International Law - rubric International courts
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International courts
Gatina D.R. - Prudential exception in the case Argentina-Financial Services pp. 1-11

DOI:
10.25136/2644-5514.2021.2.35824

Abstract: This article discusses the conclusions of the World Trade Organization Dispute Settlement Body (WTO DSB) on the case “Argentina – Financial Services” pertaining to interpretation of the Paragraph 2 (a) of the Annex on Financial Services to the General Agreement on Trade in Services (GATS), which contains a prudential exception that allows the countries, regardless of their obligations in accordance with GATS, taking measures on the national level that are aimed at maintaining stability in the domestic financial market. The need for studying the approaches applied due to interpretation of this norm, is substantiated by the ambiguous wording of the Paragraph 2 (a) of the Annex on Financial Services, which raises questions on its proper application. The author attempts to give assessment to the decisions of the Arbitration Group on the interpretation of prudential exception, as well as shed light on the instances of its application. This article is the first work within the Russian legal science dedicated to examination of the peculiarities of application of prudential exception. Having analyzed the corresponding provision of GATS, as well as the decisions of the Arbitration Group on the case “Argentina – Financial Services”, the author concludes that virtually any measure introduced by the government on the national level, which serves the purpose of risk prevention that may create a threat to the stability and integrity of the financial market of the country and normal activity of the participant of the financial services market, can fall under Paragraph 2 (a). At the same time, the key and practically the only obstacle for abuse such norm consists in the need to adhere to the principle of good faith in the context of implementation of the corresponding prudential measures.
Nureeva L.R. - Ethical standards of conduct of the Prosecutor of the International Criminal Court. pp. 1-9

DOI:
10.25136/2644-5514.2022.2.37953

Abstract: The article examines normative documents that establish standards and requirements for ethical and professional behavior of prosecutors of the International Criminal Court. The history of the formation of the International Criminal Court is considered. The analysis of the procedural position of the prosecutor in the system of international justice is carried out. The requirements that persons recommended for appointment to the post of Prosecutor of the International Criminal Court should have are considered. The main ethical standards of behavior of the staff of the Office of the Prosecutor of the International Criminal Court have been identified. The main normative document of the International Criminal Court - the Rome Statute is considered. The main tasks and fundamental role of the Prosecutor's office in the investigation or prosecution of international crimes are investigated. The relevance of this work lies in the need to create a unified code regulating the ethical behavior of international prosecutors, as well as a strict selection of candidates appointed to the positions of international prosecutors. The rapidly changing situation in the world and in the system of international justice needs to update the previously existing requirements put forward to persons exercising international justice. The regulatory framework governing the activities of prosecutors is not so extensive. There are many areas of activity of persons exercising international justice where there are no normative standards of behavior, professionalism and independence. In the system of international justice, there is currently no specialized body regulating the activities and giving a legal assessment of the actions (inactions) of the Office of the Prosecutor.
Katrovskaya E.A. - The 2022 Sanction Challenges for International Commercial Arbitration and Methods of Resolving them pp. 1-9

DOI:
10.25136/2644-5514.2023.1.39543

EDN: DLDPFR

Abstract: The subject of this study is the impact of the sanctions policy imposed against the Russian Federation in 2022 on international commercial arbitration. For that purpose, we analyse the restrictive measures that have had a major impact on dispute resolution in international commercial arbitration involving Russian and sub-sanctioned persons. An important part of the study is an analysis of current practice in this area and the difficulties arising in order to develop recommendations and possible means of overcoming them for the continuation of international arbitration in Russia and access to justice for sanctioned persons. Over recent years, international commercial arbitration has become one of the most common means of dispute resolution, not only abroad, but also in the Russian Federation. However, the international nature of arbitration makes it highly sensitive to sanctions. Since the implementation of anti-Russian sanctions, especially in 2022, it became evident that the field of international commercial arbitration faces inevitable difficulties in terms of cooperation with foreign jurisdictions and its operation in general. The impact of restrictive measures on international commercial relations cannot be overestimated, with the number of cross-border disputes only increasing, which makes international commercial arbitration more than relevant and requires new solutions to overcome existing challenges. The research leads to a number of conclusions: the 2022 sanctions have certainly affected the world of arbitration but have not put an end to arbitration institutions in general; they have led to a global reorientation towards Asian arbitral institutions and a strengthening of Russia's position as a place for arbitration; parties to arbitration proceedings are finding new and successful solutions to the restrictive measures; many foreign jurisdictions are slowly softening their policy towards arbitration.
Smirnov V.V. - Some problems related to the supervision of the activities of the International Criminal Court pp. 1-12

