Vol 1, No 1 (2023)

HSE University Journal of International Law. 2023;1(1):4-7

4-7

Theoretical Inquiries

The Politics of International Personality and Their Historical Inconsistency

Likhachev M.A.

Abstract

The author approaches the doctrine of legal personality from the point of critique of the international legal positivism in its retrospective analysis. Being crucial for understanding the law and its values, legal personality is at the same time the most discredited legal notion. This is due to the preponderant position occupied by the legal positivism — a paradigm which has established the supremacy of State, reduced personality to sovereignty, and ousted the human from the international legal realm. Fighting metaphysics of ius naturale the legal positivism created its own mythology of sacrosanct essence — the State endowed with its own will and interests to create international law and implement it of its own choice. Thus established statist order was proclaimed natural and reasonable. Despite that the realm of recognized international legal persons has always been arbitrarily determined by those who detained power having acted in accordance with their will, interests and context to strengthen their predominant position and to oppress others. While the necessary obstacles to acquire the personality cannot be discerned. On the contrary, the international jurisprudence and history of academia demonstrate voluntaristic character of designs as to the personality is taken against the background of the general context and personal values of decision-makers. The evolutive expansion of the bearers of international personality is not linear and extensive but is geared by the generally perceived need for inclusivity when law is expected to address living beings and ordinary life. The naturalisation and biological determinism as discursive tools to substantiate abstract and voluntaristic notions of positivism engender suppression and violence. There are no predetermined international legal nature limits as to international legal personality and its beneficiaries.

HSE University Journal of International Law. 2023;1(1):8–25

8–25

Non Adimpleti Contractus and a Problem of Overinclusiveness in International Law

Zelenovskaya T.S., Matorina V.A., Fomenko A.I.

Abstract

This article discusses the problem of diversification of grounds for treaty suspension in international law, focusing specifically on exceptio non adimpleti contractus (exception of non-performance), which is a defence allowing the party to refuse the performance of an obligation under the legal instrument if the other party has not performed its respective reciprocal obligation. In contrast to the leading opinion, exceptio non adimpleti contractus not only exists in public international law but also creates a tangible problem of its overinclusiveness. In conjunction with clearly formulated grounds for treaty suspension in treaty law and the law of state responsibility, exceptio non adimpleti contractus enables States to extricate themselves from inconvenient treaty obligations without the burden of stiff limitations of binding rules of international law. The fluidity of exceptio non adimpleti contractus is aggravated by the fact that very few cases of its application by States have been evaluated by international tribunals. This allows States to overindulge in applying it as an unjustified means of last resort. A commonly used normative approach will not help in treating legal loopholes like the one represented by exceptio non adimpleti contractus. This article posits that the most practical strategy to tackle the problem of overinclusiveness of international law is to rely on ‘reversible rewards’ or ‘sticks and carrots’ found at the intersection of international law and behavioural economics.

HSE University Journal of International Law. 2023;1(1):26–38

26–38

Topical Issues

Transboundary Taxation: ‘Cinderella’ of International Law Who Dreams to Become a Queen

Lifshits I.M.

Abstract

Over the century international law presence in the tax field has been limited by double taxation conventions only. In contrary with international trade regime embracing the GATT and the WTO or with the financial stability regime leaded by the IMF, in the tax sphere there was no multilateral treaty between substantial number of jurisdictions. State tax measures could be challenged only in international courts belonging to the other regimes: trade (WTO DSB), human rights (ECtHR), investment protection (investment tribunals). The case began to change in the wake of the financial crisis 2007–2009: in 2014 the OECD plan on addressing tax base erosion and taxable base shifting was approved (Addressing BEPS). It has been serving as an ‘umbrella’ which covers almost all international tax initiatives. Established by OECD and G-20 Inclusive Framework with the substantial number of participating jurisdictions has become a site not only for elaborating soft law recommendations on the amendment of the national legal orders but also as a body for treaty drafting. The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting has been elaborated and signed in short terms by 100 jurisdictions. The unique international law mechanism of this convention ensured amendment of 2000 double taxation agreements. More than 140 jurisdictions signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters which in fact created a global tax transparency regime. And at last Inclusive Framework on BEPS in 2021 announced that an agreement on the global tax reform was reached. Due to widely promoted digital services this reform changed the century based approach of the taxation of multinational enterprises in the places where they carry on business including permanent establishment. This approach is substituted by taxation of incomes derived from the marketing jurisdiction irrelative to factual presence. These changes as well as introducing the minimum corporate tax rate of 15 % shall be included in the new multilateral convention. All these novels prove a launch of the major reform in the transboundary taxation which will bring it to greater engagement with international law.

