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.

Freedom of expression and respect for private life in the context of the development of new information technologies: judicial practice of the ECHR and national courts

This article examines and summarises judicial practice in cases related to the use of new information technologies. The study primarily focuses upon the decisions of Russian courts (general jurisdiction and arbitration) and the European Court of Human Rights (ECHR). Employing ECHR practice, the author also refers to numerous decisions by courts in Hungary and the United Kingdom. Cases related to the use of new information technologies can be distinguished between, and this article examines the judicial practice of three categories of cases: 1) blocking of internet resources; 2) employers’ control over employees’ electronic correspondence; 3) journalists’ use of hyperlinks in author’s texts and their responsibility of such placements. Within each category of cases, the rights of citizens can be seriously violated. The article highlights that in an era of rapid development of new information technologies, states, represented by special services and authorised state bodies, are making unprecedented efforts to ensure that they maintain at least partial control over the activities of new actors (bloggers, Internet media, Internet platforms, etc.). Similarly, courts often compromise with authorities when resolving such issues. Notably, national Russian courts did not consider parties’ interests, nor did they assess the need to block all sites with a particular IP address. They did not even follow the Supreme Court of the Russian Federation’s decision to apply the requirements of the European Convention on Human Rights within the framework of the ECHR. The courts limited themselves to pointing out that Roskomnadzor acted within its power. Thus, the decisions of the national courts did not offer a mechanism for protecting rights. Within the norms regulating the new sphere of relations, there are often norms of a restrictive and prohibitive nature, and these norms are dominant in the Russian Federation. In this regard, there remains grounds for concern among lawyers involved in the protection of rights related to new information technologies.

Normative propositions of the International Tribunal for the Law of the Sea

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

Compulsory jurisdiction under the law of the Sea Convention: its achievements and limits

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a special regime for the settlement of international disputes concerning its interpretation or application. Thanks to the mechanism of the enhanced compulsory jurisdiction provided by Section 2, various cases have been referred to the court or tribunals. Accumulation of the precedents has contributed to the clarification of the interpretation and application of the provisions relevant to the functions of the compulsory jurisdiction of international court and tribunals. This article examines the achievements and limits of the dispute settlement mechanism of Part XV. As far as the choice of the procedures in accordance with Article 287 is concerned, it is possible to say that the choice made by State Parties is respected as much as possible. Article 286 sets out the following requirements for a State Party to resort to the compulsory jurisdiction under Section 2: existence of a dispute concerning the interpretation or application of the UNCLOS; no settlement has been reached by recourse to Section 1; subject to the limitations and optional exceptions in accordance with Section 3. With regard to the first requirement, the ITLOS and arbitral tribunals have examined the subject-matter of the dispute before them and have tried to identify those concerning the interpretation or application of the UNCLOS. It is possible to say that examining the second requirement, the ITLOS and arbitral tribunals have emphasized the sound function of the compulsory dispute settlement mechanism under Section 2. As the third requirement relates to the scope of the compulsory jurisdiction of the court and tribunals, the ITLOS and arbitral tribunals have strictly interpreted the terms of Articles 297 and 298. Their Strict interpretation have allowed the Applicant to resort to the compulsory dispute settlement under Section 2. It is also necessary to note the strategic use of Article 300 in the arguments concerning the breach of the obligations under the UNCLOS in various precedents.

Untapping the potential of Preferential Trade Agreements to promote forest protection: A comparison on forest-related provisions and their enforcement in the US and EU PTAs

The EU and the US are the actors with the highest number of environmental provisions in their Preferential Trade Agreements. Since 1999, specific rules on forest governance and Sustainable Forest Management have been incorporated in their PTAs. The implementation of such forest-related provisions in PTAs is mostly linked to cooperation among the Parties. However, in cases of noncompliance, PTAs provide for bilateral consultations, the application of the general dispute settlement mechanism, and even trade sanctions. The enforcement approaches differ in the US and the EU PTAs. This study focuses on the question of the potential of PTAs to contribute to forest governance and SFM and analyses the disputes that arose so far. It shows how forest issues may play a key role in negotiating and implementing PTAs, promoting compliance of Multilateral Environmental Agreements, and promoting public participation in environmental matters. The paper concludes that PTAs provide further options to develop and implement International Forest Law beyond the Multilateral Environmental Agreements.

