1. Implementation of acts of the bodies of international organizations in the Russian Federation. 3.
2. Compare international norms on trademarks and the provisions of the part of the fourth Civil Code of the Russian Federation. fifteen
3. Task 19.
References 25.
1. Implementation of acts of the bodies of international organizations in the Russian Federation.
Rising integration processes determine the closer interaction of national and international law. Their mutual influence becomes a powerful factor in legal development in the modern world. In the metaphorical plan in front of us "intersecting parallels", when two legal systems are somewhat converge. There is such a kind of interstate associations such as EU, CE, CIS with a stricter internal structurally regulatory organization.
Moreover, the mutual influence of domestic law and "external" legal systems is very peculiar. Sustainers of national law as it were adjoin the relevant international regulatory arrays or industries (international educational, environmental law et al.), becoming a certain extent to their source. In turn, the sectoral system of national law affects the sectoral specialization of international law. Yes, and the general theory of state and law can now be developed purely on a national basis, because international law and comparative law is expanding its source database.
In state-legal practice, acute problems arise, to solve which it is necessary to creatively develop a system of international norms and the mechanism of their implementation and action in the national legal system, including in the Russian. Moreover, the emphasis is on the implementation of mainly internationally contractual rules. The most thoroughly interested problems are developed lately I.I. Lukashuk and S.Yu. Magging. The importance of generally accepted principles and other international norms should not be underestimated. In addition, in the framework of interstate associations, peculiar acts are accepted. The specifics of international legal acts and norms are explained by the features of methods and procedures for their implementation. In the legal system of the country, these acts "are found" with other related, and influence both lawmaking and law enforcement.
Let's start with the clarification of the ratio of international legal personality and sovereignty of states. In international acts, such as the European Energy Charter, the sovereign rights of states are recognized. From here, the main question is inevitable: what are the criteria for compliance with international legal norms of the Constitution and Russian legislation? Let's call them:
a) ensuring the national - state interests enshrined in Art. 1, 2, 3, 4, 8, 10, 15 of the Constitution of the Russian Federation;
b) compliance with the principles of the Russian legal system and the construction of the legislation and its industries, the main legal concepts;
c) maintaining sustainable competence of the subjects of Russian law and their relationship;
d) the protection of human rights and freedoms and citizen;
e) ensuring the sustainability of national economy parameters;
(e) The presence of procedures for the implementation of norms and the protection of legitimate interests of citizens and legal entities.
IN foreign statesah you can meet peculiar constitutional formulas. According to the Constitution of Spain, an organic law may solve the conclusion of contracts for participation in international organizations. The conclusion of some international treaties requires the prior permission of parliament. According to the Constitution of Italy, the law and order of the country is consistent with the generally accepted norms of international law.
1. The concept and form of the implementation of the norms of international public law
Sales- This is the embodiment of the norms of international law in the behavior, the activities of states and other subjects, this is the practical implementation of regulatory prescriptions. In the official documents of the United Nations, the term "implementation" was distributed in various theoretical work of publications (from English. implementation - implementation, carrying out in life).
You can select the following forms of implementation.
In the shape of complianceimplemented prohibitions. Substituities refrain from performing actions that are prohibited by international law. For example, under an agreement on the non-proliferation of nuclear weapons in 1968, some states (possessing nuclear weapons) are obliged to not transfer nuclear weapons to other states, not to help, not encourage and not encourage the state to produce or acquire, but other states (not possessing nuclear weapons) undertake not to produce, do not acquire nuclear weapons or other nuclear explosive devices.
Executionimplies the active activities of subjects for the implementation of the norms. The execution is characteristic of the rules providing specific obligations to make certain actions. In accordance with the Convention on the transboundary impact of industrial accidents, 1992, the parties take appropriate legislative, regulatory, administrative and financial measures to prevent accidents, ensuring their readiness for them and eliminate their consequences.
In the shape of usecertificate standards are implemented. Subjects independently decide on the use of the capabilities contained in the norms of international law. For example, the UN Convention on the Maritime Law enshrines the sovereign rights of the coastal state for exploration and the development of natural resources of the continental shelf, maintaining economic activities in the exclusive economic zone.
The implementation process includes two types of activities - legal and organizational provision of implementation and direct activities to achieve results. A.S. Gaverdovsky highlighted two interrelated stages in the implementation process: legal and organizational and legal and organizational-operational.
The implementation mechanism is the structure of the bodies to which the legal support for the implementation of these rules are imposed through implementation different species legal activities - the right-handed, control and law enforcement. Legal acts are becoming the result of such activities, the totality of which in theory is called the legal mechanism of implementation.
Allocate international and domestic implementation mechanisms.
2. International implementation mechanism
International Convention Securityimplementation includes right-to-proper rules, interpretation, international control, law enforcement.
Right-Supported rule-makingperforms in the form of concretization. For example, on environmental issues, the UN Framework Convention on Climate Change was adopted in 1992 (entered into force on March 1, 1994). In order to implement its provisions, the Government of the Russian Federation adopted a decree of 19.10.96 "On the Federal Target Program for the Prevention of Hazardous Climate Change and their Negative Consequences". The preamble states that the program is adopted "In order to fulfill obligations to implement the UN Framework Convention on Climate Change and the prevention of the negative consequences of climate change in the health of the population and the country's economy."
The provisions of the UN Framework Convention on climate change regarding the stabilization of greenhouse gas concentration specified in 1997 by the Kyoto Protocol to the Convention, which established quantitative obligations to limit or reduce greenhouse gas emissions, including the transfer and acquisition of emission reduction units, i.e. Custom-sale quotas for emissions to the atmosphere of greenhouse gases.
The high degree of generalization is characteristic of the principles of international law, for their effective implementation, they need specification. For example, Art. 2 UN Charter lists the principles that States should be guided in mutual relations. The content of these principles is disclosed in the Declaration on the principles of international law concerning friendly relations and cooperation between states in accordance with the UN Charter of 1970, in the final act of the CSCE 1975
In some cases, States may conclude additional (special) agreements in the performance of the main. An example is the Basel Convention on the control of transboundary transportation of waste and their removal of 1989. Subsequently, the state-of the CIS, "based on the provisions of the Convention", concluded an agreement on controlling the transboundary transportation of dangerous and other waste in 1996 on the basis of the Basel Convention, the Parties clarify Regulatory documents governing the procedure for transboundary transportation of hazardous and other waste between the States of the Commonwealth and through the territories of non-Parties of the Agreement, define the executive bodies responsible for controlling the importation and export of dangerous and other waste.
In December 1999, a protocol on liability and compensation for the Basel Convention on Control for Transboundary Waste Transportation and Removal Removal was adopted.
Additional contracts can be devoted to guarantees. An example of the guarantees can be a statement of three nuclear powers (USSR, USA and Great Britain), which they guaranteed to ensure the safety of non-nuclear member states on the non-proliferation of nuclear weapons and pledged to take immediate action in the event of nuclear aggression against any of these states.
In the process additional rule-making The rules for the implementation of control, specific measures to ensure the implementation or force of a compulsory nature, are to be created by organizations and bodies, to determine their powers in order to control or apply these measures. For example, in the Optional Protocol to the International Covenant on the Civil and Political Rights of 1966 of the State, "Taking into account that to further achieve the objectives of the Covenant on the Civil and Political Rights and the Implementation of its Resolutions," agreed to recognize the competence of the Committee on Human Rights to consider reports of persons who argue that they are victims of violation by the State party of any of the rights set out in the Covenant.
Interpretationit is a means of ensuring implementation and can be carried out in the process of both rule-making and law enforcement. Specification and interpretation are closely interrelated.
The European Convention on the Protection of Rights and Fundamentals prohibits torture, but Article 3 does not contain torture. The definition of these concepts was given by the European Court in the process of consideration. denmark, France, Norway, Sweden and the Netherlands against Greeceand then somewhat expanded in iRELAND V UNITED KINGDOM. In subsequent affairs, the court clarified what actions are covered by the concept of torture.
The main goal of M. international monitoringis the establishment of actual circumstances and their assessment in terms of compliance with the requirements of the norms of law, i.e. verification. It is carried out by comparing information about the activities of the state (or other subjects) or by comparing direct activities with the requirements of international law. The basis of any method of control is the collection and evaluation of information.
Collection of information is to obtain information about the implementation of international legal norms by all legal means: observation; Aerial photography (if it is permitted by the contract); use of artificial satellites of land, seismic equipment and other technical means; inspection; Exchange information, receipt of information from special reports, investigation. Evaluation of information is a comparison of activities with the requirements of the norms.
Allocate the following forms of international control:
1) control carried out by states individually or collectively;
2) control carried out by international organizations (IAEA, ILO, UNESCO);
3) control carried out by specially instituted international authorities (Committee for Human Rights, Committee against Torture, International Committee for Drug Control);
4) control carried out by special missions (a special commission established by the UN Security Council resolution on Iraq);
5) control carried out by special representatives of international organizations (UN Secretary-General);
6) control carried out by non-governmental international organizations (ICRC, GreenPeace).
Sometimes information enters the relevant control bodies in the form of complaints of individual states or individuals (Committee on Human Rights, the European Court of Human Rights).
States consider control as one of the main means of ensuring compliance with contracts. The results of the control activity, regardless of the control method, can always entail the responsibility of the states if there were violations of contractual obligations during the inspection. Practice is on the way to strengthen the role of control, it is proposed to create a general multinational control system under the auspices of the UN. This idea is supported by many states.
The result of the control activities are reports, messages, other tests of verification, having a legal value. On their basis by states, international bodies and organizations can be made appropriate decisions - law enforcement acts.
Enforcementit is an activity concerned by the adoption by states (individually or collectively) or the competent international body of a legally binding individual act based on international law (for example, the UN Security Council resolution, the decision of the UN Court of Justice, the decision of the European Court of Human Rights).
The result of law enforcement activities may be recommendations to states and other subjects of international law. For example, according to the results of consideration of the fourth periodic report of the Russian Federation on the implementation of the UN Convention on the prohibition of torture and other cruel, inhuman or degrading treatment and punishment, the Committee against UN Torture made recommendations against the Russian Federation. Among the priority recommendations, not only the requirement to make changes to the legislation on the prosecutor's office, but also to change law enforcement practice in individual spheres.
Law enforcement activities begins with identifying factual circumstances.
Analysis of contracts and international practice allows you to highlight the following channels for obtaining information about actual circumstances: a) the use of data of control activities; b) obtaining information from reports of states, in negotiations, in the process of work in international bodies and organizations; c) investigation; d) a judicial or arbitration.
In accordance with Art. 20 Conventions against Torture and other cruel, inhuman or degrading treatment species and punishment 1984. If the Committee against Torture deems appropriate to investigate, he appoints one or more of its members to conduct a confidential investigation and urgent submission to the Committee of the relevant report. The investigation may include, with the consent of the State party, a visit to its territory.
Investigations authority are assigned to the UN Security Council. According to Art. 34 UN Charter The Security Council is empowered to investigate any dispute or any situation that can lead to international frictions or cause a dispute to determine whether the continuation of this dispute may not threaten the maintenance of international peace and security.
