Vol 1, No 4 (2023)
- Year: 2023
- Articles: 9
- URL: https://journal-vniispk.ru/2949-5717/issue/view/21520
- DOI: https://doi.org/10.17323/jil.2023.v1.i4
Full Issue
Theoretical Inquiries
Systemic Interpretation of the European Convention on Human Rights and its Protocols: Creeping Fragmentation of State Responsibility
Abstract
The article discusses how the European Court of Human Rights (hereinafter — ECtHR, the Court) influences the way the European Convention on Human Rights (hereinafter — ECHR, the Convention) is systematically interpreted in the context of state responsibility. The article highlights that interpretation of the Convention and general principles of state responsibility is crucial for holding states accountable, ensuring justice for victims, and upholding the credibility and coherence of international law. For this reason, it is essential for the Court to carefully interpret the ECHR within the broader context of international law. The authors believe that one of the most practical strategies to analyse this issue is through determining the consistency of the European Court of Human Rights’ approach to state responsibility issues, elaborated through its case-law, with general customary rules of international law. It can be effectively performed through the lens of three fundamental problems: jurisdiction and attribution interaction problem; issues of state responsibility for the acts of international organisations, paying special attention to peace-keeping operations; and third-state responsibility problem. The analysis shows that the Court creates its own criteria, often conflicting with each other, by ignoring established general rules of international law on state responsibility. Lastly, the authors show that while the Court often acts as a lawmaker, it should create the law in a unified way to apply it fair and equally for the purposes of human rights protection. It is not the states and their particular interests that should govern the application of law by the Court. In the end, the authors come to the conclusion that the policy behind the Court’s decisions is not only predominantly inconsistent with the general customary rules of international law and the object and purpose of the Convention, but also results in the creeping fragmentation of the international law on state responsibility.
HSE University Journal of International Law. 2023;1(4):5–17
5–17
Discussion
Forms and Content of International Cooperation of EAEU with International Organisations on the Example of International Cooperation in the Field of Labour Migration and Social Defence
Abstract
Eurasian Economic Union (the EAEU) as a subject of international law has a right to participate in international affairs, including the conclusion of international treaties. The author, paying considerable attention to the issue of legal personality of EAEU, concludes that even in cases when a treaty is concluded within the scope of the Union’s competence, i.e. regarding foreign trade activities in terms of trade in goods, the external competence of EAEU is partial since at all stages of concluding international treaties approval of member states is needed. Other forms of international cooperation of EAEU are also analysed, for example conclusion of memoranda of cooperation and legally significant interaction with international organisations and international integration associations. The author suggests classification of the forms of international cooperation of EAEU, which is supplemented by interaction with the third states, international organisations and international integration associations in the format of dialogue, information exchange and joint events. Forms and content of international cooperation of EAEU in the field of labour migration and social defence are explored in the article in detail. Such interaction is carried out by Eurasian Economic Commission by conclusion of memoranda of cooperation and by interaction in the dialogue form. The analysis of the content of different interaction forms with international organisations has shown that cooperation under memoranda is more systematic, involves the development of plans for joint activities for a certain period, formation of working groups, and regular consultations. Cooperation of EAEU with international organisations in the field of labour migration and social defence is among prior directions of international activities of EAEU.
HSE University Journal of International Law. 2023;1(4):18–29
18–29
Forms of International Cooperation of the Eurasian Economic Union: Legal Aspect
Abstract
The integration in Eurasia has been going on for more than 30 years. A new milestone has been reached with the creation of the Eurasian Economic Union in 2014. In addition to the classical goals of a modern organisation, an important task for EAEU is to build an extensive network of international contacts. The current structure of international relations has strengthened the formation of the EAEU as a new pillar of the Eurasian region. However, neither the law of the EAEU nor the scientific literature contains the category of ‘form’ of international cooperation or a list of such forms. The purpose of this paper is to identify the mechanisms through which the EAEU carries out international activities, to analyse them, and to develop proposals for their improvement. The author identifies three forms that are the framework of international cooperation of the Organisation: international treaties, observer status, and memorandums. Each of these forms is studied in detail with the identification of specifics, advantages, and disadvantages. The paper is based on the analysis of the legal framework of the Union, the author takes into account economic, political factors, and positions of the member states. The study employs a comparative method, appealing to the experience of other international organisations and states using similar legal mechanisms. Finally, the author summarises all three forms of international activity and suggests creating an updated form using the provisions already available in the EAEU Treaty. The formula of this mechanism includes the following elements. First, the formation of proposals on potential partners with a forecast of economic and political effects of cooperation using the resources of the Advisory Committee on International Activities. Second, the application of a memorandum of cooperation, but with a step-by-step deepening into a specific sphere of economy. Thus, the reformed mechanism should lead to the achievement of the central goal of the Organisation — the development of the economies of the Member States by bringing investors and entrepreneurs to new markets.