HSE University Journal of International Law. 2023;1(1):39–52

39–52

Between Law and Politics: Nuclear Non Proliferation and State-Induced Compliance in International Trade

Kondrashov O.R.

Abstract

The US economic sanctions (including sweeping export restrictions) against Iran and Russia, while presented as aiming at non-proliferation, appear to have ineluctably undermined the negotiations to revive the Joint Comprehensive Plan of Action, an agreement meant to deter Iran from pursuing nuclear status. The present paper approaches this situation as a telling example of how unrestrained export control can come into tension with international security, in this case within the nuclear non-proliferation regime. Drawing on this illustrative case, this article seeks to formulate more general conclusions as regards the potential side-effects of broad export restrictions, their necessary limits under WTO law, and the significance of the WTO system in the non-proliferation process. First, this paper contextualises export controls as part of this regime, and then addresses the causal implications of the above situation, concluding that it does demonstrate the involvement of a foreign policy element that is ultimately at odds with the stated goals of nuclear non-proliferation. Finally, the paper examines the substance of Article XXI of the General Agreement on Tariffs and Trade, which the sanctioning State will most likely use to justify its trade restrictions in a WTO dispute. It finds that a good faith interpretation and available practice indicate that the exceptions of Article XXI involve demanding standards and are to be interpreted so as to screen out, as far as possible, measures that covertly pursue other (e.g. foreign policy) interests. Meanwhile, non-WTO Member States could try to advance cases through friendly Members if they could establish a breach of WTO law that concerns the latter, though the chances are admittedly very thin. Ultimately, the WTO system is revealed as a valuable element in ensuring and maintaining international security and non-proliferation.

HSE University Journal of International Law. 2023;1(1):53–70

53–70

EU Carbon Border Adjustment Mechanism: Legal Challenges and Relevance in Light of the Current Sanctions Regime

Petrova T.P.

Abstract

Carbon Border Adjustment Mechanism (СBAM) is one of the European Union's Green Deal initiatives aimed at creating a “climate neutral” economy. The specific feature of this mechanism is the creation of additional costs when importing goods from non-EU countries, the production of which is associated with emissions of large amounts of greenhouse gases. The measure implies the reporting of carbon emissions amount and the sale of CBAM certificates depending on the amount of carbon emissions resulting from the production of imported goods. The author of the article analyses the dynamics of CBAM legal framework development as well as challenges that CBAM may face following its entry into force given the current trade restrictions introduced within the sanctions regime against Russia. The article also addresses challenges to CBAM in terms of its consistency with WTO law. The conclusion is made that new obligations for EU importers imposed by CBAM together with import bans and trade restrictions against the former major exporter of CBAM-covered goods to the EU would be very burdensome for EU importers. Furthermore, the compatibility of CBAM in its current form with WTO law non-discrimination standards is questionable; CBAM has been subject to criticism by the WTO members that are likely to be affected by the measure. This explains the recent shift of CBAM entry into force from January to October 2023 and could be a ground for further adjustment of CBAM rules.

HSE University Journal of International Law. 2023;1(1):71-80

71-80

Interdisciplinary Researches

The Personality of International Criminal (on Materials of Nuremberg and Other Judical Proceedings)

Evseev A.P.

