Vol 2, No 1 (2024)

Year: 2024
Articles: 6
URL: https://journal-vniispk.ru/2949-5717/issue/view/21521
DOI: https://doi.org/10.17323/jil.2024.v2.i1

Full Issue

History

The Emerging International Legal Protection of Human Rights in the Interwar Period: the Life and Ideas of André Mandelstam. Part 1

Shestakova K.D., Yataeva P.S., Avdeeva V.S., Suponin V.V.

Abstract

The contemporary academic literature on theory and history of international law in the Russian language hardly ever mentions the name of André Mandelstam. As for the doctrinal sources in English, French and other languages, the attention to the ideas of A. Mandelstam gradually returns to the sources focused on the early history of human rights protection. In the turbulent time of wars and revolutions, Mandelstam’s diplomatic and academic career stands out because of his consistent focus on the protection of human rights, and during his years in emigration — his attempts to universalise these ideas. It was André Mandelstam who prepared the first draft of the universal declaration of human rights, adopted by the International Law Institute. During his emigration years, A. Mandelstam gave lectures in the Hague Academy of International law, promoting humanitarian ideas and reflecting on the minority rights, refugees and statelessness issues as faced by and resulting from the transformation of Ottoman and Russian Empires. He conceptually developed the ideas of international protection of minorities and human rights in international law, all the while continuing to actively work towards their universalisation. Despite the advanced ideas for his time about the primacy of human rights over state sovereignty, Mandelstam was not free from the perception deeply rooted in the worldview of internationalists of his generation about the different levels of development and civilization of various peoples, who, in their opinion, needed protection from enlightened states. The authors of this article have explored the private background of André Mandelstam and microhistories connected to it, striving at the same time to draw the wider historic, political and social context. They examined André Mandelstam's ideas on the protection of minority and human rights as they developed in the interwar period in order to bring them back into contemporary theoretical and historical discourse.

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HSE University Journal of International Law. 2024;2(1):4–18

4–18

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Theoretical Inquiries

The Road to Utopia is Paved with Contradictions: Theoretical Understanding of the Principle of Equality

Sechin D.S.

Abstract

In modern international law the idea of sovereign equality is the basis for its functioning and further argumentation in reasoning about the violation of law and its effectiveness. It is reflected in the main legal acts, but in fact under the screen of equality the strong states influence the weak ones, imposing their will. The research methodology is based on the study of the nomos of equality, that is, the ordering of norms that exists in the legal imagination. Nomos is shaped through contexts and structures. By placing the nomos in a historical perspective, it is possible to see how it has changed and where it originates. The origins of the idea of equality go deep into history to pagan communities where two global visions of order took shape: a pluralistic cosmos and a hierarchical universe. Christian narratives proclaimed universal equality and unity, but they also adopted a vision of order of the universe that constructed a hierarchy that excluded the “other”. Gradually there was a paradigm shift and reason became the basis of knowledge of the world. With reason came the idea of progress and civilization. Civilization promised the advent of equality, because people with the help of reason could achieve the benefits of the European world and compare with them. But it also established inequality and discrimination. But in the twentieth century, the global narrative describing all law began to disappear from speech and from law. At the same time, many new narratives emerged, deconstructing the idea of a global order. As a result, the nomos of equality is filled with contradictions and is used only as an instrument of influence, because in the nomos of equality itself there is inequality and discrimination due to the perception of order as a universe. As a result, the concept of sovereign equality is rendered meaningless. The longstanding crisis of science and law is resolved by cultural change and the denial of the order of the universe; the metamodernist vision of the world assumes the possibility of reordering the legal order on the basis of the cosmos and the emergence of homogeneous pluralist regimes, each based on its own system of values. The Russian project of equality can be based on the ideas of religious philosophy and the concept of oneness. Such a remote project of utopia fills the insubstantial notion of equality with certain values and ideas.

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HSE University Journal of International Law. 2024;2(1):19–37

19–37

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Topical Issues

Application of Sectorial Principles of International Environmental Law for Systemic Interpretation of Norms of Economic and Environmental Treaties

Abaturova V.A.

Abstract

Recently, there has been a dynamic growth in the conclusion of international treaties regulating international environmental and economic relations. For example, the practice of the UN International Court of Justice, the WTO Dispute Settlement Body, and the International Tribunal for the Law of the Sea is clear evidence that cases involving environmental issues have been linked in one way or another to international economic relations. This fact confirms the interconnectedness of economic and environmental state interests. Thus, it becomes infeasible to settle disputes without taking these groups into account. It is worth noting that it is systematic interpretation that can be considered as one of the legal mechanisms for translating the concept of sustainable development into action. Proceeding from the ideological content of systemic integration, the author of the present article, on the basis of doctrinal research and practice of international judicial institutions, analyses four sectoral principles of international environmental law for the effectiveness of their use in the framework of systematic interpretation in five interstate proceedings, because despite their sectoral nature, they have formed into international custom. Thus, these environmental principles are a norm within the meaning of article 31, paragraph 3 (c), of the 1969 Vienna Convention on the Law of Treaties, which in its turn may be applicable to the interpretation of, inter alia, international treaties governing international economic relations.

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HSE University Journal of International Law. 2024;2(1):38–57

38–57

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A Conceptual Approach to the Legality Underpinning the Ownership of Islands and the Basic Procedures of Maritime Boundary Delimitation of Islands in an Inter-State Context

Safavinia K.