HSE University Journal of International Law. 2023;1(4):30–48
30–48
49–51
52–53
Interdisciplinary Researches
Bringing Sustainable Development to the Corporate Level: Boards’ Cognitive Biases towards ESG and Relevant Debiasing Interventions
Abstract
The proposed research is an attempt to view how internationally recognised principles of sustainable development can be implemented at the corporate level, in particular, how the company’s board of directors should respond to climate and environmental challenges. Specifically, the paper examines the problem of reducing board members' repeated cognitive biases towards such a mainstream governance concept as ESG (Environmental, Social and Corporate Governance). The research focuses on the five most well-known cognitive biases of a board towards ESG, often encountered and described conceptually in behavioural literature: over-optimism, status quo effect, confirmation bias, hyperbolic discounting, and groupthink. Subsequently, the paper draws recommendations for overcoming or mitigating these biases by introducing and describing several debiasing interventions and quality control tools. These tools are conditionally divided into three groups: changing incentives, optimising choice architecture, and debiasing training. The author believes that incorporating behavioural insights into an analysis of the board’s ESG commitment would bring a fresh perspective to this research area, which now is typically dominated by a rational choice framework. The paper combines theoretical analysis of the existing literature in law, behavioural economics and psychology with qualitative research application based on data obtained from first-hand observations, board empirical studies, questionnaires, and focus groups.
HSE University Journal of International Law. 2023;1(4):54–74
54–74
The Procedural Status of a Defendant in the International Criminal Justice
Abstract
The article outlines the main elements of the procedural status of the defendant in international criminal justice bodies. The need to study this status together with the criminological concept of “personality of the criminal” is emphasised. This significantly enriches the doctrine of international criminal law and helps bridge the gap that has emerged between international law and the sciences of the criminal legal cycle. A conclusion is made about the special nature of the right to a fair trial, which has significant differences in international criminal justice compared to conventional law. Particular attention is paid to the right of the accused to defend himself in person. It is noted that if in domestic criminal proceedings this right is taken for granted, then taking into account the specifics of proceedings in international courts and tribunals (their cumbersomeness, a significant number of witnesses interrogated, etc.), this right can degenerate into its opposite, turning from a procedural guarantee into a means of abuse by the defendant. The article summarises the need to take into account, among other things, the individual features of the defendant, which make it possible to more correctly resolve the issue of bringing him to criminal responsibility under international law.
HSE University Journal of International Law. 2023;1(4):75–91
75–91
Commentary
“Indirect” Decision: Standard of Review in Michael Anthony Lee-Chin v. Dominican Republic
Abstract
This commentary critically analyses the investment tribunal ruling in Michael Anthony Lee-Chin v. Dominican Republic, described as incorrect by its arbitrator M. Cohen in his dissenting opinion. The article delves into how the tribunal assessed the Dominican Republic’s handling of the health and environmental issues at the Duquesa landfill, the largest in South America. It scrutinises the tribunal’s reasoning against the backdrop of established arbitral practice, particularly concerning national security clauses and standards of review. The concluding section expresses disapproval of the tribunal’s erroneous determinations.
HSE University Journal of International Law. 2023;1(4):92–101
92–101
Review: Textbook on International Criminal Law: (ed. by A. Naumov, A. Kibalnik)
HSE University Journal of International Law. 2023;1(4):102–105
102–105