Fully full information on facts can receive the UN International Court of Justice. The facts related to the case report the court of the dispute themselves. In accordance with Article 43 of the Statute of the UN International Court of Justice, the parties send a court and each other memorandums, counter-demonders, answers to them, all confirming documents. The court can hear witnesses and experts. The court has the right to contact States in order to obtain evidence in place, demand from representatives of the parties to present any document or explanation, that is, to take all measures to establish evidence. According to Art. 50 Statute The Court may entrust the production of investigation or expertise to any person, board, bureau, commission or other organization in their choice.
The completeness and objectivity of information about actual circumstances are of great importance for proper legal qualifications. Based on the norms of international law, the relevant authority gives a legal assessment of the actions of the state-writer and decides. The decision may be a collective (agreement) or individual (decision of the state, organization, judicial or other body).
The international organizational mechanism of implementation includes the activities of states, organizations or organs. They carry out their activities through negotiations, consultations, conferences, consideration of the issue in conciliation commissions, trial.
3. Domestic implementation mechanism
The implementation of international law in the field of domestic relations is the activities of the subjects of these relationships in accordance with the norms of international law .
The obligation of participants in domestic relations to be guided in their activities by international law is enshrined by domestic legal acts.
Our legislation contains a lot of prescriptions, according to which the competent authorities in their activities guided Not only by the Constitution, laws and other acts, but also by the generally recognized norms of international law and international treaties of the Russian Federation. Such, for example, paragraph 3. Provisions on immigration control, paragraph 3 of the provisions on the Federal Road Agency, paragraph 4 of the Regulations on the Federal Agency for Special Construction, paragraph 3 of the Regulation on the Ministry of Transport of the Russian Federation.
International obligations of states are implemented by government agencies, organizations and institutions. They are also taken to ensure the domestic implementation of international legal norms.
For example, the Federal Law "On Protection of Competition" provides that the antimonopoly authority cooperates with international organizations, state bodies of foreign states, participates in the development and implementation of international treaties of the Russian Federation, in the work of intergovernmental or interdepartmental commissions coordinating international cooperation of the Russian Federation in Implementation of international programs and projects on competition protection issues.
A combination of domestic legal acts that ensure the compliance of the activities of subjects of domestic relations with the requirements of international law, is domestic regulatory mechanism of implementation.
Legal acts that ensure the implementation of international law in the state may be different.
IN acts general character the fundamental rules relating to the implementation of international law are enshrined, the place of international law is determined in the domestic legal system. These are the positions of Part 4 of Art. 15 Constitution of the Russian Federation, part 1 Art. 5 of the Federal Law "On International Contracts of the Russian Federation", in accordance with which generally accepted principles and norms of international law and international treaties of the Russian Federation are recognized as an integral part of its legal system.
In the development of the provisions of the Constitution, many laws talk about direct use (action) of international norms. Article 10 of the Labor Code of the Russian Federation, Art. The 8 Customs Code of the Russian Federation reproduces the formulation of the Constitution of the Russian Federation. The Civil Code of the Russian Federation in Article 7 enshrines the principle of direct application of international legal norms for civil legal relations, except when from an international treaty it follows that it requires the publication of a domestic act. About the immediate action of generally accepted principles and norms of international law and international treaties, paragraph 3 of Art. 5 of the Federal Law "On International Treaties of the Russian Federation", paragraph 2 of Art. 4 Budget Code of the Russian Federation.
Most acts provide for the traditional formula if other rules are established by the International Agreement, the rules of the International Treaty are applied (Article 1 of the Code of Criminal Procedure, Article 1.1 of the Administrative Code, Art. 4 of the RF RF, Art. 6 of the RF IC).
A number of acts contain the duties of state bodies to take measures to fulfill the norms of international law or monitor the execution of international obligations (Part 3 of Art. 21 of the Federal Constitutional Law "On the Government of the Russian Federation").
For the implementation of some international treaties, a long-term preparatory work is needed to create a legal imaturity database of the fulfillment of the obligations that will arise from the state after the entry into force of the contract.
Legal acts to ensure implementation Specific TreatyTee is accepted both before and after the entry into force of the contract
In the process of preparing for the entry into force of the Convention on the Prohibition of the Development, Production, Accumulation and Application of Chemical Weapons and its destruction of 1993, the Federal Target Program "Destruction of Chemical Weapons In the Russian Federation" was adopted (1996), federal law "On the destruction of chemical weapons" (1997). The Convention was ratified on November 5, 1997. After the Convention entry into force, the Government of the Russian Federation for its implementation adopted a resolution of May 10, 2001 "On the financing of activities related to international inspection activities to verify the implementation of the Convention on the Prohibition of the Development, Production, Accumulation and Applications of Chemical Weapons and his destruction. "
National legislation may be the competent authorities are defined The international treaty, the powers of these bodies are specified, identified the necessary measures to implement international norms, as well as responsibility for non-compliance with the measures provided.
The legal agreement, control over the implementation of the norms of international law in the field of domestic relations, as well as the application of relevant measures for violation of the norms is carried out by legislative, executive, judicial authorities.
Under domestic organizational and legal (institutional) mechanismit is understood as the system of bodies carrying out legal and organizational activities in order to ensure the implementation of international law.
4. Legal basis for the judicial application of the norms of international law.
Legal basis Judicial use of generally accepted principles and norms of international law and international treaties of the Russian Federation is h. 4 art. 15 of the Constitution of the Russian Federation. In the Russian Federation on the basis of the Constitution there was a set of legal acts that focus the courts on the direct application of international law.
Some national acts are designed to meet international treaties. The Criminal Code of the Russian Federation "is based on the Constitution of the Russian Federation and the generally accepted principles and norms of international law" (Article 1), the criminal executive legislation takes into account the international treaties of the Russian Federation relating to the execution of sentences and condemnation with convicts, in accordance with the economic and social capabilities (Art. 3), the rules for the provision of telegraph communications services are developed in accordance with the National Laws and the Convention of the 1992 Telecommunication Union, (clause 1).
Legal acts orient courts for justice through the application of both the norms of the Constitution of the Russian Federation and federal laws and international treaties, principles and norms. This implies, in particular, from the requirements of the Federal Constitutional Law "On the Judicial System of the Russian Federation", the Federal Constitutional Law "On Arbitration Courts of the Russian Federation", the Arbitration Procedure Code of the Russian Federation, the Federal Law "On Enforcement Procedure", the Law of the Russian Federation "On the International Commercial Arbitration Court. "
In a number of laws in the article on the legal basis of activities The state authority, along with the Constitution and other Russian legal acts, is international treaties. Article 13 of the APC RF, among the regulatory legal acts used in resolving disputes, calls national laws, other legal acts and international treaties.
Legislation on arbitration courts contains clear indications regarding the immediate application of international law when considering specific cases. In accordance with paragraph 3 of Art. 3 APC RF if the international treaty of the Russian Federation has established other rules of legal proceedings than those provided for by the legislation of the Russian Federation on proceedings in arbitration courts, the rules of the International Treaty apply.
Federal Law "On Enforcement Proceedings in Art. 2 indicates the application of international treaties in conflict cases.
A number of legislation contains provisions in accordance with which procedure of activitystate authorities remained by Russian legislation and international treaties.
So, the procedure for trips in the Russian Federation with foreign courts, as well as the execution of orders determined international treaties of the Russian Federation by federal law (Art. 407 Code of Civil Procedure of the Russian Federation). Arbitration courts can in the manner established by the International Treaty RF or federal law apply to foreign courts or competent authorities of foreign countries with instructions on the implementation of individual procedural actions (Art. 256 of the APC RF).
Solutions to the courts of foreign countries adopted by them on disputes and other cases arising from the implementation of entrepreneurial and other economic activity (Foreign courts), the decisions of arbitration courts and international commercial arbitrations, adopted by them in the territories of foreign countries on disputes and other cases arising from the implementation of entrepreneurial and other economic activities (foreign arbitration decisions), are recognized and are executed in the Russian Federation by arbitration courts, If recognition and enforcement of such solutions provided by the International Treaty of the Russian Federation and federal law (Art. 241 APC RF).
Russian sectoral legislation also contains norms providing for the direct application of international law in the activities of courts. The legislation clearly defined the Regulation on joint agreed application Norms of international and domestic law.
In addition to the rules that are focused on comprehensive legal regulation, there are norms that are allowed independent application Norms of the International Treaty. The possibility of self-use of international legal norms is provided by the Arbitration Courts of the Customs Code of the Russian Federation, the Air Code of the Russian Federation, the Code of Trade Marines of the Russian Federation, the Federal Law "On Railway Transport in the Russian Federation".
Special attention deserves acts that take into account various forms The immediate action of the norms of international law in the domestic sphere. It is natural that in these acts references to international treaties are much more common.
The Federal Law "On Insolvency (Bankruptcy)" is of interest. He not only indicates a priority (paragraph 4., paragraph 5 of article 1) and direct (clause 6, Article 1) applying international norms, but also enshrines the principle of reciprocity in the absence of an international treaty (part 2 of paragraph 6 Art. 1). The provisions of the same nature are also contained in other acts.
Many legislative acts focus on law enforcement bodies on the application of international law norms only in conflict cases. Most legislative acts contain a rule about priority application norms of international treaties. Such references are contained in the Family Code of the Russian Federation (Article 6), in federal laws "On product sharing agreements" (Article 24), "On Protection of Competition" (Part 3 of Art. 2), "On concession agreements (h. 2 Art. 2).
References to international treaties can be expressed various formulas:"In accordance with international treaties", "on the basis of international treaties", "by virtue of international treaties", "in cases provided for by international treaties", "in the manner defined by international treaties".
Despite the fact that national legislative acts mostly contain a traditional formula on the priority application of international law in collisional cases, it can be stated that in Russia the legal frameworks are laid for the application of international treaties in combination with national legislation. Russian legislation enshrines that the authorities, including judicial, in their activities are associated both internal and international law.
The courts in their activities are guided not only by domestic legal acts, but also bilateral and multilateral international treaties.
The Warsaw Convention for the Unification of some rules relating to international air transport, 1929 establishes in court what country disputes about responsibility arising from air transportation. According to Art. 28 of the Convention The claim for damages must be initiated by the choice of the plaintiff within the territory of one of the high Contracting Parties or in the court of the state in which the carrier is located, the main management of its enterprise or the office, which issued a contract for transportation, or in the court of state, which is the destination of transportation.
In its recommendations, the Supreme Arbitration Court of the Russian Federation gave an explanation that the arbitration courts apply the norms of the Warsaw Convention to unify certain rules relating to international air transport, taking into account changes made to this Convention protocols World Organization civil aviation (Montreal, 1975).
In accordance with Art. 1 Convention on the permitting arbitration through civilian legal disputes arising from the relations of economic and scientific and technical cooperation, 1972 all disputes between economic organizations arising from contractual and other civil relations arising between them in the process of economic and scientific and technical cooperation The countries participating in the Convention are subject to consideration in an arbitration except for such disputes to state courts.