DOI:
10.25136/2644-5514.2023.3.40921

EDN: ALQKHB

Abstract: The article deals with the problems related to the supervision of the activities of the International Criminal Court, including some aspects of the activities of one of the mechanisms of control and supervision of the work of the International Criminal Court the Independent Oversight Mechanism. The author examines in detail how the activities of the ICC affect the interests of the Russian Federation and other countries, and also analyzes the possibilities for the state to monitor and supervise the activities of the ICC if the ICC Statute has not been ratified and the country is not a State party. The author considers the recommendations made by the expert group concerning the work of the Independent Oversight Mechanism. The object of the study is the social relations developing in the field of activities of officials of international criminal justice bodies related to the work of an Independent oversight Mechanism. Topics related to the responsibility of officials of international judicial institutions, their accountability, as well as the control and supervision of their activities have been little studied. Meanwhile, although Russia is not a State party to the ICC Statute, nevertheless, the judicial acts of this international judicial body have an impact on the reputation of the state. The author comes to conclusions, firstly, about the need to develop scientific thought in this direction, in order to increase the effectiveness of protecting state interests, and secondly, about the possible consideration of an initiative to create an independent monitoring mechanism that would function within the framework of the UN Security Council.
Bondarenko I.I. - Comprising elements and criteria of expropriation and exceptional cases of finding expropriation to be lawful in the practice of international arbitration pp. 38-46

DOI:
10.7256/2306-9899.2016.2.19080

Abstract: The subject of this research is the norms of international law that regulate the issues of lawfulness of state actions that result in compulsory seizing of investor’s property. The goal of the work is to characterize the legal phenomenon of expropriation and determine its mandatory criteria. A special attention is given to the examination of exceptional cases, in which expropriation is found to be lawful. The author has personally translated the used sources of international expropriation law. The legal complexity of determining expropriation (expropriation measures) consists in the fact that there is no codified or otherwise unified document that establishes the rights and obligation of the state and foreign investor. In resolution of investment disputes, the international arbitrations individually characterize a number of evaluation categories: substantial involvement into the rights of the investor, duration, and intent, which is the cause for collisions of legal regulation. The author’s special contribution into the research of this subject consists in a sequential and classified presentation of current trends of hearing of expropriation cases; ordering of the types of expropriation, established and acknowledged criteria for its determination, and its legality in exceptional cases.
Afkhazava D.G. - International Court of Justice and law on the use of force pp. 38-55

DOI:
10.25136/2644-5514.2020.2.32500

Abstract: The goal of this research is the determination of practice on interpretation of law on the use of force by International Court of Justice. The article explores four cases: Corfu Channel, military activities in Nicaragua and against Nicaragua, oil platforms (the Islamic Republic of Iran against the United States), and armed activities on the territory of Congo (the Democratic Republic of Congo against Uganda). The author analyzes the question of legitimacy of the use of force: conclusion on nuclear weapon, and conclusion on the question of construction of the Wall. The article applies the method of synthesis for determination of general approach of the court; as well as comparative method to reflect the development of case law in the sphere of the use of force. The author advances an ides on establishment of legal institution on the use of force. The substantiation for this is traced in the decisions of International Court of Justice. Presence of the full-fledged and universal institution on the use of force would contribute to decrease of controversial grounds for the creation of new doctrines.
Romanov R.V. - Reasonable doubts: standard of evidence in the international criminal courts pp. 39-46

DOI:
10.7256/2306-9899.2016.4.21141

Abstract: This article is dedicated to the analysis of the “beyond a reasonable doubt” standard of evidence, as well as practice of its implementation by the institution of international criminal justice. The author present a historical overview of the stages of application of the aforementioned standard of evidence in international criminal courts and tribunals. The article raises a question on the ambiguity of the criteria, according to which a facts is considered proven beyond a reasonable doubt, and moreover, such ambiguity is present not only in the area of international law, but also national law of the states of Anglo-Saxon model of criminal procedure. The author examines the court rulings of the International Criminal Tribunal for the former Yugoslavia. The conclusion is made that the implementation of the “beyond a reasonable doubt” standard within the international criminal procedure requires a precise determination of its content, including formalization of the procedure and evidence in the rules of international courts and tribunals, as well as minimal list of elements which must be established by the court.
Savryga K.P. - International criminal responsibility of the staff members of private military and security organizations pp. 52-64

DOI:
10.7256/2306-9899.2015.1.14106

Abstract: This article reviews the international criminal responsibility of private military and security organizations. It offers examples and presents types of international criminal responsibility of such subjects. The author claims that they are much more likely to commit an international crime than regular military personnel. This article reviews not only the question of responsibility of the front line staff of the private military and security companies, but also management, which can directly organize or be an accessory to a crime, or abet the criminal activity of their staff members. The issue of the responsibility of the management and front line staff members, as well as the various forms of their possible complicity in commission of international crimes will be examined. Analyzing the practice of International Criminal Tribunals of the former Yugoslavia and Rwanda, as well as the practice of the International Criminal Court, the author comes to a conclusion that the staff of the private military and security companies carries international criminal responsibility on the regular basis. In addition to that, representing a legal entity as an employer does not protect its principal or the management from international criminal responsibility not only in the cases of direct involvement into a crime, but also abetment and participation in a joint criminal enterprise.
Smirnov V.V. - Actual problems of accountability and responsibility of officials of international judicial institutions pp. 58-69