Knockin’ on heaven’s door: The burden of proof before international courts

The issues of proof and determining the party upon which the corresponding burden rests are key to the administration of justice as the determination of the facts of the case is a compulsory stage prior the application of the legal norm. In the Russian legal doctrine the issue of proof has been extensively developed with regard to proceedings before national courts, but not enough in relation to the activity of international courts, except for the European court of human rights. This article explores the theoretical aspects of proof in international courts, analyses the approaches of the International Court of Justice and the Court of Justice of the European Union regarding the distribution of the burden of proof. A separate object of study is the legal findings of the Court of the Eurasian Economic Union with regard to the issue of proof. The findings of the study show that the universal rule onus probandi actori incumbit has evolved with the development of the international courts’ case law in the direction of a cooperation between the courts and the parties in the collection of evidence and the placement of the burden of proving the validity of acts, actions (failure to act) on the institutions vested with the corresponding powers.

European Court of Human Rights: review of the Grand Chamber judgment of 22 December 2020 in the case of Selahattin Demirtaş v. Turkey (No. 2) (application no. 14305/17)

In Selahattin Demirtaş v. Turkey (application no. 14305/17), the European Court of Human Rights considered the issue of pre-trial detention of a member of parliament, who at the time of the events was one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. The arrest related to the exercise of his duties as an elected representative and restricts him to exercise parliamentary functions. The European Court pointed out the need for a well-founded crime by a parliamentarian, higher requirements for the analysis of evidence by courts in proceedings against current parliamentarians, and the inadmissibility of using detention on ulterior motives of suppressing pluralism and restricting freedom of the political debate. The Court revealed the presence of ulterior motives in the form of suppression of opposition from the circumstances of the arrest, the context of the criminal prosecution, and the conclusions of international organizations. The court also noted that the right to free elections is not limited to simply being able to take part in parliamentary elections; a person also has the right, after being elected, to take part in the activities of parliament and to take part in its sessions. The possibility to participate in parliamentary debates in writing is not enough. In the context of the admissibility of the complaint, the Court also noted that the complaint to the Inter-Parliamentary Union is not “the subject of “another procedure of international investigation or settlement”, since it does not adjudicate a dispute between an individual and a state based on a legal instrument by which States have agreed to recognize its authority to do so in respect of certain clearly defined rights, and therefore does not prevent the filing of an application with the Court.

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.

Bona fide problem in the activity of international judges

The article examines the forms of bad faith of international judges, the possibilities of counteracting manifestations of bad faith and the factors that stimulate bad faith. Among the first, there are forms related to the appointment of arbitrators (moonlighting, revolving door, issue conflict, etc.), and forms related to the process itself (ex parte communication, pressure on other judges, involving an assistant to perform the work of a judge, etc.). The article provides specific examples of bad faith and analyzes the positions of the courts and doctrine. The focus is on manifestations of bad faith in international investment arbitration, the reform of which is now on the UNCITRAL agenda. The author describes institutional, organizational, procedural and conceptual measures to counteract bad faith of international judges; special attention is paid to the latter, which imply the consolidation of new procedural and substantive concepts, for example, the concept of the presumption of guilt of judges, the concept of the international judicial decision as a sui generis agreement, etc. The author also calls for debates about philosophical, sociological, political, historical and economic aspects of international justice based on the recognition of the fact that it is not a static institution, but, on the contrary, is undergoing profound transformations (like the world as a whole). In conclusion, the author fixes the factors that stimulate bad faith: related to the general shortcomings of international law; associated with its dependence on the political environment; concerning the processes taking place within the judicial corporation; and, finally, concerning the transition of our civilization to the stage of postmodernity, which presupposes distrust in relation to metanarratives. The latter tendency is defined as general, objective and natural; the crisis of international justice in this regard is only one aspect of the general crisis of law and, at the same time, one of its evidence.