Article 187 of the UN Convention on the Maritime Law of 1982 refers to the competence of the camera on disputes relating to the seabed, disputes between participating States, a body or enterprise, state enterprises and individuals or legal entities (paragraph "C").
According to Art. 42 Washington Convention on the procedure for resolving investment disputes between states and foreign persons of 1955, "Arbitration considers the dispute according to the norms of law, in accordance with the Agreement of the Parties. In the absence of the consent of the parties, arbitration applies the right of a Contracting State speaking as a part in dispute, as well as the norms of international law that should be applied.
Interests on the promotion and mutual protection of investments establish a rule, according to which the Arbitration Court decides on the basis of agreements concluded between the Contracting Parties, as well as the generally accepted principles and norms of international law (5 Article 9 of the Agreement between the Government of the Russian Federation and the Government of the Kingdom of Denmark on the promotion and mutual Protection of investments; paragraph "B" of Article 10 of the Agreement between the Russian Federation and the State of Kuwait on the promotion and mutual protection of investment)
Among the sources of legal regulation of applications by the courts of international legal norms should be noted the special importance of the recommendations of federal courts.
5. Application of international legal norms in law enforcement and judicial bodies.
Today it can be stated that the application of international law is no longer the prerogative of a limited range of state authorities. Recently, the courts are increasingly engaged in the process of implementing international norms.
The judiciary, allowing civilian, criminal, labor, administrative cases, in the necessary cases apply the norms of international law. The mandatory nature of international legal acts on human rights is confirmed by its current legislation.
In the decision of 31.10.95, "On some issues of approval by the courts of the Constitution of the Russian Federation in the implementation of justice," the Plenum of the Supreme Court of the Russian Federation explained that the courts in the implementation of justice should come from the fact that generally accepted principles and norms of international law enshrined in international pacts, conventions and other documents (in particular, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights), and international treaties of the Russian Federation are in accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation an integral part of its legal system (clause 5).
Considering this, the court when considering the case is not entitled to apply the norms of the law regulating the legal relationship, if the international treaty that has entered into force for the Russian Federation, the decision on the obligation of which for the Russian Federation was adopted in the form of federal law, other rules were established than those provided by law . In these cases, the rules of the International Treaty of the Russian Federation are applied.
The Plenum of the Supreme Court of the Russian Federation in this resolution drew the attention of the courts that, by virtue of paragraph 3 of Art. 5 of the Federal Law of the Russian Federation "On International Contracts of the Russian Federation" The provisions of officially published international treaties of the Russian Federation, which do not require the publication of domestic acts for use, operate in the Russian Federation directly. In other cases, along with the International Treaty of the Russian Federation, an appropriate domestic legal act should also be applied to implement the provisions of the specified international treaty.
In paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 10.10.03, "On the application by the courts of general jurisdiction of generally accepted principles and norms of international law and international treaties of the Russian Federation," it is said that "an international treaty is subject to use if the Russian Federation in the person of the competent authorities expressed consent to the obligation For her, an international treaty through one of the actions listed in Art. 6 of the Federal Law "On International Treaties of the Russian Federation" (by signing the contract; exchange of documents, formed; ratifying the contract; contract approval; adoption of the contract; accession to the Agreement; in any other way of which the Contracting Parties agreed).
Practical importance for judges has the moment entry into force of the International Treaty. The international treaty comes into force in the manner and at the date provided for in the contract itself.
According to Art. The 24th of the Vienna Convention on the Right of International Contracts of 1969. In the absence of such a situation or agreement, the Agreement shall enter into force, as soon as the consent to all States participating in the negotiations on the obligation of the contract will be expressed. For example, Russia's obligations arising from the European Convention on the Protection of Human Rights and Fundamental Freedoms May 5, 1998 - on the day of the transfer of ratification diplomas to the Secretary-General of the Council of Europe.
In addition, the state, at the time of signing or ratifying the International Treaty, has the right to make reservations to his text.
In accordance with the Vienna Convention on the Law of International Treaties of 1969, under the "reservation" means a one-sided statement made by the state or an international organization in the process of entering into an agreement, aimed at changing or eliminating certain provisions regarding the relevant state and / or international organization. The main purpose of the reservation is to exclude / change the legal effect of certain provisions of the contract in their application to this state.
For example, according to Art. 57 of the European Convention on the Protection of Rights and Fundamental Freedoms of Man "Any State when signing this Convention or with the instrument of ratification may make a reservation to any specific provision of the Convention regarding the fact that one or another law acting at this time on its territory does not correspond to This Regulation. This article does not provide for a general reservation.
Any reservation made in accordance with the provisions of this article must meet the following requirements:
The reservation should not wear a general nature
Prothelzhna contain a summary of the relevant law "
The law referred to the state in the reservation must act on the territory of the State party during the ratification of the Convention.
The properly made a reservation provides the state to avoid responsibility if the internal legislation provides for the rules that do not meet the provisions of the Convention. However, non-compliance with the state of one of the requirements, gives the basis of the European Court to recognize the reservation by invalid.
The European Court has repeatedly stressed that in the formulation of the reservation, the state should not use indefinite terms, as well as the terms that can be widespread enough, because Art. 57 of the Convention requires clarity and clarity regarding the formulation of reservations. If the reservation is general (formulated by uncertain, ambiguous concepts), such a reservation should be recognized as an invalid court. The legal consequence of such a reservation will be the impossibility of the state to refer to the reservation in this part for the argument of its position in the case.
An essential point is to include a summary of the law. In the decision in the case Weber against Switzerland The court stressed that "the need to have a brief content of the law contrary to the convention provisions is a guarantee for the rest states parties The Convention and Convention Bodies that the reservation will not be widely interpreted by the relevant state ... ".
The reservation in which there is no brief statement of the content of the relevant law, the European Court recognizes invalid.
The subject of reservations may be exclusively laws operating in the state of the state at the time of adoption of the reservation. In the decision in the case Slivenko and others against LatviaThe court indicated that "the ratification of the Convention by the State suggests that any law acting at that time on its territory must comply with the Convention. If this did not happen, the state is entitled to make a reservation, ... However, the reservations of a general nature are not allowed, especially those who do not specify the relevant situation of national legislation or do not indicate the articles of the Convention, which may be violated by the use of these provisions ... " .
The court found that Latvia did not make a special reservation with respect to the Russian-Latvian Treaty (agreement between the Russian Federation and the Republic of Latvia on the conditions, timing and procedure of a full conclusion from the territory of the Latvian Republic of the Armed Forces of the Russian Federation and their legal position for the period of conclusion of 04.04.1994. ) or general provisions Latvian legislation on immigration and citizenship. The court concluded that he was authorized to consider all the issues that may arise in the light of the Convention and the Protocols to it as a consequence of the application of the provisions of the Treaty regarding the circumstances of the applicant's case. "
A court with special care analyzes the question of the applicability of the reservation, including the requirements of the European Convention. Russia, in ratifying the Convention, made a reservation, according to which the provisions of PP.3 and 4 Article 5 of the Convention do not impede the application of the Code of Criminal Procedure of the RSFSR 1960, regulating the order of arrest, detention and detention of persons suspected of committing a crime . This reservation has responded to the requirements. However, the European Court in calashniki case against Russianoting that "the reservation concerns the procedure for applying a preventive measure in the form of detention, while the applicant's complaint refers to the duration of detention as such, and does not dispute his legality," it has established that this reservation is not applicable in this case.
Part 3 of Article 5 of the Federal Law "On International Treaties of the Russian Federation" said that the provisions of officially published international treaties not requiring the use of publications of domestic acts in the Russian Federation directly. Will it publishingimportant condition for application courts of an international treaty?
Article 30 of the Federal Law "On International Treaties of the Russian Federation" establishes that international treaties that have entered into force are subject to official publication. In the global and Russian contractual practice, the temporary application of the International Treaty has been widely disseminated. Art. 23 of the Law and Art. The 25th Vienna Convention on the Right of International Contracts of 1969 provides that an international treaty (or part of it) can temporarily be applied, whose entry into force requires the implementation of certain domestic procedures (ratification, approval, etc.). And before the courts, it is not eliminated by the possibility of resolving the issue whether a temporarily applied treaty establishing other rules to have a priority to domestic legislation? In our opinion, there is no legislative obstacles to a positive solution. It seems categorical conclusion that not entered into force, not published contracts "are not included in the legal system of Russia" (Talalaev A.N.).
There is no unity of opinion in theory and about what is considered official publication. The legislation of a unambiguous answer also does not offer. According to Art. 30 FZ "On International Treaties of the Russian Federation", international treaties are subject to official publication in the meeting of the legislation, the Bulletin of International Contracts. The international treaties of the Russian Federation, concluded on behalf of the federal executive bodies (international interdepartmental agreements), are published in official publications of these bodies.
In accordance with the Decree of the President of the Russian Federation "On the procedure for publishing international treaties of the Russian Federation", international treaties that have entered into force for the Russian Federation (except for interdepartmental agreements) are subject to official publication in the necessary cases also in the Russian Newspaper newspaper; They may be brought to the general information of other media and publishers.
Judicial practice also does not differ in unity on this issue.
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Section 5. Peaceful Resolution of International Disputes
1. The concept of an international dispute
In the process of the implementation of cooperation of the subjects of international law, in the fulfillment of their obligations undertaken, controversial situations (disputes, conflicts) may occur. An unequivocal distinction of categories "Situation", "Spore", "Conflict" in the theory, nor in international acts. Depending on the level of increasing the tension of international relations T.V. Khudoyukina offers to accommodate them as follows: International Situation - International Spore - International Conflict - International Armed Conflict. First, - indicates T.V. Hadoyukina, - a situation (a set of circumstances, position, situation) is created, then a dispute may arise (verbal competition, disagreement), which may turn into a conflict. From what has said it follows that the conflict may not arise, which determines the emergence of some situation leading to a dispute. Probably therefore quite often in scientific literature And legal acts can be found by the phrase "controversial situation". The UN Charter also uses the terms "dispute" and "situation", while not determining their content. In international acts adopted before the establishment of the UN and the entry into force of the UN Charter, it is generally consumed by another term - "international collisions".
In the scientific literature, the international dispute is defined as a formally recognized disagreement between the subjects of international law, which arises on the issue of fact or law. International conflict is a collision that emerged on the basis of disagreement, that is, the dispute. Therefore, determining the state of international relations is the "dispute". Moreover, in the fundamental principle of peaceful resolution of international disputes is the concept of "dispute".
The beginning of the formation of the principle of peaceful resolution of international disputes in the modern sense was made in the late 19th - early 20 V.V. One of the first international acts currently operating to the present time was the Convention on the Peaceful Resolution of the International Collision of 1907. By signing the Convention, States agreed to warn, if possible, appeal to strength and make all their efforts to ensure a peaceful decision of international disaglements. In the convention, the corresponding peaceful agents were named and the procedure for their application was formulated.