Abstract

The article considers the personality of an international criminal as a complex category. Based on modern achievements in legal science, the author comes to the conclusion that this phenomenon should be studied not only from the standpoint of international law itself, but also from related legal disciplines: criminology, legal psychology, sociology of law, and others. Consideration of the problem under study is also impossible without referring to another complex phenomenon — system criminality, which is traditionally understood as the practice of committing mass lawlessness as part of a policy supported or directly implemented by the state. The essence of such a regime is the need to obey orders that run counter to modern civilized regulation. It is stated that when committing mass lawlessness, there is a specific combination of the personality of the offender and the criminal situation associated, as a rule, with an armed conflict, illustrated by the thesis of "ordinary people within extraordinary circumstances". As a consequence, this gives rise to a situation of moral choice in which potential violators of the norms of the international community find themselves. The following types of international criminals are distinguished: a manipulative politician, a "victim of circumstances", a bureaucrat, a "man of duty", a sadist, a profiteer. The article presents some personal characteristics of persons who have committed crimes under international law, in particular, socio-demographic, professional and others. The author comes to the conclusion that despite the fact that taking into account the identity of the offender when sentencing is a normative requirement enshrined in the statutes of organs of the international criminal justice, the scientific development of this phenomenon has not yet reached a level adequate to its significance. In general, the data obtained allow us to state that most often international crimes, especially at the middle and grassroots levels, are committed by people with certain defects in moral and legal consciousness, the main of which is conformism. Moreover, in the case of mass crimes, it acquires a special character, becoming a kind of psychological prerequisite for the individual's readiness to participate or condone mass lawlessness. It is stated that the current level of informatization of society renders untenable the reference to the ignorance of the subject regarding the commission of international crimes by the side of the conflict with which he identifies himself. The paper makes a final conclusion about the need to form a special field of knowledge located at the intersection of international law and criminology — supranational criminology.

HSE University Journal of International Law. 2023;1(1):81–96

81–96

Commentary

Ukraine v. Russia: a Commentary on the Order of 16 March 2022 on the Request for the Indication of Provisional Measures

Pimenova S.D.

Abstract

In the last two decades almost all disputes submitted by the States to the International Court of Justice are accompanied by the requests for the indication of provisional measures. This allows the applicants to learn the Court’s attitude to the arguments put forward in favor of the Court’s jurisdiction over the dispute and its attitude to the claims on the merits of the dispute. For this the parties use the criteria for the application of provisional measures developed by the ICJ such as prima facie jurisdiction and plausibility test. In this regard, the dispute between Ukraine and Russia was no exception. The ICJ has faced the necessity to evaluate creative, so to speak, legal arguments presented by Ukraine to institute the proceedings. The article examines the Court’s approach to the analysis of the criteria for the indication of provisional measures and highlights those moments that have caused the debate within the Court and led to the dissenting opinions of some of the judges. First of all, the plausibility test is actively criticized by the scholars and by the judges of the ICJ itself for ambiguity and uncertainty. However, as shown in the article, it was the uncertainty of this criterion that allowed the majority of the ICJ judges to recognize the fulfilment of this criterion in the present case, stating that the right of Ukraine arising from the text of the Genocide Convention not to become the object of military actions by a third state in order to prevent or punish the commission of genocide is plausible. The Court’s reasoning suggests that the issues of interpretation of the Genocide Convention in conjunction with the norms of the UN Charter and customary international law governing the use of force will be thoroughly examined in the Court’s judgment on the merits. In addition, it is noted that the arguments put forward by Ukraine in favor of the Court’s jurisdiction in this dispute and its justification of the necessity of application of provisional measures have caused a discussion in the academic community about the admissibility of such arguments that are on the verge of abuse of procedural rights by the applicant.

HSE University Journal of International Law. 2023;1(1):97-103

97-103