DOI:
10.25136/2644-5514.2022.2.37945

Abstract: Currently, there are a number of problems of legal norms in the work of international judicial institutions, which are considered in this study. The object of scientific research is the legal basis for regulating the accountability and responsibility of officials of international courts and tribunals. The subject of the study is a general overview of the issues of accountability and responsibility of officials of international judicial institutions, and especially judges. The author examines in detail the existing problems of legal norms related to the above issues. The paper defines the terms "responsibility", "accountability", "official", examines the existing types of responsibility of officials of international justice bodies, procedures for bringing to justice.   Accountability of officials of international judicial institutions is extremely important, since international courts and tribunals in their activities often exceed the powers provided for them, introduce new "norms" of international law that contradict generally recognized norms, and sometimes the Statutes of these institutions. The paper also presents options for possible solutions to problems, in particular, the author suggests working out a transparent legal mechanism for holding officials accountable, providing the general public with access to statistics on the effectiveness of judges of international courts and tribunals, and continuing to further improve the "transparency" of both the judicial process and all activities of international judicial institutions.
Fedorchenko A.A. - Application of the international human rights law to the participants of the international criminal trial. pp. 64-72

DOI:
10.7256/2306-9899.2014.2.11703

Abstract: The author evaluates the issue of application of international human rights law to the participants of the international criminal process in the ad hoc tribunals and the International Criminal Court. The author evaluates the documents, such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, the European Convention on Human Rights. The author also evaluates the judicial practice supporting application of international human rights law in the international criminal process. The author considers that the international criminal courts themselves are to an extent human rights bodies, formed for the guarantees of human rights, since their statutes directly criminalize the acts, such as genocide.  As a result, application of international human rights law to the participants of the international criminal proceedings is viable.  Additionally, he notes that the statutes of the international criminal courts refer to the international human rights law. The author provides examples of judicial practice showing applicability of the general human rights law both to the procedural and material issues in the case.    
Shinkaretskaya G.G. - The concept of evidence in the international judicial process pp. 70-81

DOI:
10.25136/2644-5514.2020.2.32629

Abstract: This article discusses evidence in the judicial process as the information serving as grounds for court’s decision. In the international judicial process, which mostly of challenge character, significant role belongs to the sides, and the sides present the courts with information that substantiates each of their positions. The court, being an independent body, evaluates and selects information that it considers necessary to hear the case. It is advanced that the theory of international justice still lacks established and generally accepted procedure for selection of information. Such rules are formed in the judicial process and admissibility of these rules by the states or other subjects of international law. This work highlights the importance of determining comparable approaches towards the process of evidence in various international judicial bodies. Special attention is given to the issues of distribution of the burden of proof, methods, forms and standards of evidence applicable in the international judicial process.
Kalamkaryan R.A. - Involvement of the Russian Federation in the activities of the International Court of Justice in the sphere of guarantees of international law and order. pp. 85-118

DOI:
10.7256/2306-9899.2013.2.691

Abstract: The article shows the value of involvement of the Russian Federation in the activities of the International Court of Justice in the sphere of guarantees of international law and order. The article includes the historic analysis of the institution of a universal judicial body. The author studies the characteristics of this judicial body, which make it the most influential element within the system of maintaining the legal order and compliance with the international law. The author compares it with the arbitration. He evaluates the importance  of the international legal dispute regulation by an independent international judicial bodies. The author also describes the potential of greater role for the ICJ, and acts of states in the ICJ as reflecting  the principle of supremacy of law. The author also analyzes some aspects of judicial procedure, definitions of rule of law and universal legal order, as well as the key elements and characteristic features of the universal legal order.  
Fedorchenko A.A. - Law of the International Criminal Tribunals. pp. 87-103

DOI:
10.7256/2306-9899.2014.1.11639

Abstract: The international criminal tribunals form a unique type of international judicial institutions.  They were formed in accordance with the Resolutions of the Security Council of the UN, they should have formulated their procedural norms themselves, and they also had to choose applicable law for their cases independently.  The author considers that the international criminal tribunals apply the sources of law, which are not directly provided for them.  However, this is not abuse of law.  Active use of implied and inalienable competences is typical for international judicial institutions, since the founding documents for these bodies and their inner procedural documents usually contain general provisions on their procedure, and basic rights of participants of such proceedings.  That is why, the international criminal tribunals have formed and keep forming their own internal law, and they choose the sources of applicable law according to the methods formed in other international courts.
Gorian E., Netrusov Y. - Representation of state interests in the International Court of Justice: procedural aspects pp. 87-102