The principle of peaceful resolution of disputes in modern sound is enshrined in chapter 6 of the UN Charter. In accordance with Art. 33 UN Charter Parties involved in the dispute, which can threaten the maintenance of international peace and security, should try to resolve it with the help of the funds specified in the article. Further, this principle was proclaimed in the Declaration on the principles of international law relating to friendly relations and cooperation between the 1970 states. A significant contribution to the filling of this principle to a deeper content was made by a Security and Cooperation Meeting in Europe in 1975, in the final act of which it was formulated that states would resolve disputes by peaceful means so as not to endanger international peace and security and justice. In principles of resolving disputes and provisions of the CSCE procedure for the peaceful settlement of the 1991 dispute resolution, it is emphasized that international disputes should be resolved on the basis of sovereign equality of states and, taking into account the principle of free choice of funds in accordance with international obligations and responsibilities and principles of justice and international law.
The principle of peaceful dispute resolution suggests that the states involved in the dispute are free in the choice of means of peaceful settlement, but this choice should be agreed between the arguing parties. Such consistency may occur before the emergence of a dispute. Usually, entering into a contract (both bilateral and multilateral), states formulate its agreement on the use of certain dispute resolution tools. For example, agreement on cooperation in the organization of the integrated currency market of the 2006 Eurasian Economic Community Member States, it is envisaged that controversial issues related to the interpretation and implementation of this Agreement are permitted by consulting and negotiations between the arguing parties. In case of failure to agree between them, the dispute is transferred to the community.
The list of peaceful dispute resolution is indicated in the same international acts, where the principle of peaceful dispute resolution itself is enshrined. The convention on the peaceful resolution of international collisions of 1907 calls good services and mediation, international investigative commissions, an international arbitration court. In accordance with Art. 33 UN Charter can be used negotiations, examination, mediation, reconciliation, arbitration, trial, treatment of regional authorities or other peaceful agents, that is, according to the UN Charter, their list compared to the 1907 Convention is much wider and it is not exhaustive. In the same way, peaceful funds are also indicated in the Declaration of the Principles of International Law of 1970 in the final act of the CSCE 1975
2. International negotiations and advice
Of the entire spectrum of international practices developed and enshrined in international acts of resolution of state disputes, most often and primarily resort to negotiations. In essence, negotiations are the first step to reconcile the arguing sides. But in modern international law there are no negotiation rules.
In essence, international treaties are aimed at developing and making joint solutions to the arguing parties. Before negotiations, it is necessary to carry out appropriate preparatory work: to achieve agreement on the need to negotiate, determine the place and time of negotiations, to determine the composition of the negotiation participants, identify the goals and objectives of the negotiations, develop proposals with the formulation of their argumentation, prepare the necessary documentation, solve other issues. Negotiations themselves are quite a long process. They suggest direct contact of stakeholders. Negotiations can be translated in the form of direct meetings or using telecommunication means, accompanied by the exchange of notes, letters, etc. As a result of discussion and coordination of positions during the negotiations, a final document is accepted. Typically, this is an international treaty.
If international negotiations as a means of international communication are known from antiquity and as a means of resolving controversial situations, they have a rich experience, it cannot be said about consultations, which means of resolving disputes began to be applied in the 20th century. Consultations can be viewed in two aspects. They can be a preparatory stage before the direct negotiations. For example, the negotiations on the territorial dispute at the level of the heads of state or heads of governments are consulted by various specialists (historians, lawyers, topographers, etc.). But consultations take place and as an independent type of means of peaceful dispute resolution. Consultations are divided into optional and mandatory. Optional consultations are held on a specific issue in the presence of mutual consent of the parties. Mandatory consultations are provided for the conclusion of international treaties in case of disputes. For example, by agreement between the Government of the Russian Federation and the Government of the French Republic on cooperation in the destruction of chemical weapons in the Russian Federation of February 14, 2006, it is envisaged that all disputes regarding the fulfillment or interpretation of this agreement are regulated by consulting between the parties. Such consultations are held no later than two months after receiving the request from one of the parties.
If negotiations and advice do not give the desired result or they are impossible for any reason, the parties can resort to other means of resolving the dispute.
3. International Investigation and Conciliation Commission
The competence and procedure for creating investigative commissions are formulated in the Convention on the Peaceful Resolution of International Collides of 1907. The formation of such commissions is provided for in international disputes arising from disagreement in assessing the actual circumstances of the case. The Commission finds out the facts of the fact, conducting an impartial and conscientious investigation. The Commission is formed on the basis of a special agreement between the arguing parties, in which the facts that are subject to investigative are defined, the procedure and term of formation of the commission, the amount of its powers, the place of its stay, the language to which the Commission will use, the term of submission by the Commission of the results of its work, other conditions, About which the arguing parties agreed. Fact establishment is determined by the Commission, if this is not provided for by the Agreement of the Parties. The parties are required to submit the Commission all means and methods necessary for full clarification and accurate assessment of controversial facts. During the work of the Commission, there may be interrogations of witnesses and experts, a variety of evidence is investigated. Commission meetings occur with the doors closed and remain secret. The decision is made by a majority vote. The results of the work of the Commission can be made public only with the consent of the parties to the dispute. At the end of the work, the Commission is a report, it is signed by all members of the Commission. If someone from the Commission members do not sign, the mark is made about this, but the report remains in force. The conclusions of the commission set out in the report are not mandatory for the parties. The participants of the dispute may appoint to the commission of their special agents serving intermediaries between them and the Commission.
As an international conciliation commission, the permanent chamber of the Arbitration Court is currently acting.
Along with the investigative commissions, as a means of peaceful resolution of disputes, conciliation (conciliation) commissions are opposed. Such commissions are not limited to clarifying the facts, and develop specific recommendations on the settlement of the dispute, although they are not mandatory for the arguing parties. The activities of the conciliation commissions are settled to a lesser extent than investigative commissions. From international acts, where the procedure for the formation and activities of reconciliation commissions are regulated by the Vienna Convention on the Office of States in their relations with international universal organizations in 1975.
In accordance with Art. 85 of this Convention, if the dispute was not allowed by consulting within one month from the moment of their start, then any state participating in consultations can convey the dispute to the conciliation commission. About this relevant organization and other states participating in consultations are sent a written notice. States participants appoint their representatives who will act as members of the conciliation commission of the relevant international organization. Each universal organization leads a list of persons appointed by States. The Commission establishes its own rules of procedure, decisions are made by a majority vote. If the Commission is not able to reach an agreement between the parties to the dispute within two months, it prepares a report on its work and directs it to the parties to the dispute. The report must contain the conclusion of the Commission on the facts and issues of law, as well as the recommendations that it made the parties to the dispute in order to comply with its permission. The recommendations of the mandatory force for the parties are not worn.
The conciliation procedure in the settlement of international disputes is close attention is paid within the UN, where a standard conciliation regulation was developed to resolve disputes between states. This regulation applies to the agreed settlement of disputes between the states, when they actually agreed directly on its application. To resolve the dispute, in accordance with the Regulations, a commission is formed, which, acting independently and impartially, makes efforts to ensure that the parties come to the friendly settlement of the dispute. The Commission develops and presents the parties to the recommendation to resolve the dispute. The Commission defines its own procedure. If the parties agree with them, a document containing the settlement conditions are drawn up. If the parties do not accept the recommendations, but desire to launch settlement attempts on other fundamentals, the procedure is resumed. If the parties do not accept the recommendations and do not want to resume attempts, the document is drawn up on this and the procedure is considered completed.
The use of the conciliation procedure in resolving disputes is provided for by the Convention on Reconciliation and Arbitration In the CSE 1992, reconciliation is carried out by the Prison Commission created for each dispute. For the formation of this commission, each state appoints two world mediators, of which at least one is a citizen of this state, the other may be a citizen of another state - a member of the CSCE. World mediators should be persons who occupy or occupied high state or international posts and have recognized competence in the field of international law, international relations or settlement disputes. They are appointed for a period of 6 years, with the possibility of appointment for a new term. Any State - a member of the Convention may transfer any dispute with another State party to the conciliation commission, if it was not resolved within a reasonable time through negotiations. According to the dispute arising, the secretary is submitted a statement with a request to establish a conciliation commission. But such a request can also be presented by agreement of the arguing parties. The composition of the conciliation commission is determined by the parties from the list of world intermediaries. The conciliation proceedings are confidential. The Prison Commission assists the parties in search of the settlement of it. If the parties come to a mutually acceptable settlement, then summaries of the findings subscribed by representatives of the parties and members of the Commission are drawn up. If the Prison Commission considers that all aspects of the dispute and all the possibilities of finding a solution are studied, it constitutes a final report in which the proposals of the Commission on the Resolution of the Dispute. The report is brought to the attention of the parties, which in 13 days study it and report whether they are ready to agree with the proposed regulation. If the parties did not agree with the proposals of the Commission, the report is sent to the CSCE Council. The parties of the dispute pay their own expenses, as well as the costs of the assigned intermediary. The remaining costs are distributed between the parties to equally.
As a type of conciliation commissions, the Commission of Border Representatives, established in the event of a border dispute. For example, in agreement between the Government of the Russian Federation and the Government of the Republic of Azerbaijan on the activities of border representatives of January 25, 2002, it is envisaged that in order to resolve border incidents, as well as other violations of the state border regime, border representatives are jointly conducted (investigations). According to the results of joint proceedings, an act or other documents are drawn up. Border incidents not resolved by border representatives are permitted by diplomatic means.
In art. 33 UN Charter as a means of peaceful resolution of disputes conciliation and conciliatory commissions are not specified. This article indicates a survey and reconciliation. It seems that the implementation of the examination and reconciliation procedure is nothing more than the activities of the considered commissions.
4. Good services and mediation
The UN Charter among peaceful dispute resolution calls mediation. The detailed use of this fund is settled by the Convention on the Peaceful Resolution of International Collisions of 1907. It also speaks of good services.
Good services include the participation of third parties in the organization and negotiation between the arguing parties. The initiative to use good services can come from both from one of the arguing sides and from a third party. The states are usually acting as third parties, but does not exclude participation as such other subjects. The role of the third party is to create a favorable environment for negotiating the arguing parties. Sometimes it looks like the territory on which negotiations will be held.
Mediation also involves participation in resolving a third-party dispute, but this Party, in contrast to good services, is actively involved in the resolution of the dispute, affecting the negotiation process and their results. The task of the mediator in accordance with Art. The 4 conventions of 1907 lies in the coordination of opposing claims and in calm the feeling of hostility, if it arose between the arguing parties. The third party can appeal to the third party as an intermediary, but the third party itself can also show the initiative.
Good services and mediation are not compulsory and have an exclusively meaning of the Council. For a term of good services and mediation may not exceed 30 days.
Recently, in practice, the permission of international disputes, along with the term "mediation", the term "mediation" is found. In essence, mediation represents mediation in the international dispute of the third, not participating in the dispute, called the mediator.
5. Resolution of disputes in the International Arbitration Court
If, as a result of negotiations and mediation, the international dispute could not be resolved, the parties are entitled to contact the arbitration procedure, to the International Arbitration Court.
Arbitration as a means of resolution resolution is indicated in Art. 33 UN Charter. The detailed procedure of the arbitration is provided for by the Convention on the Peaceful Resolution of International Collides of 1907. Appeal to the Arbitration Court entails the obligation to conscientiously submit to the arbitration decision.
