The concept and subject of regulation of international law. International law: concept and subject of regulation Subject of legal regulation of international law

law international domestic

International law is an extensive and extensive complex of legal norms created by states and interstate organizations through agreements and representing an independent legal system, the subject of which is interstate and other international relations, as well as certain domestic relations. For a more complete understanding of it, it is necessary to take into account other signs, first of all, the participation in the creation of norms along with the states of some other subjects of law, peculiar ways of implementing and enforcing international legal norms through collective or individual actions of the states themselves.

International law in its original characteristics - a set of legal norms and a regulator of certain relations - is related to the law of the state, domestic, national law, which is a traditional object of jurisprudence, starting with the theory of state and law.

International law as a terminological category is characterized by a certain degree of conventionality. The term "international law", historically established and accepted in state and interstate acts, other official documents, in scientific publications and training courses, is not quite adequate to the true meaning of the concept. Its prototype is the term “jus gentium” (“law of peoples”) that has developed in Roman law, which originally meant a certain set of rules that applied to all free people within the territory of the Roman state, regardless of their belonging to a particular clan or nationality. Later, this term acquired a broader meaning as a set of universally recognized norms in the relationship of Rome with other states, i.e. became a common law for all peoples. The designations in other languages ​​are identical: in English - "International Law", in French - "Droit international", in German - "Volkerrecht", etc.

Thus, international law is an independent normative complex (legal system), a set of legal norms created by states in order to regulate their relations and other relations in the sphere of their common interests. Really existing modern interstate law is created not directly by peoples, but mainly by states as sovereign international entities to regulate interstate relations in all their relationships and is ensured mainly by the efforts of these states themselves.

International relations are specific links between states regarding the exchange of material and spiritual values ​​that currently exist.

The main feature of international law is that its subjects are mainly sovereign states. From this, in particular, it follows that in the international arena, states act as equal participants in international communication and there is no supreme power over them. The subjects of domestic law are individuals and legal entities, state bodies.

International law differs from national law also in terms of the object of regulation, which for it are relations between states, relations of sovereign entities independent of each other. National law regulates the relations that arise between the subjects of this system of law within the state borders of a state.

International law is also characterized by a special process of norm formation in comparison with national law. In such a system of communication, there can be no central legislative bodies standing above the states, and the norms governing such communication can only be created by the participants in communication themselves, i.e. states.

There are no executive bodies in international law. The rules of law in international communication are applied and enforced by the participants in communication - the states.

No compulsory jurisdiction. Since the participants in international communication are sovereign states, a dispute between them about the violation of international law can be considered in one or another international court only with the consent of the disputing states.

The links between the elements of the system of international law in the field of rule-making and law enforcement are predominantly of a coordinating nature.

The functions of international law are the main directions of the influence of international law on relations that are the subject of international legal regulation.

The social purpose of international law lies in the organization of international relations that meet the current level of human civilization.

Consider the legal functions of international law:

Stabilizing - consists in the fact that international legal norms are called upon to organize the world community, establish a certain international legal order, strive to improve it, make it more stable.

Regulatory - by establishing the international legal order and regulating public relations accordingly, international legal norms endow participants in international relations with certain rights and obligations.

Protective - consists in ensuring the proper protection of international legal relations. In case of violation of international obligations, the subjects of international legal relations have the right to use the measures of responsibility and sanctions allowed by international law.

International law as a legal system

International law as a science- a body of scientific knowledge, a system of views on the problems of international law and its development.

International law as an academic discipline- a set of techniques and methods for the study of international law.

History of MChP. The birth of international law

There are several points of view on the question of the time of the emergence of international law:

  • International law arose along with the emergence of states, when states began to create legal norms to regulate their relations;
  • International law arose in the Middle Ages, when states realized the need to create common rules of international law for them and began to obey them;
  • International law arose in modern times, when large centralized sovereign states appeared and political unions of states were formed.

The most common is the first point of view. According to this point of view, there are the following stages in the formation of international law:

  • International Law of the Ancient World (before the 5th century AD);
  • International law of the Middle Ages (5th-17th centuries);
  • International law of the Bourgeois time (17-19 centuries);
  • International law of the first half of the 20th century;
  • Modern international law (since the adoption of the UN Charter in 1945).

Features of international law

  • Subject of regulation– relations between sovereign and independent entities;
  • Subjects of law- the subjects of international law are states, state-like formations, nations and peoples fighting for their independence and international organizations;
  • Sources- international legal norms are expressed in the form of international treaties, international customs, acts of international conferences, etc.;
  • - the norms of international law are created by the subjects jointly on the basis of the free will of equal participants;
  • - the implementation of international law is ensured by state bodies, there are no supranational enforcement mechanisms. Coercion can only be carried out by states (individually or collectively).

International law system

International law system is a set of interrelated principles and norms governing international legal relations.