DOI:
10.7256/2306-9899.2015.4.16226

Abstract: The subject of this research is the aspects of the procedural protection of state interests in the International Court of Justice and the role of lawyers in the legal process. The article examines the role of advocacy in the resolution of international disputes at the international courts; requirements for individuals that represent states in the International Court of Justice; key aspects of written and oral proceeding in the International Court of Justice. The authors point out the necessity to prepare future specialists in the area of international law with emphasis on the practical application of the acquired knowledge. In order to effectively represent the state interests in the International Court of Justice, it is necessary to consider the procedural peculiarities aimed at comprehensive, objective examination of the positions of the parties involved in the case. The state must have a fundamental approach towards preparation of their specialists, take into account the scientific and professional potential, as well as the practical experience of the individuals called to represent the state in the international judicial and arbitration institutions.
Shinkaretskaia G.G. - International courts and the development of international law. pp. 141-167

DOI:
10.7256/2306-9899.2014.4.11642

Abstract: The author studies the issues of participation of international courts in the development of international law. The author studies this issue from the standpoint of the judicial practice of various international courts. Within the framework of this issue the author also studies the scientific doctrine. The author considers that via formation of precedents or by participating in the codification of decisions the international judicial institutions take part in the general process of development of the international law. The author also singles out a novel matter in the activities of the judicial institutions - de facto delegation of law-making function to such institutions. Quite a vivid example is posed by the International Tribunal for the Former Yugoslavia, since Art. 15 of its Statute directly provides that the judges of the ICTY shall accept procedural rights for giving testimony for the pre-trial investigation, invstigation and appeal, taking testimony, protection of victims and witnesses, etc. Finally, the author singles out the specific method for participation of courts in the law-making - consultative opinions.
Fedorchenko A.A. - Current situation in the international law regarding the status of a victim of an international crime. pp. 168-182

DOI:
10.7256/2306-9899.2014.4.11701

Abstract: The author studies the issues regarding legal status of a victim in the international law.  The author studies both the univeral law and the regional (European) law. The author also studies the role of the Statutes of the international ad hoc tribunals in defining statuses and rights of victims. The author notes that at the universal level there is almost no international legal regulation of rights of victims of international crimes, and the existing regulation is mostly "soft law". The regional acts in Europe provide some regulation of this matter, and they also have limited application. The author explains these imperfections with the fact that criminal law is the sphere, where the states are unwilling to limit their sovereignties. Therefore, development of norms on rights of victims at the international level is rather slow, and it seems to be a complicated problem due to the  significant discrepancies in legal and political positions of the states.
Kalamkaryan R.A. - Role of the International Court of Justice in maintaining international legal order pp. 184-214

DOI:
10.7256/2306-9899.2013.1.690

Abstract: The article shows the role of the International Court of Justice  in maintaining of international legal order. The article includes the historic analysis of the institution of a universal judicial body. The article contains analysis of the the characteristics of this judicial body, which make it the most influential element within the system of maintaining the legal order and compliance with the international law. The author compares it with the arbitration, evaluates the nature of the international legal dispute, the principle of supremacy of law, as well as good faith and compliance with the international legal obligations within the domestic legal order. The article includes analysis of various characteristic features of the ICJ as an international judicial body in comparison with the national judicial bodies of the states. The author also analyzes some aspects of judicial procedure, definitions of rule of law and universal legal order, as well as the key elements and characteristic features of the universal legal order.
Fedorchenko A.A. - Participation of a victim as a claimant or an accuser in the international criminal process. pp. 227-248

DOI:
10.7256/2306-9899.2014.3.11702

Abstract: The article concerns the issue of participation of a victim in the international criminal process as a claimant or an accuser, taking an example of the judicial proceedings of the International Criminal Court and international ad hoc tribunals. The author studies the issues of participation of victims in the International Criminal Court, specific features of their participation at the various stages of international criminal process, possible forms of their participation in the international criminal process, obligations of the Secretariat of the ICC in guaranteeing participation of a victim in a process, participation of victims in the proceedings in the international criminal ad hoc tribunals. The author also evaluates specific issues regarding complicated character of participation in the international criminal process (for example, large number of victims), problems of lack of wish of the victims of crimes to take part in a public hearings. The author makes a conclusion that participation of a victim in the international criminal process is organized with the various provisions of the ICC Charter, so that the Prosecutor would not ignore their interests in his activities, and also so that the right for compensation would not become meaningless. Nevertheless, the author points out the weakinesses of these provisions regarding participation of a victim at some stages of the international criminal process.
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