Aleхey Ispolinov

In the present article the author considers main arguments and conclusions made by the International Court of Justice in its Advisory Opinion of 1951 in the Reservations Case from historical perspective as well as general political and legal context. The analysis performed by the author reveals related advantages as well as drawbacks of the compatibility test and the system of the horizonal individual control over the reservations suggested by the Advisory Opinion. The author argues that despite of the obvious weak points of the suggested test and individual control over the reservations the Advisory Opinion of 1951 remains one of the most significant achievements of the Court radically changing the status of the reservations and paving the way to successful codification of international law.

The article examines the approaches elaborated in the decisions of international courts and arbitration tribunals as well as in the writings of the researchers in international law towards stale claims, i.e. claims submitted after a passage of considerable time. The courts and arbitration tribunals dealing with the stale claims applied the doctrine of extinctive prescription as a tool to deny such claims in case where the applicable international treaty does not contain any fixed rime limits. Nevertheless, current practice reveals that the status of the doctrine of extinctive prescription as one of the principles of International law remains vague and problematic due the position of the International Law Commission reflected in its Commentary to the Draft of the Articles of state responsibility for internationally wrongful acts and some recent decision of the investment arbitration tribunals. It’s argued that the treaty-based time limitations appear in all cases of establishment of the permanent courts with compulsory jurisdiction and access of private persons. One of main rationale for such time limitations is a necessity to ensure legal certainty and procedural fairness. A current practice of the modern international courts especially of the courts of the regional integration and human rights courts shows a high degree of convergence that in full analogy with national legal systems there are different treaty-based time limitations for different claims and different types of claimants.

After 6 years from the start of the activity of the Court of the Eurasian Economic Union the practical necessity of making some changes and amendments to the Statute and Regulation of the Court seems to be obvious. It’s suggested that all changes and amendments could be divided into two big groups depending on how such amendments will be viewed by the member-states of the Eurasian Economic Union. A first group comprises measures aiming to expand subject matter and personal jurisdiction of the Court whose powers had been significantly and intentionally weakened by the members-states of the EAU from its very establishment. A probability of such amendments looks quite low as it depends on the readiness of the members states to re-evaluate the risks and concerns perceived by them which led to the limited jurisdiction of the Court. A second group consists of procedural and organization changes aiming to remedy omissions and weak places in the day-to day activity of the Court detected during first years such as lack of any time limits or improvement of appellate review. Such measures are not connected with expansion of the jurisdiction of the Court, so their probability seems more optimistic.