The system of international law includes:

  • Branches (law of external relations, law of international treaties, etc.);
  • Sub-branches of international law (consular law, diplomatic law, etc.);
  • Institutes of international law (representation institute, etc.);
  • Norms of international law;
  • Generally recognized principles of international law.

Also, in the system of international law, the following relations are distinguished:

  • Relations of a state nature;
  • Non-state relations.

Functions of international law

Functions of international law– the main activities of the subjects of international law:

  • Stabilizing - international legal norms are aimed at stabilizing international relations, establishing a certain legal order;
  • Protective - consists in ensuring the protection of international relations;
  • Regulatory - establishes a certain legal order, giving rights and obligations to the subjects of international law.

Correlation between international and domestic law

International and domestic law are 2 legal systems that have both similarities and differences.

Differences:

  • Subject of regulation- the subject of international law is the relationship of sovereign and independent of each other subjects (international private law regulates relations with the participation of individuals and legal entities), and the subject of domestic law is the relationship between subjects of national law;
  • Subjects of law- the subjects of international law are states, state-like formations, nations and peoples fighting for their independence and international organizations, and the subjects of domestic law are individuals, legal entities and public entities;
  • Sources- sources of international law are international treaties, international customs, acts of international conferences, etc., and sources of domestic law are national legislation;
  • Way of creating legal norms- the norms of international law are created by the subjects jointly on the basis of the free will of equal participants, and the norms of domestic law are issued by the competent state bodies;
  • Enforcement Method- the implementation of international law is ensured by state bodies, there are no supranational enforcement mechanisms. Coercion can only be carried out by states (individually or collectively). And the implementation of the norms of domestic law is controlled by the competent authorities of this state.

Similarities:

  • Direction of activity- both international and domestic law is aimed at regulating social relations and establishing peace and law and order;
  • Law structure Both international and domestic law consist of rules of law.

Correlation between international law, foreign policy and diplomacy

International law- a system of norms and rules governing relations between subjects of international law.

Foreign policy- the general course of the state in international relations.

Diplomacy- an instrument for implementing the foreign policy of the state.

Thus, diplomacy is part of foreign policy, foreign policy is part of international law.

International law develops under the influence of a set of foreign policy courses of states, and diplomacy, in turn, ensures the achievement of a common denominator in the implementation of states of their foreign policy.

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CONCEPT, SUBJECT AND SYSTEM OF INTERNATIONAL LAW

The concept of public international law

Sources of international law

Lawmaking in international law

Codification and progressive development of public international law

Foreign policy of the Russian Federation and international law

Literature

The concept of public international law

In the era of the Roman Empire, international law was called "the law of peoples" (jus gentium). As Emer ds Vattel (Switzerland) noted, the Romans often confused the law of peoples with the law of nature, calling the law of peoples natural law, since it is recognized and applied in general by all civilized nations, associations in the state of Vattel E. Law by the people or the principles of natural law applied by to the conduct and affairs of nations and sovereigns. M.. 1960. Concerning the right of peoples, Emperor Justinian said that it is common to the entire human race. The affairs of men and their needs have compelled all nations to create for themselves some rules of law, for wars broke out, which led to captivity and enslavement, which is contrary to natural law, since by virtue of natural law all people are born free. Thus, the Romans considered the law of nations to be part of the natural law, Ct. by: Vattel E. Decree. op. S. 1. But since the term "gentes" meant only peoples, I. Kant proposed to translate this term as "the law of states" (jus publicum civitatum). However, even before I. Kant, interstate law was called international law (international law, droit international, diritto internationale).

Until the Second World War, international law accumulated the norms of international public and private law. However, already at the beginning of the 20th century. there has been a process of rapid growth of the principles and branches of private international law. After World War II, international law split into two parts: public international law and private international law. The term "public international law" is enshrined in Art. 38 of the Statute of the International Court of Justice, as well as in the resolution of the UN General Assembly on the progressive development of international law and its codification of December 11, 1946. The preamble of this resolution indicates the need for a thorough and comprehensive study of everything that has already been achieved in the development of international law and its codification, as well as "the study of the projects and activities of official and unofficial institutions directing their efforts to promote the progressive development and formulation of public and private international law" . However, the term “international law” is also used in the UN Charter itself (Article 13).

The Regulations on the International Law Commission (ILC), approved at the II session of the UN General Assembly on November 21, 1947, indicate that the ILC deals primarily with issues of public international law.

The term "public international law" is often found in Russian educational and monographic literature See, for example: International law / otv. ed. G. I. Tunkin. M., 1982. S. 3; International law / otv. ed. G. I. Tunkin. 1994. S. 3. . Much more often this term is used by foreign authors See, for example: Manual of Public International Law/ Ed. by M. Sorensen. London-on, 1978; Klajkowski A. Prawo miedzynarodwe publiczne. Warczawa, 1970; Agnie! G. Droit international public. Paris, 1998. .