In 1899, the permanent chamber of the Arbitration Court was established (Location - Hague). The activities of the Chamber are carried out in accordance with the rules of the Convention on the Peaceful Resolution of International Collisions of 1907. Each State - the participant of the Convention appoints no more than four people to the Chamber, which showed deep knowledge In the field of international law, objectivity and principle of consideration of cases in courts using the authority and personal respect, which agreed to accept the obligations of the arbitrator (arbitration judge). The term of stay in the Chamber as an arbitrator is 6 years, but the authority can be resumed for a repeated time. Arbitrators outside their country enjoy diplomatic privileges and immunities.
To appeal to the Arbitration Court to resolve the dispute between the arbitration parties, an arbitration court agreement should be concluded. Such an agreement may take place on an already arising disorder, as well as on disputes that may arise in the future. The agreement may relate to any dispute or only separate. The composition of the arbitrators is formed by agreement of the parties from general list. When contacting the Arbitration Court, court costs consisted of duties and expenses are reimbursed: the remuneration of arbitrators; expenses related to examination; Expenditures associated with calling witnesses, departure to inspect evidence in place.
Within the framework of the Permanent Chamber of the Arbitration Court, the state can also be disputes in which the state is continuing to the Convention 1907. The consideration of disputes is carried out in accordance with the Optional Rules for the consideration of arbitration disputes between the two states in 1992, the rules for the consideration of arbitration disputes between the two participants, Of which one is the state, 1993, the rules for consideration of disputes between states and international organizations in 1996
Appeal to the international arbitration procedure is also provided for by the Convention on Reconciliation and Arbitration within the CSCE of 1992, the arbitration is carried out by the Arbitration Tribunal, created for each dispute. The arbitral tribunal includes arbitrators selected from the arbitratron list. This list is formed by appointing each state of one arbitrator and deputy, for a period of 6 years. Location - Geneva. Consideration of cases is based on the rules. The request for arbitration can be presented at any time by agreement between two or several states. If the States, when signing the 1992 Convention, stated that they were recognized as a special agreement with the jurisdiction of the Arbitration Tribunal, subject to reciprocity, the request for arbitration can be provided in the form of an application for the name of the secretary. In relation to the parties, the Arbitration Tribunal has the authority to establish the facts and investigations. The arbitral decision is final and no appeal. The revision of the decision may take place only on the basis of newly discovered circumstances.
6. Competence of the UN International Court of Justice to resolve international disputes.
With the unresolvedness of international disputes in an extrajudicial procedure, the parties are entitled to apply to international judicial authorities, including the UN International Court of Justice, acting on the basis of the Statute.
The UN International Court consists of 15 members elected by the General Assembly and the Security Council. As judges, persons with high moral qualities are elected, satisfying the requirements imposed in their countries for appointing top judicial positions, or being lawyers with recognized authority in the field of international law. Court members are elected for 9 years and can be re-elected. Court members fulfilling their judicial duties enjoy diplomatic privileges and immunities.
In order to resolve the dispute in the UN International Court of Justice, only the state can apply. But with a request to the Consultative Conclusion Consultation, international organizations may also be applied.
Dispose of the UN International Court includes written and oral parts. The written consists of a message to the court and parties to the memorandums, refereeners, other papers and documents. The oral part is hearing a trial of witnesses, lawyers, experts, representatives of the parties, etc. The hearing is occurring publicly, at the request of the parties can be closed.
The court may include cases transferred to him by the parties, and all the issues specifically provided for by the UN Charter or existing treaties and conventions. When signing international treaties, states may make a reservation on the non-recognition of the Jurisdiction of the UN International Court of Disputes related to the obligations under this particular contract. In this case, the court cannot accept a dispute for consideration. So, for example, the Soviet Union, when signing the Convention on the Elimination of All Forms of Discrimination against Women in 1979, a reservation was made on the non-recognition of the mandatory jurisdiction of the UN International Court of Justice. Later, this reservation was removed.
The court decision is mandatory for parties participating in the case and only in this case. The decision is finally not subject to appeal. The request for revision can only be declared on the basis of newly discovered circumstances, which in their nature can have a decisive effect on the outcome of the case and which, when deciding, was not known to be known, neither the court, asking for revision, but if only such ignorance was not a consequence negligence.
Containing MP standards:
a) Resolutions establishing mandatory rules for the authorities. These interddes The norms are part of the domestic right of this organization.
b) acts acquiring legal obligations by virtue of the norms of intercourse. contracts and (or) domestic legislation.
There are two types: intergovernmental and non-governmental international acts. Only intergovernmental acts are the source.
Intergovernmental acts. In the Charter of organizations, which are the source of MP (international treaty, for the organization create states), enshrines which bodies have the right to create legally binding standards. Organizations about 2.5 thousand and many organizations make legally binding documents.
Organizations publish two types of documents:
1) Internal law of organizations. The charter is not rubber, everything will not write in it. In it, you can write only which organs there are and how they interact. And how they work - this is in separate acts that the organization itself is and published. Let's say the European Court of Human Rights wrote and accepted the rules for himself by which it allows.
2) the external right of organizations. The external right is designed to be applied by States parties by their individuals and legal entities.
Airplanes fly according to ICAO rules (international organization), ships according to the rules of Incoterms Nuclear power plants according to the Rules of AKOTE. There is advice by railway transport - He approves the rules on international rail transportation. There is an international organization for containers, which container is needed for what that for them (specialized, large-room ...) need. There is a whole bunch of documents of international organizations. The same visa code is the act of the European Union. Or TC TC. The TC TC is an international treaty contained in the document of the International Organization (EurAsEC Intergossors).
Many international organizations publish documents that are legally higher (they are stronger than) national legislation of States parties.
Legal system of the Russian Federation in the light of Part 4 of Art. 15 of the Constitution of the Russian Federation.
In domestic legal science, the problems of the legal system was actively developed from the mid-70s. XX C.: At the same time, research was conducted and carried out mainly in the framework of the general theory of law. The term "Legal System" itself is used in domestic science In several values. Depending on the context, it may mean:
1) the system of law from the point of view of its organizational structure (a set of principles of law, industries, sub-sectors, legal institutions, etc.);
2) a set of legal norms of any state (national legal system or family of legal systems) or MP;
3) the socio-legal phenomenon formed by various elements, among which they call: legal norms; the result of their implementation (legal relationship); legal institutions; OUTDENCE, etc. On the issue of the content of the legal system understood, several main approaches have developed.
Constitutional position (Part 4 of Art. 15), according to representatives of industry sciences, allows you to consider "international norms as national". Moreover, generally accepted principles and norms of international law and international agreements of Russia are recognized as sources of industry law (constitutional, civil, procedural, etc.). This cannot be agreed. First, the Constitution announces international treaties not part of Russian law, but part of the Russian "legal system". Secondly, international norms in principle cannot be part of Russian law. MP and the right of domestic represents are various systems of law. MP and national law differ from each other in a circle of subjects, sources, method of education and ensigning MP and other characteristics. Thirdly, the shape of the right of one system of law cannot be simultaneously forms of the rights of another system (G. V. Ignatenko).
In MP, there is no generally accepted definition of the "legal system of the state", and this concept itself began to meet in the documents on only the most recently the European Convention on Citizenship (Strasbourg, November 6, 1997) (Art. 2), but it also gives a simple The list of elements included in the legal system is the Constitution, laws, decisions, decrees, case law, ordinary norms and practices, as well as norms arising from mandatory international documents.
Much more attention is paid to the problems of the Russian legal system in the science of MP. General for scientists is the inclusion in the legal system of the Russian Federation on a particular basis of MP standards.
You can express the following:
1. In federal regulations, the maintenance of the term "legal system" is not disclosed; They are only repeated (with some variations) constitutional norm. The acts of federal law proceed from the fact that the legal system of the Russian Federation it is necessary to include the norms of not only national, but also international law, but its other elements are not called.
2. In regional legislation, a new concept is introduced into circulation - the "legal system of the subject subject", in the definition of which several approaches are allocated:
a) the legal system of the subject of the Russian Federation includes federal legal acts, regional legislation and agreements, as well as international treaties of the Russian Federation (Charters Sverdlovsk region and Stavropol Territory);
b) only acts of its authorities and acts of local governments in the territory of the region (Charter of the Irkutsk Region) are included in the legal system of the Directory of the Russian Federation.
c) In some regions, the concept of "legal system of the subject subject" is used without disclosing its content, but it is specified that international norms (the Charter of the Voronezh Region, the Law of the Tyumen Region "on the International Agreements of the Tyumen Region and the Tyumen Region agreements with the subjects of the Russian Federation " and etc.).
Thus, in the regional legislation, the "Legal System of the Subject" is considered as part of the Russian legal system and is understood as a set of legal norms in this territory.
3. With regard to inclusion in the legal system of legal consciousness, legal relations, law enforcement process, etc. The term "system" involves the union in a single phenomenon of single-order phenomena. In relation to the term "legal system", we must talk about the same type of components - the norms of objective law acting in a particular state.
Thus, it is more correct to understand the "Legal System of the Russian Federation" as a set of legal norms used in the Russian Federation. In this case, any doubts disappear in the exact interpretation of the constitutional norm.
The wording of Part 4 of Art. 15 constitutions should also be considered as a common sanction Russian state On the inclusion of MP standards into the system of rules operating in Russia, the direct use of MP in the realization of Russian legislation. However, direct use in the Russian Federation international norms does not mean them in the inclusion of the norms of Russian law: the norms of the MP are not "transforming" into the right of the Russian Federation, but act on their own behalf.
Implementation in the Russian Federation norms of international treaties.
You can select the following forms of implementation.
In the shape of complianceimplemented prohibitions. Substituities refrain from performing actions that are prohibited by international law. For example, under an agreement on the non-proliferation of nuclear weapons in 1968, some states (possessing nuclear weapons) are obliged to not transfer nuclear weapons to other states, not to help, not encourage and not encourage the state to produce or acquire, but other states (not possessing nuclear weapons) undertake not to produce, do not acquire nuclear weapons or other nuclear explosive devices.
Executionimplies active activities of subjects for the implementation of norms. The execution is characteristic of the rules providing specific obligations to make certain actions. In accordance with the convention on the transboundary effects of industrial accidents, 1992, the parties take appropriate legislative, regulatory, administrative and financial measures to prevent accidents , ensuring readiness for them and eliminate their consequences.
In the shape of usecertificate standards are implemented. Subjects independently decide on the use of the capabilities contained in the norms of international law. For example, the UN Convention on the Maritime Law enshrines the sovereign rights of the coastal state for exploration and the development of natural resources of the continental shelf, maintaining economic activities in the exclusive economic zone.
The implementation process includes two types of activities - legal and organizational provision of implementation and direct activities to achieve results.
The implementation mechanism is the structure of the authorities to which the legal support for the implementation of these rules through the implementation of various types of legal activities - law-conducting, control and law enforcement. Legal acts are becoming the result of such activities, the totality of which in theory is called the legal mechanism of implementation.
The implementation of international law in the field of domestic relations is the activities of the subjects of these relationships in accordance with the norms of international law.
