卷 2, 编号 3 (2024)

年: 2024
文章: 6
URL: https://journal-vniispk.ru/2949-5717/issue/view/21523
DOI: https://doi.org/10.17323/jil.2024.v2.i3

完整期次

Philosophy

Reflection on the Philosophical-Historical Roots of the Crisis in Western International Law Thinking

Carty J., Tolstykh V.

摘要

International Law appears to have lost both its possible civilizational foundations — the Greco-Roman/Christian doctrine of natural law and the contract theory, based on the “Humanist” confidence in the creative potential of individual will. In practice International Law — as it continues to exist — consists of either contractual arrangements among two or more States, or unilateral assertions of will by individual States, usually contested by other States. In this sense, International Law has become privatised, a matter of duelling individual perspectives, with no ontologically objective environment within which “warring” individuals can be embedded. This is the context in which the so-called Lauterpacht approach to International Law arises. It claims that the application of private law analogies should be suitable for international legal decision-making. Legal analysis and judgement then becomes a matter of weighing up the force of two or more competing wills. Another problem is that the social contract theory prioritises the striving for security as the central human characteristic. The legal discourse closes itself off from alternatives capable of questioning this idea. For one possibility, the idea that world society is a natural family of Nations is excluded. The new goal of the social contract, after the Great Depression and World War II, was to establish a liberal order wherein human opportunities would be significantly expanded and universal prosperity would be guaranteed. The basic tenet of liberalism is the dismantlement of the State, which is supposed to be the form through which individuals participate in their own governance. As this State retreats, private economic interests, regulated only by private law, if at all, take precedence. So, the long pathway from the 17th century confidence in the humanist construction of the State through the social contract of free and equal individuals ends up at present in a critical breakdown of order, where an antinomian spirit prevails at all levels of society, domestic, transnational and international. This diagnostic exercise offers no solution, although it does indicate obstacles which could, conceivably, be overcome.

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HSE University Journal of International Law. 2024;2(3):4–13

4–13

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Topical Issues

Compensation for Damage to Natural Resources versus Compensation for Environmental Damage (On the Example of Resolving the Dispute Between the Democratic Republic of Congo and Uganda)

Solntsev A.

摘要

In a case brought against Uganda in 1999, the Democratic Republic of Congo (hereinafter — DRC) asked the International Court of Justice (hereinafter — ICJ, the Court) to order Uganda to pay it $11 billion in compensation for deaths, looting, damage to natural resources and general economic damage caused by Uganda's military occupation of DRC regions. After lengthy proceedings, the ICJ ruled in 2005 that Uganda had violated international law by occupying parts of the eastern DRC region and supporting other armed groups during the conflict. In doing so, the Court directed the parties to reach a negotiated amount of compensation. In May 2015, DRC asked the Court to reopen the proceedings to address the issue of reparations for the failure of negotiations with Uganda. In February 2022, the ICJ judges finally ordered Uganda to pay $325 million in five annual instalments of $65 million beginning in September 2022. The Court divided the compensation into different categories of damages, including an estimate of $60 million for natural resource damages, including the looting of gold, diamonds, timber, and other resources by Ugandan forces or the rebels they supported. The article critically analyses the Court's approach to determining the calculation of compensation purely for natural resource damage rather than for environmental damage for the destruction of flora and fauna, comparing it with other similar cases in international practice. The conclusion is made that the approach used by the Court does not contribute to the development of uniformity in the assessment of damage in the period of armed conflict and a recommendation is made to develop a document on the methodology of calculation of environmental damage in the period of armed conflicts within the framework of United Nations Environment Programme.

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HSE University Journal of International Law. 2024;2(3):14–24

14–24

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Exploring International Courts’ Exercise of Incidental Jurisdiction: Towards Coherent Approaches Through Res Judicata

Silkin D.

摘要

This article is devoted to the study of the exercise of incidental jurisdiction by international courts and tribunals. It may be concluded from the existing case law where international courts and tribunals have exercised incidental jurisdiction that there are no consistent and coherent approaches to the exercise of incidental jurisdiction now. The article also analyses alternative techniques that may be used to avoid the necessity to exercise incidental jurisdiction. It is noted that international courts and tribunals may “escape” the exercise of incidental jurisdiction due to legitimacy concerns since making determinations on incidental issues may lead to the violation of the parties’ consent to the dispute settlement procedure. The article concludes that the existence of different approaches to the issue of the exercise of incidental jurisdiction could itself result in judicial fragmentation, which, in turn, reduces the legitimacy of international courts and tribunals. In this regard, it is concluded that it is necessary to develop a coherent approach to the exercise of incidental jurisdiction by international courts and tribunals. The author concludes that a consistent approach can be developed by applying the concept of res judicata, whereby the decision of an international court or tribunal is not binding except on the parties to a case within the framework of a particular dispute. It is also concluded that decisions on incidental issues lack the force of res judicata. Therefore, it is also resumed that international courts and tribunals can exercise incidental jurisdiction without overstepping states’ consent to dispute settlement. However, res judicata may not serve as a sufficient ground for the exercise of incidental jurisdiction on its own since the role of res judicata is limited in that regard.

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HSE University Journal of International Law. 2024;2(3):25–41

25–41

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Praxis

The Practice of Self-Recusal and Recusal of Judges of the International Court of Justice

Kiseleva O.

摘要

The article proposes to analyse the practice of the International Court of Justice, which is developing in the area of recusal and self-recusal of judges. Based on the proposed analysis, the author attempts to doctrinally understand not only the actual institution of the recusal of a judge, which is becoming increasingly relevant in modern international lawfare, but also the closely related categories of impartiality and independence. These are complex and multidimensional concepts which, in the context of the study of international justice, have not been adequately addressed in Russian international law scholarship. Collisions of the legal status of a judge can be conditionally divided into two types: conflicts of permanent and conflicts of temporary incompatibility, which is reflected in the ICJ Statute and the practice of this Court. Almost every court, including the International Court of Justice, has mechanisms to deal with conflicts of interest among judges that create or are likely to create bias, or create or are likely to create doubts about independence. However, the jurisprudence of the ICJ in this regard is of particular interest because of the certain authority of the Court and long experience in dealing with such issues.

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HSE University Journal of International Law. 2024;2(3):42–51

42–51

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Commentary

Commentary on the Council of Europe Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law

Martynova E., Sushkov S., Evseev A., Shtodina D.

摘要

The article is one of the first attempts to provide a scientific commentary on the Council of Europe Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law of 2024 (hereinafter — the Convention). The authors analyse both general characteristics of the Convention — its legal nature, object and purpose — and specific issues concerning the implementation of the principles of democracy and the rule of law enshrined in this international treaty, the procedure for the use of legal remedies, the scope of parties, as well as the mechanisms of implementing the Convention at the national level. Furthermore, the article contains a comparative legal analysis of this treaty with the European Union Act on Artificial Intelligence, which, prior to the adoption of the Convention, constituted a unique exemplar of the most comprehensive international legal document regulating the utilisation of this technology. The authors conclude that, despite embodying a “soft” model of international legal regulation in the sphere of artificial intelligence, the Convention is nevertheless capable of stimulating the development of domestic legislation in the States Parties. Furthermore, some of the approaches used in this treaty could be considered for the development of international legal instruments dedicated to artificial intelligence within the BRICS, SCO and/or EAEU.

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HSE University Journal of International Law. 2024;2(3):52–63

52–63