world and the reasons why these bodies have largely failed to take roots.

The Global Governance Reflex of International Judicial Bodies

Globalization is mostly described as posing new challenges to international law and legal theory. These challenges are the question of soft law, global law, non-state actors’ role in international law, private mechanisms of law making at global level, judicial fragmentation of international law etc.As a response, international lawyers tended to their long-standing approaches and constitutionalism became international constitutionalism and legal pluralism became global legal pluralism. In other words, old approaches, old machines, old tools were to rescue international law from the diseases of globalization with their ill-adapted global versions. In addition, these old approaches could not work out how to approach to soft law and related soft challenges such as non-state actors, private mechanisms of law making, global governance legal regimes etc. because they only knew hard law. Therefore, they focused on hard challenges such as the fragmentation of international law and related questions of overlapping jurisdictions, conflicting interpretations, forum shopping etc. and ignored or undermined soft challenges of international law.In this regard, it seems to us that these hard and soft challenges of international law require a different approach and a global governance approach to international law might be a solution as it worked in the discipline of international relations. Our work will demonstrate that there is a “global governance reflex” among international judges and this reflex offers much better solutions to the fragmentation of international law than international constitutionalism or global legal pluralism. In the light of the above, this paper will first sketch a distinctive understanding of global governance. Secondly it will treat the fragmentation of international law as a hard challenge of international law. In other words, it will demonstrate that the anxieties about the fragmentation issue are a bit exaggerated and things are not as dramatic as described. It will exemplify this point by analyzing the jurisprudence of main international judicial bodies in order to better grasp feasibility, frequency and risks of overlapping jurisdictions, conflicting interpretations etc. This will show how far the idea of a global governance approach to international judicial bodies is feasible. In the literature, a good number of scholars already mentioned and produced ideas such as comity, judicial community, dialogue of courts etc. This work will attempt to take these propositions to the next step. A rethinking of these proposals within the concept of global governance will be proposed. And it will be concluded that there is a “global governance reflex” among international judges and a global governance approach to international judicial bodies is the cure to the fragmentation of international law and it actually might be a path towards the idea of global law.

Inter-State Disputes in International Trade: Normative and Jurisdictional Conflicts Between the World Trade Organization and Regional Trade Agreements

The main problem constituting the core of this thesis is the issue of overlapping (concurrent) jurisdiction among international judicial bodies. Parallel or subsequent proceedings arising in overlapping jurisdiction may lead to contrasting decisions concerning the same subject matter. Opposite rulings being rendered by international tribunals cannot be considered a positive development in international justice.This research will exclusively be dealing with judicial bodies hearing inter-state disputes in the field of international trade, in particular, with the WTO Dispute Settlement Body (DSB) and Regional Dispute Resolution Mechanisms (RDRMs). Because of the intersecting scope of international treaties governing international trade at global and regional levels, the matter of exercising jurisdiction over disputes arising out of those agreements becomes an issue, which needs a workable solution.