The obligation of participants in domestic relations to be guided in their activities by international law is enshrined by domestic legal acts.
Our legislation contains a lot of prescriptions, according to which the competent authorities in their activities guided Not only by the Constitution, laws and other acts, but also by the generally recognized norms of international law and international treaties of the Russian Federation. Such, for example, paragraph 3. Provisions on immigration control, paragraph 3 of the provisions on the Federal Road Agency, paragraph 4 of the Regulations on the Federal Agency for Special Construction.
International obligations of states are implemented by government agencies, organizations and institutions. They are also taken to ensure the domestic implementation of international legal norms.
A combination of domestic legal acts that ensure the compliance of the activities of subjects of domestic relations with the requirements of international law, is domestic regulatory mechanism of implementation.
Legal acts that ensure the implementation of international law in the state may be different.
IN acts of general characterthe fundamental rules relating to the implementation of international law are enshrined, the place of international law is determined in the domestic legal system. These are the positions of Part 4 of Art. 15 Constitution of the Russian Federation, part 1 Art. 5 of the Federal Law "On International Contracts of the Russian Federation", in accordance with which generally accepted principles and norms of international law and international treaties of the Russian Federation are recognized as an integral part of its legal system.
Most acts provide for the traditional formula if other rules are established by the International Agreement, the rules of the International Treaty are applied (Article 1 of the Code of Criminal Procedure, Article 1.1 of the Administrative Code, Art. 4 of the RF RF, Art. 6 of the RF IC).
A number of acts contain the duties of state bodies to take measures to fulfill the norms of international law or monitor the execution of international obligations (Part 3 of Art. 21 of the Federal Constitutional Law "On the Government of the Russian Federation").
Legal acts to ensure implementation A specific agreement can be accepted both before and after the entry into force of the contract
National legislation may be the competent authorities are defined The international treaty, the powers of these bodies are specified, identified the necessary measures to implement international norms, as well as responsibility for non-compliance with the measures provided.
The legal agreement, control over the implementation of the norms of international law in the field of domestic relations, as well as the application of relevant measures for violation of the norms is carried out by legislative, executive, judicial authorities.
Under domestic organizational and legal (institutional) mechanismit is understood as the system of bodies carrying out legal and organizational activities in order to ensure the implementation of international law.
Implementation of acts of international organizations in the Russian Federation.
As a result of the analysis of the practice of implementing acts of international organizations in Russia, the following picture is evapved. The implementation of these documents is carried out by all government agencies; This uses various methods.
The domestic implementation of the provisions of the Acts of Organizations is carried out:
1) the legislative authorities of the Russian Federation. So, in accordance with Art. 6 of the Federal Law of July 19, 1998 No. 114-ФЗ "On the military-technical cooperation of the Russian Federation with foreign states" Decisions of the President of the Russian Federation prohibited or limited to the export of military goods into individual states in order to ensure the implementation of UN Security Council decisions on measures to maintain or restore international peace and security;
2) President of the Russian Federation (for example, Decree of the President of the Russian Federation dated 05.05.2008 No. 682 "On measures to fulfill the UN Security Council resolution 1803 of March 3, 2008") establishes the following that not only measures to apply sanctions against Iran, but and amended the Russian legal system;
3) Government of the Russian Federation (for example, by Resolution of 07.08.1995 No. 798 "On events for the implementation of documents for the Organization for Safety and Cooperation in Europe" Vienna Document of 1994 Negotiations on Confidence and Security Strengthening Measures, "Code of Conducting Military-Political Aspects the security "and" decision on the principles regulating the non-proliferation "" The Government of the Russian Federation approved measures to ensure the implementation of OSCE documents);
4) federal executive bodies. For example, according to the Regulation on the procedure for the investigation of emergency cases with the courts approved by the order of the Ministry of Transport of Russia dated 14.05.2009 No. 75, the investigation into emergency cases with the courts is carried out taking into account the requirements of the Codex of international standards and the recommended practice of investigating the accident or the incident at the sea;
5) Higher Courts of the Russian Federation. Thus, the Constitutional Court of the Russian Federation, in particular, has repeatedly motivated its decisions with the provisions of the standard minimum rules of the United Nations in relation to measures not related to imprisonment (December 14, 1990), the basic principles relating to the role of lawyers (September 7, 1990).
Implementation in the Russian Federation generally accepted principles and norms of international law.
Thus, the Constitutional Court of the Russian Federation to the generally accepted principles and norms of MP refers the provisions enshrined in many international treaties. Some of them can be called generally accepted (Convention IM 156 on equal treatment and equal opportunities for workers' workers and women: workers with family responsibilities (Geneva, June 23, 1981), Convention on the Rights of the Child (November 20, 1989)), Others - no. Thus, European states participate in the Convention on the Protection of Human Rights and Fundamental Relations of 1950 (Recall that there are about 220 countries in the world). In the International Covenant on the Civil and Political Rights of 1966, the United States does not participate.
The generally accepted principles and norms of MP, but the opinion of the Constitutional Court of the Russian Federation are also contained in the acts of the bodies of international organizations. Among them: the Universal Declaration of Human Rights of 1948, the Code of Principles for the Protection of All Persons subjected to detention or conclusion in any form (December 9, 1988), the procedures for the effective implementation of the basic principles of the independence of the judiciary (May 24, 1989 .) And others. Documents of the UN GA under the UN Charter are a recommendatory.
At the same time, the Constitutional Court of the Russian Federation considers as "generally recognized" provisions recorded and in documents of regional organizations, in particular the Council of Europe. Among them: recommendations No. and (85) 11 of the Committee of Ministers of the Council of Europe on the situation of the victim in criminal law and the process (June 28, 1985), resolutions of the Parliamentary Assembly of the Council of Europe No. 1121 on the instruments of citizens participation in representative democracy (1997 ), Recommendations of the Council of Europe No. 1178 on sects and new religious moves (1992). These documents are advisory.
It happens that the Constitutional Court of the Russian Federation refers to the documents that have nothing to do with Russia (the decision of the European Parliament on Sects in Europe (February 12, 1996), the resolution of the European Parliament on the Notaries (January 18, 1994), the Customs Code of the EU ( 1992)). It is unlikely that in these cases we can talk about the "generally acceptedness" of these provisions (in the EU 27 states), especially for Russia.
An attempt to give the definition of "generally accepted principles and norms" was taken by the Supreme Court of the Russian Federation. Resolution of the Plenum of the Armed Forces of the Russian Federation of 10.10.2003 No. 5 under the "generally accepted principles", MP understands the fundamental imperative norms of international law, received and recognized by the international community of state as a whole, the deviation from which is unacceptable. The generally accepted principles of international law, in particular, include the principle of universal respect for human rights and the principle of conscientious fulfillment of international obligations.. Under the "generally accepted norm" of the MP should be understood as a rule of behavior adopted and recognized by the international community of state as a whole as legally binding. The content of these principles and norms of international law may be disclosed, in particular, in UN and specialized agencies.
The improper application by the court of generally accepted principles and norms of the MP may be the basis for cancellation or a change in the judicial act. Incorrect application of the MP norm may occur in cases where the court was not applied by the MP rule to be used, or, on the contrary, the court applied the norm of the MP, which was not subject to use, or when the court was given an incorrect interpretation of the MP norm.
In Russian science there is also no unity on this issue. You can identify two main approaches to this issue. Some authors (T. N. Nashataeva, V. A. Tolstik) believe that generally accepted principles are the same norms, only they have the highest legal force, the deviation from them in the practice of individual states is unacceptable, these are the imperative international norms of the character JUS Coqens. Generally accepted principles have a greater legal force than generally accepted norms (A. N. Talalaev, B. L. Zimnenko, O. A. Kuznetsova). Other authors (A. M. Amirov, A. V. Zhuravlev, T. S. Ommanov) list specific norms of individual documents in which they believe are contained by generally accepted principles and norms of the MP (Universal Declaration of Human Rights of 1948, European Convention on the Protection of Human Rights and Fundamental Relations of 1950, International Covenant on Civil and Political Rights of 1966, etc.).
International legal personality of international organizations.
Confirmation of the International Lawlessness of the Member States of the International Organization does not prevent the implementation of international legal worries of interstate entities with their participation.
The legal personality of international organizations was confirmed by the conclusion of the UN International Court of 1980, regarding the interpretation of the Agreement between WHO and Egypt (March 25, 1951): " International Organization - a subject of international law, related to all responsibilities arising from the general norms of international law, as well as from the constituent act and from contracts in which this organization participates".
In some international events and international treaties, parallel participation and international education, and Member States are possible. The participation of interstate education has in any international treaty does not impose obligations to Member States. It is the interstate education that is obliged to ensure the implementation of the provisions of the Contract.
In the Charter of the Organization, the goals of its education are determined, it is envisaged to create a certain organizational structure (existing bodies), their competence is established. The presence of permanent organs of the organization ensures the autonomy of its will; International organizations participate in international communication from their own behalf, and not on behalf of Member States. In other words, the organization has its own (albeit unauthorized) will, different from the will of the States parties. At the same time, the legal personality of the organization is functional in nature, i.e. It is limited by the statutory goals and tasks. In addition, all international organizations are required to implement the basic principles of MP, and the activities of regional international organizations should be compatible with the objectives and principles of the UN.
Basic rights of international organizations:
Participate in the creation of international legal norms, including the right to enter into international treaties with states and international organizations ;
Participate in international relations through establishing relations with states and international organizations;
Organiza to use certain authority, including the right to make decisions, mandatory for execution;
Use privileges and immunities provided to both organizations and its employees;
Consider disputes between participants, and in some cases with non-participating states in this organization;
Apply sanctions in violation of international obligations.
Non-governmental international organizations, such as the World Federation of Trade Unions, Amnisty International, etc., are establishing, as a rule, legal entities and individuals (groups of persons) and are public associations "with a foreign element". The statutes of these organizations, in contrast to the charters of interstate organizations, are not international treaties. True, non-governmental organizations may have advisory international legal status in intergovernmental organizations, for example, in the UN and its specialized agencies. Thus, the Inter-Parliamentary Union has the status of the first category to Ecosos UN. However, non-governmental organizations are not entitled to create MP standards and, therefore, cannot, in contrast to intergovernmental organizations, have all the elements of international legal personality.
Status of the subjects of the Federation in MP.
The Basic Law of Germany, for example, provides that land (with the consent of the federal government) may enter into contracts with foreign countries. In matters of their own landmarks, government contracts with border with Austria states or their components (Article 16 of the Constitution of Austria) may be concluded. The norms of similar content are enshrined in the right of some other federal states. Currently, international relations are actively involved in the Earth, Canada, the province of Canada, USA, Australia and other education, which in this regard are recognized by the MP entities.
The international activities of the subjects of foreign federations are developing in the following main areas: the conclusion of international agreements; opening of offices in other states; Participation in the activities of some international organizations.
The questions of the conclusion, execution and termination of contracts by states are regulated, primarily by the Vienna Convention on the Law of International Treaties of 1969, but neither it nor other international documents provide for the possibility of independent conclusion of international treaties by the subjects of the Federation.