Abstract

The islands’ legal status, i.e. their territorial sovereignty and ownership in States’ position, is highly valued since it ensures their jurisdictional rights, e.g., access to the islands’ resources, within, to the vicinity, and beyond. Moreover, their significance would be related to navigational plus security reasons affecting the parent State. However, once determined, parties address their jurisdictional rights based on the outcome of the islands’ boundaries. The entitlement of maritime zones concerning islands has become problematic due to their unique features, including geographical and geomorphological conditions, their historical debates, the economic, cultural, political, and social factors that contribute to the sovereignty’s judgement process. Naturally, the path leads to disagreements, controversies, and disputes among States, impacting peace and security worldwide. In case of a dispute, the common practice would be the peaceful settlement of international disputes, the methods outlined in article 33 of the Charter of the United Nations. The international regime of islands is inherently interdisciplinary, and the underpinned interrelated disciplines are sensible by a concise review of each case. Consequently, this paper provides arguments regarding the sovereignty of islands. It analyses the legal reasons for non-tropical territorial sovereignty and ownership with a brief approach to the three cases of international law of the sea (hereinafter — ILoS). These cases are the Abu Musa Island in the Gulf, where undetermined ownership led to an incomplete boundary agreement between Iran and the United Arab Emirates (hereinafter — UAE) in 1974. Additionally, it covers the Spratly and Paracel Islands in the South China Sea known to be a long-running matter of urgency, and the Falkland Islands, where debates revolve around political inheritance, geographical proximity, international treaties, the principle of territorial integrity, effective occupation, and self-determination. As a result, the first objective of the research would be to conclude the reasons for territorial sovereignty, and the second — to shed light on the basics of maritime boundary delimitation (hereinafter — MBD) in an inter-State context, mainly regarding the status of single islands irrespective of their nature, unless mentioned.

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HSE University Journal of International Law. 2024;2(1):58–78

58–78

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Case Study

Combatant Immunity for Members of the Nagorno-Karabakh Army: A Case Study

Sushkov S.P., Neverova E.V.

Abstract

After Azerbaijan regained control over the territory of the Nagorno-Karabakh region, it detained a number of officials of the Nagorno-Karabakh Republic (hereinafter — NKR) and members of the Nagorno-Karabakh Defence Army (hereinafter — NKDA). The detainees face charges of participating in illegal armed formations and/or terrorism financing. The present case study explores whether the detainees might benefit from combatant immunity and whether Azerbaijan’s prosecution of those who fought for the NKR complies with international humanitarian law. Referencing the rules on prisoner of war status specified in Article 4(2) of the Third Geneva Convention, this paper concludes that members of the NKDA indeed fell into the hands of the “enemy”, NKDA prima facie complied with the “four requirements” for irregular armed formations per Article 4(2) and “belonged” to Armenia, that for these purposes can be deemed to have been engaged in an international armed conflict with Azerbaijan. If evidence available to the Azerbaijani authorities supports the view that NKDA members fit the requirements of Article 4(2) of the Third Geneva Convention, members of the NKDA should be treated as prisoners of war and lawful combatants. Therefore, being a member of the NKDA or supporting its activities should not be criminally punishable.

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HSE University Journal of International Law. 2024;2(1):79–87

79–87

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Commentary

A Commentary on the Judgment of the International Court of Justice of 31 January 2024 in Application of the ICSFT and CERD (Ukraine v. Russian Federation)

Nalgiev A.M., Polshakova V.V., Gavkalyuk A.B.

Abstract

This article highlights the most crucial aspects of the Judgment of the International Court of Justice of 31 January 2024 in Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (hereinafter — Judgement of 31 January 2024) initiated by Ukraine after the events in Crimea in 2014. Ukraine claimed that Russia violated numerous provisions of the said conventions by refusing to cooperate with Ukraine within the International Convention for the Suppression of the Financing of Terrorism (hereinafter — ICSFT) framework in investigating potential cases of financing of terrorist activities, which Ukraine was accusing the armed groups in Donetsk People’s Republic and Luhansk People’s Republic, as well as by carrying out a policy of racial discrimination against Crimean Tatars and ethnic Ukrainians, living in Crimea, in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter — CERD). Most of Ukrainian claims were fairly rejected by the Court, which was due to correct application by the Court of the relevant provisions of the ICSFT and CERD and balanced evaluation of the evidence submitted by the parties. At the same time, some of the Court’s conclusions seem to be not entirely consistent. Namely, the Court did not provide any substantial assessment of Russia’s defence based on the “clean hands” doctrine, apart from relying on its unclear status in international law and a formalistic argument of its inapplicability on the merits stage of the case. Equally questionable are the arguments on presumption of discrimination in relation to ethnic Ukrainians and violation of their rights to receive education in their native language, which were made purely on the basis of the fact that the number of students, receiving education in the Ukrainian language, substantially declined after 2014. Nevertheless, the generally restrained approach to the arguments regarding interpretation of the ICSFT and CERD and to the evidence submitted by the parties allows one to conclude that in the Judgement of 31 January 2024 the Court demonstrated clear understanding of its role and functions, as well as of the limits of its mandate under the ICSFT and CERD.

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HSE University Journal of International Law. 2024;2(1):88–103

88–103

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