Generally speaking, MP does not contain a ban on the establishment of contractual relations between states and subjects of federations and subjects among themselves. So, for example, Art. The 1 European Framework Convention on the cross-border cooperation of the territorial communities and the authorities (Madrid, May 21, 1980) provides for the obligation of states to encourage cross-border cooperation between the territorial communities and the authorities.
Under the cross-border cooperation is meant "any agreed actions aimed at strengthening and encouraging relations between neighboring territorial communities and the authorities, as well as the conclusion of any agreements and agreements necessary to achieve the above objectives." Cross-border cooperation is carried out within the limits of the powers of the territorial communities and the authorities defined by the internal legislation of states.
MP "The right of international treaties" is not enough to be a member of a particular international agreement. It is necessary to have international treaties to enter into legal capacity.
As for the status of the constituent entities of the Russian Federation, then, as you know, the Constitution of the USSR of 1977 recognized the Union of the Republics with the subjects of MP. Ukraine and Belarus were members of the UN, participated in many international treaties. The less active participants in the international relations were other allied republics, the constitution of which provided for the possibility of imprisonment of international treaties, exchange of offices with foreign states. With the collapse of the USSR, the former allied republics found complete international legal workers, and the problem of their status, as independent subjects of MP, fell out.
The subjects of the Russian Federation tried to speak independently in international relations, concluded agreements with the subjects of foreign federations and administrative-territorial units, exchanged offices with them and enshrined the relevant provisions in their legislation.
The regulatory acts of some subjects of the Russian Federation provide for the possibility of the conclusion of international treaties on their own behalf. Moreover, in some subjects of the Russian Federation, regulations governing the procedure for the conclusion, execution and termination of contracts, for example, the Law of the Voronezh region "On the legal regulatory acts of the Voronezh region", it establishes that the state authorities of the region are entitled to enter into contracts that are regulatory legal acts, with the state authorities of the Russian Federation, with the subjects of the Russian Federation, with foreign states on issues representing their common, mutual interest.
The subjects of the Russian Federation with the consent of the Government of the Russian Federation may carry out international and foreign economic relations with the state authorities of foreign countries. The Decree of the Government of the Russian Federation of 01.02.2000 No. 91 regulates the procedure for adopting the Government of the Russian Federation on consent to the implementation of such relations to the subjects of the Russian Federation.
Currently, the subjects of the Russian Federation do not have all the elements of international legal personality and, therefore, cannot be recognized as subjects of MP.
Forms and types of recognition in MP.
There are two forms of recognition: recognition of de facto and recognition of de jure.
Confession de facto - this is the official recognition, but incomplete. This form enjoy when they want to prepare the soil to establish relations between states or, when the state considers the recognition of de jure premature. So, in 1960, the USSR recognized the de facto temporary government of the Algerian Republic. As a rule, after a while, de facto recognition is transformed into recognition of de jure. Today, de facto recognition is rare.
Confession de jure - recognition is full and final. It implies the establishment between the subjects of the MP of international relations in full and is accompanied, as a rule, a statement about the official recognition and establishment of diplomatic relations. So, by decree of the President of the Russian Federation of August 26, 2008 No. 1260, the Republic of Abkhazia was recognized by Russia "as a sovereign and independent state." The Ministry of Foreign Affairs of Russia was instructed to "hold negotiations with the Abkhaz party to establish diplomatic relations and the agreement achieved by the relevant documents."
As a specific type of recognition, you can consider the recognition of AD HOC (recognition in this case). This happens when one state enters with another state or the government to some "one-time" relations (let's say, the protection of its citizens in this state) under the policy of official non-recognition. Such actions are not considered as recognition.
Sometimes recognition acts in the form of actions clearly indicating recognition (the so-called "silent recognition"). Examples can be the establishment of diplomatic relations with the new state, the conclusion of a bilateral agreement or the continuation of relations with the new government, which came to power as a result of the revolution.
However, it is not considered as recognition of the fact of participation of non-receptive subjects of MP in one agreement or one international organization (Art. 82 of the Vienna Convention on the Office of States in their relations with international organizations of universal nature (Vienna, March 14, 1975)). For example, according to Art. 9 Act of the International Conference on Vietnam (1973) Signing Act "does not mean the recognition of any parties in the event that this recognition was not previously." Participation in the contract and representation in the international organization, on the one hand, and recognition, on the other hand, the legal relations regulated by different MP standards.
Types of recognition
There are recognition of states and recognition of governments.
Recognition of states it happens when a new independent state comes to the international arena, which arose as a result of the revolution, war, association or partition of states, etc. The main criterion of recognition in this case is the independence of the recognized state and independence in the implementation of state power.
Recognition of government it happens, as a rule, simultaneously with the recognition of the new state. However, the recognition of the government without recognizing the state, for example, in the event of a government coming to power in the already recognized state, unconstitutional means (civil wars, coups, etc.). The main criterion for the recognition of the new government is its effectiveness, i.e. Valid actual possession state power In the relevant territory and its independent implementation. In this case, the Government is recognized as the only representative of this state in international relations.
A special type of recognition of governments is the recognition of emigrant governments or governments in exile. The practice of their recognition was widespread during World War II. However, the emigrant government often loses relationship with the relevant territory and the population and therefore ceases to submit this state in international relations. Currently, the recognition of governments in exile is rarely used.
In the middle of the 20th century, widespread recognition of resistance organs and national liberation movements. This recognition was neither recognition of the state, pi recognition of the government. Resistance bodies were created within the already recognized states, and their powers were different from the traditional powers of governments. As a rule, the recognition of resistance bodies preceded the recognition of the government and dealt with the task of imagining the people fighting for the liberation in international relations, to ensure it international defense and the possibility of obtaining assistance.
Currently, there is a desire of certain leaders of national separatist movements to obtain the status of resistance bodies, and, accordingly, the rights and advantages arising from this.
Peaceful funds as the only challenged way to resolve international conflicts
International conflicts differ in the grounds, forms of manifestation, types, decision methods and other grounds. There are two main types of international conflicts: dispute and situation.
Dispute - This is a combination of mutual claims of subjects of international legal relations on issues related to their rights and interests, interpretation of international treaties, etc.
Under situation it is understood as a combination of the circumstances of the subjective nature, which caused the debate between the subjects of international legal relations, out of connection with the specific subject of the dispute.
Thus, in the situation, there is still no dispute, but there are prerequisites for its occurrence; the situation is a state of a potential dispute..
In accordance with the standards of MP, and in particular with the UN Charter, as well as taking into account the relevant principles of the final act of the CSCE, the threat of force or its application should not be used to resolve disputes between states. They must be resolved by peaceful means in accordance with international law. All states must conscientiously comply with their obligations to maintain international peace and security in accordance with the generally recognized principles and norms of international law.
To implement the principle that all disputes must be permitted exclusively by peaceful means, the relevant dispute resolution procedures are required. Such procedures are a significant contribution to the strengthening of international peace and security and justice.
International disputes should be resolved on the basis of sovereign equality of states and taking into account the principle of free choice of funds in accordance with international obligations and principles of justice and international law.
Arrangement, whether it is a special or previously reached, between the parties in the dispute on the procedures for its settlement, suitable for interested parties and corresponding to the peculiarities of the dispute is essential for the effective and durable system of peaceful dispute settlement.
The implementation of the compulsory decisions endowed in the framework of the regulation of the peaceful dispute settlement is a significant element of any general structure of the peaceful settlement of disputes.
In this way, peaceful means of resolving international disputes are a set of institutions of peaceful settlement of international conflicts in accordance with the basic principles of MP, MP and the principle of justice.
Institute of Peaceful Means Resolving International Disputes in MP - Inter-sectile. Its norms are contained in various industries of MP - the right of international security, the right of international organizations, international humanitarian law, etc.
If all the disputes arise, states pay special attention to prevent such development of the dispute, which will pose a threat to international peace and security. They take appropriate steps to properly conduct their disputes before their settlement. For these purposes of state:
Consider disputes at an early stage;
Refrain during the dispute from any actions that may worsen the situation and make a more difficult peaceful settlement of the dispute or prevent him;
We strive using all relevant tools, achieve agreements to preserve good relations between them, including if it is advisable, take temporary measures that are not damaged to their legal positions in the dispute.
Depending on the degree and the form of the participation of the arguing parties in making a decision on the merits, the dispute distinguishes three groups of peaceful means of resolving international disputes: diplomatic; legal; Resolution of disagreements in international organizations.
Diplomatic means should include: direct negotiations; conciliation procedure (investigative and conciliation commission); Negotiations with the participation of third parties (mediation, good services). Legal funds include arbitration proceedings and a judicial procedure. The resolution of disagreements in international organizations involves participation in the resolution of the dispute in the bodies of international organizations that the empower is provided by international documents.
Legal regime of the Arctic.
The territory of the Arctic is divided between the United States, Canada, Denmark, Norway and Russia for the so-called "polar sectors". According to the concept of the polar sectors, all the land and islands located north of the Arctic coast of the corresponding indolar state within the sector formed by these coast and converging at the point of the North Pole meridians are considered to be part of the territory of this state.
Determination of the boundaries of the Arctic in the Priarctic countries differently. At the same time, their legislation on the continental shelf, as well as economic or fishing zones apply to the Arctic areas.
The USSR secured his rights in the polar sector by Decree of the Presidium of the USSR CEC dated 15.04.1926, according to which all lands, both open and those that can be open in the future, located between the northern coast of the Soviet Union and converging from the North Pole meridians were Announced the territory of the USSR. The exceptions are the islands of Spitsbergen Archipelago, owned by Norway on the basis of a Spitsbergen Treaty (1920)
After the collapse of the USSR, the rights of the Russian Federation in the Arctic are enshrined in the Constitution of the Russian Federation, the Law of the Russian Federation of 01.04.1993 No. 4730-1 "On the State Border of the Russian Federation", federal laws of 30.11.1995 No. 187-FZ "On the Continental Shelf" and from 17.12. 1998 No. 191-FZ "On the Excptionive Economic Area of \u200b\u200bthe Russian Federation". Currently, the Federal Law "On the Arctic Zone" is being developed.
The side boundaries of the polar sectors are not state borders of the respective countries. The state territory in the polar sector is limited by the external limit of territorial water. However, given the special significance of the polar sectors for the economy and the safety of coastal states, the difficulty of shipping in these areas, a number of other circumstances, we can say that legal regime differs from the territorial water regime. Polar states establish a permitting procedure for maintaining economic activities in the area of \u200b\u200bthe polar sector, the rules for environmental protection and so-called.
Recently, the cooperation of the Arctic States is actively developing.
In 1993, representatives of the Government of the Arctic countries adopted the Environment Declaration and Development in the Arctic. Arctic states confirmed their intention to protect and maintain the Arctic Environment, special interconnection is recognized existing between the indigenous peoples and the local population and the Arctic, and their unique contribution to the protection of the Arctic Environment.
Currently, negotiations are underway on the status of natural resources of the Arctic Ocean. 1982 Maritime Rights Convention allows the Russian Federation to apply for an expanded shelf area of \u200b\u200bthe Arctic, up to the North Pole, in the sector from 30 meridian to 180 °, with access to the island of Wrangel, as well as an enclave of the continental shelf outside 200 miles in the Sea of \u200b\u200bOkhotsk .
In addition, Russia to establish sovereign rights to an enclave of the continental shelf area of \u200b\u200b56.4 thousand square meters. KM in the Sea of \u200b\u200bOkhotsk must be coordinated with Japan used source reference rates of marine spaces. The initial shelf reference lines must have exclusively Russian affiliation and should not begin with the coast of the disputed area to which Japan claims. Until the final settlement of the issue of the affiliation of the islands of the Kuril Ridge, Russia cannot use them as the source lines for reference the width of all marine spaces, including the continental shelf outside 200 miles.
Antarctic Legal Mode.
In the late 1950s. Washington conference was convened to determine the mode of activity in Antarctic. As a result, in 1959, the Antarctic Treaty was signed (Washington, December 1, 1959), in which about 40 states participate. This contract at the conference of the States Parties in 1995 was recognized as indefinite.
In 1959, the conference participants put forward the ideas of the ads of Antarctic with the general heritage of humanity and proposed to transfer the Antarctic Management Functions to the UN. However, the countries participating in the contract for this did not go.
In accordance with the provisions of the Antarctic Treaty, all territorial claims of states in the Antarctic "are frozen". Without recognizing anyone sovereignty in Antarctic, the contract does not deny the existence of territorial claims, but freezes existing and prohibits the presentation of new claims.
The contract establishes that Antarctica can only be used for peaceful purposes. In the Antarctica is prohibited, in particular: the creation of military bases and fortifications, holding military maneuvers, tests of any types of weapons. In addition, on the territory of Antarctica is prohibited nuclear explosions and reset radioactive waste. Thus, Antarctic is recognized as a demilitarized territory. The contract, however, does not prevent the use of military personnel or equipment for scientific research in the Antarctic or for any other peaceful purposes.
To facilitate international cooperation in scientific research Antarctica produces: sharing information regarding scientific work plans in Antarctica; exchange of scientific personnel in the Antarctic between expeditions and stations; The exchange of data and the results of scientific observations in the Antarctic and provides free access to them.
Strict control is established for compliance with the contract. Each State Party may assign its observers who have the right to access any Antarctic area at any time. Antarctic stations, installations, equipment, sea and aircraft of all states in the Antarctic are open to inspection.
Observers and scientific staff of stations in Antarctic are under the jurisdiction of the state, whose citizens they are.
The legal regime of the living resources of Antarctic is also regulated by the Convention on the Conservation of Antarctic Marine Living Resources (Canberra, May 20, 1980), according to which any fishery and related activities are carried out in accordance with the following principles: preventing the reduction in the number of any captive population to levels below such that provide its sustainable replenishment; maintaining environmental relationships between pollutants, depending on them and associated populations of the marine living resources of Antarctic and the restoration of exhausted populations; Prevent changes in the marine ecosystem, which are potentially irreversible.
The Government of the Russian Federation issued a resolution of December 11, 1998 No. 1476 "On approval of the procedure for consideration and issuing permits for the activities of Russian individuals and legal entities in the area of \u200b\u200bthe Antarctic Treaty". Currently, permission is issued by Roshydromet in coordination with the Ministry of Foreign Affairs of Russia and the Ministry of Internal Affairs of Russia on the basis of applications of Russian individuals and legal entities and the conclusion of Rostechnadzor on assessing the impact of planned activities in the Antarctic Agreement on the Antarctic Environment and dependent on it and related ecosystems.
Responsibility in MP.
Currently, a whole branch of MP is international responsibility. The norms about international legal liability are also in other industries of MP (the right of international legal personality, the right of international organizations, the right of international security, etc.).
Basins international responsibility are the objective and subjective signs provided for by international legal norms. There are legal, actual and procedural foundations of international legal liability.
Under legal the grounds understand the international legal obligations of the subjects of the MP, in accordance with which this or that act is declared an international offenses. In other words, under the international offense, the Norm of MP is violated, but the subjects of the subjects follow this rule of behavior. Therefore, the list of sources of legal grounds for responsibility is other than the circle of sources of MP. Legal foundations International responsibility arise from: contracts, customs, resolutions of international organizations, conference documents, decisions of international courts and arbitration, as well as unilateral international obligations of states that establish mandatory rules for this state (in the form of declarations, applications, speeches officials etc.).
Actual the basis of responsibility is an international offense, in which has all the elements of the empowerment . The actual basis is expressed in the act of the subject, expressing in the actions (inaction) of its bodies or officials who violate international legal obligations.
Procedural the basis of responsibility is the procedure for consideration of cases of offenses and attracting responsibility. In some cases, this procedure was recorded in detail in international legal acts (for example, in the Charter of the International Military Tribunal for the Court and the Punishment of the Main Military Criminals of the European Countries of the Axis (London, August 8, 1945)), in others - its choice is left at the discretion of organs applying responsibility measures.
Sanctions in international law.
Historically, sanctions in MP were originally applied in order of self-help. As the international relations system complicates, the need for closer integration of states has emerged. A system of international organizations with functional legal personality is being created, so their right to coercion is secondary and special. As an element of the legal personality of an international organization, the right to coercion means the possibility of applying forced measures only in those areas of interstate relations, which relate to the competence of the organization and only in certain limits of limits.
Sanctions cannot have a preventive action; Their goal is to protect and restore already violated rights of subjects of MP. No references to the national interests of the state as an excuse of sanctions are not allowed.
Sanctions in MP, these are forced measures of both an armed and non-equipped nature used by the MP entities in the established procedural form in response to an offense in order to suppute it, restore violated rights and ensuring the responsibility of the offender.
The ratio of responsibility and sanctions in international law
International legal sanctions (in contrast to most types of domestic sanctions) are not a form of international responsibility. The concepts and categories of MP are not always identical to those applied in national law.Sanctions in MP differ from responsibility with the following features:
Sanctions are always the actions of the victim (victims) applied to the offender, while responsibility can act in the form of self-restraints of the offender;
Sanctions, as a rule, are applied to the implementation of responsibility and are the prerequisite for its occurrence. The purpose of sanctions is to terminate an international offense, restoring violated rights and ensuring liability;
Sanctions are applied in a procedural order, which is in which internationally legal liability is carried out;
Sanctions are the right of the victim; their use does not depend on the will of the offender;
The basis for the application of sanctions is to failure to stop unlawful actions and implement the legal requirements of the victims of the subjects.
International legal sanctions - These are the forced measures carried out in special procedural proceedings used in special procedural proceedings applied by the MP entities for the protection of international law enforcement, when the offender refuses to stop the offense, restore the rights of victims and voluntarily fulfill the obligations arising from its responsibility.
The status of acts of international intergovernmental organizations is determined by their charters. Within its competence, the authorities of these organizations take, as a rule, acts recommendations or acts of law enforcement. So, according to Art. 10, 11, 13 UN Charter General Assembly is authorized to "make recommendations", and according to Art. 25 members UNsubmissions of the Security Council decisions, but these decisions themselves are related to its law enforcement.
The international organization itself is not entitled to turn into an international "legislator". At the same time, the members of the organization can use the organization for rule-making activities. At the sessions of the UN General Assembly, resolutions are adopted, fixing approval on behalf of the Organization developed within its framework. So it was in relation to the Treaty on the non-proliferation of nuclear weapons (1968), the Convention on International Responsibility for Damage Caused by Space Objects (1971), International Covenants on Human Rights (1966), the International Convention on Combating hostages ( 1979) and other acts. In these cases, the text of the contract is published in the UN documents in the form of an annex to the General Assembly resolution. But it is the contract (after its signing by states and entry into force), not a resolution, acquires the importance of the source of international law. A similar method applies to other international organizations of a universal nature. A few examples: within the International Agency for atomic energy (IAEA) The texts of the Convention on the Operational Alerts on the Nuclear Accident and the Convention on Assistance in the event of a nuclear accident or radiation emergency (1986) were adopted (1986), within the framework of the ILO - the text of the Convention on Tribal and Leading Indigenous Lifesty of People in Independent Countries (1989 G.), as part of the UN on education, science and culture - Convention on measures aimed at prohibition and prevention of illegal importation, export and transfer of ownership of cultural values \u200b\u200b(1970). At the same time, they stand out by their special legal significance of the acts of international organizations that
§ 5. Acts of international organizations
member States are given a regulatory nature. Such resolutions are accepted by the main (higher) bodies of organizations in accordance with their functions in cases where the effective implementation of these functions is impossible without creating new forms of international law and, therefore, imparting resolutions of the status of international law.
We can consider generally accepted mandatory legal force of the standards of the resolution of the UN General Assembly 1514 (XV) of December 14, 1960. Declaration on the provision of independence to colonial countries and peoples. " This act was not limited to confirmation or interpretation of international legal norms in force, and in accordance with the objectives and principles of the UN Charter, established new imperative norms regarding the complete prohibition of colonialism and the obligation to immediately provide independence to the peoples of the colonies. This meant new, compared with ch. XI - XIII of the UN Charter, resolving issues affecting the status of non-unautheltering territories and the international custody system. It is noteworthy that in subsequent UN documents and in the acts of our state reference to the provisions of the Declaration are equivalent to the legal characteristics of links to international treaties.
The controversial is considered to be in science. Assessment of the UN General Assembly resolution 2625 (XXV) dated October 24, 1970, "Declaration on the principles of international law relating to friendly relations and cooperation between states in accordance with the Charter of the United Nations". The judgment that the role of the declaration comes down to the interpretation of the principles already enshrined in the UN Charter, it causes an objection, since the Declaration concrete the principles of the Constitution, the rights and obligations of states according to each principle. Such concretization is nothing but normal-making. Accordingly, the act of codification and concretization of the basic principles is essentially its regulatory act, i.e. the source of international law.
It is originally partitioned by the rule-making role of the UN General Assembly in the adoption of amendments to the UN Charter and the Statute of the UN International Court of Justice. According to Art. 108 Charter and Art. 69 Statute of the amendment are accepted by the General Assembly and are ratified by Member States UN.In practice,
Chapter 5. Sources of international law
united Nations Such resolutions related to Art. 23, 27, 61, 109 and those who had a normative character were accepted three times - in 1963, 1965 and 1971.
Recently, the UN Security Council has been included in the rulemaking, the decision of which is still limited to law enforcement. The value of the source of international law has been approved by its resolution 827 of 25 May 1993. The Charter (Statute) of the International Tribunal in order to prosecute persons responsible for serious violations of international humanitarian law on the territory of the former Yugoslavia.
Regarding the activities of some other international organizations, it is possible to adopt adoption by the adoption of administratively -reglamentation acts of the type of standards of the International Organization of Civil Aviation (ICAO), WHO sanitary rules, the IAEA rules for safe handling of radioactive materials. The possibility of making rules within the framework of the International Body for the Sea DNU is provided for in the UN Convention on the Law of the Sea (Article 160, 162, etc.). With the positiveness of states, such rules may be perceived as regulations.