This textbook is called "International Public Law". However, it often uses the term “international law”, which is more common in treaty practice. At the same time, it should be borne in mind that we are talking about the norms and principles of public international law. This term was first proposed by the English philosopher I. Bentham at the end of the 18th century.

Some foreign authors (for example, F. Jessep) propose to replace the concept of "international law" with "transnational law". The latter should also regulate the relationship between states and transnational companies.

A milestone in the development of international law as an independent branch was the publication of the book of the Dutch lawyer Hugo Grotius "On the Law of War and Peace" (1625). For the first time, it systematized the rules on the law of war, the division of war into public and private, maritime law, family law, and acquisitions usually derived from the law of peoples. Hugo Grotius gives convincing evidence of the existence of the law of peoples. Referring to Dion Chrysostom, he noted that this right is the "acquisition of time and custom" Grotius G. On the right of war and peace. Three books that explain the natural law and the law of peoples, as well as the principles of public law / transl. from lat. M., 1956. S. 75. .

A significant contribution to the development of international law was made by the works of foreign scientists S. Puffendorf (1632-1694), K. Benkershoek (1673-1743), E. Vattel (1714-1767), G. Hegel (1770-1831), I. Kant ( 1724-1804), as well as Russian international lawyers: F. F. Martens (1845-1909), L. A. Shalland (1870-1919), V. E. Grabar (1865-1956), V. A. Nezabitovsky (1824-1883) and others.

The development of any definition is a laborious and responsible business. Many textbooks published abroad do not give a clear definition of international law See, for example: Manual of Public International Law/ Ed. by M. Sorensen. London-on, 1978. . There is no definition of international law in the works of well-known foreign experts in international public law, translated into Russian Brownli Ya. Mezhdunarodnoe pravo / transl. from English. M., 1977. Book. one; Arechata E. X. Modern international law / transl. from Spanish M., 1983. .

However, according to the well-known Cuban lawyer Bustamante, by the beginning of the 20th century. foreign scholars have proposed more than a hundred definitions of public international law. As the French professor Guy Agniel rightly points out, each author is free to propose such a definition of international law that seems to him the most relevant to reality. Agniel G. Droit International Public Pans, 1998. P. 8. .

At the end of the XIX century. professor of Kharkiv University A. N. Stoyanov wrote that “international law is a set of general principles and rules that determine the mutual relations of independent states and resolve clashes in the laws and customs of individual peoples in order to strengthen and develop global civil circulation.” This definition is the most complete. It does not, however, recognize international law as a body of legal norms. At the same time, A. N. Stoyanov noted that the goal of international law is to strengthen and develop the global civil circulation. It can be assumed that, according to this author, international law should also regulate private law relations with a foreign element.

According to the definition of Professor of St. Petersburg University F. F. Martens, international law is a set of legal norms that determine the conditions for the peoples to achieve their life goals in the field of mutual relations Marten F. F. Modern international law of civilized peoples. SPb., 1882. T. 1. S. 16. . It can be assumed that in this definition peoples are recognized as a subject of international law. Positive is the conclusion of F. F. Martens that international law governs international relations in a certain area.

A more concise definition was proposed by N. M. Korkunov. In his opinion, international law is “a set of legal norms that determine the international protection of rights” Korkunov N.M. International law and its system // Legal Chronicle, October 1891. P. 243. . From this definition it is difficult to establish who is the subject of international law and what rights are involved.

Professor of Odessa University P. Kazansky believed that international law is a set of legal principles that determine the mutual relations of states and international communities and the civil rights of foreigners Kazansky P. E. Textbook of international law, public and civil. Odessa, 1902. S. 6. . This definition draws attention to several short stories. Firstly, according to P. Kazansky, international law should regulate the relations not only of states, but also of international communities (this term refers to international organizations). Secondly, the norms of this law should determine the scope of civil rights of foreigners, which is the object of regulation of private international law.

At the beginning of the XX century. L. Kamarovsky formulated the concept of international law as follows: “International law refers to the totality of legal norms that determine the relations of states to each other, to their subjects and to all other people in general, as they are still members of the International Union, but, in essence, of all mankind» Kamarovsky L. International law. M., 1905. S. 3. . We note three positive qualities of this definition. First, it designates the subjects of international law - states; secondly, the object of the legal relationship is designated - humanity as a whole; thirdly, it is pointed out that international law regulates the relations of states not only with each other, but also with subjects, as well as with individuals in general.

Privatdozent of St. Petersburg University A. M. Gorovtsev proposed to define international law as “a circle of norms for the mutual restriction of states in their state domination” A. M. Gorovtsev. Some main controversial issues of the doctrine of law in connection with international law. SPb., 1917. S. 122. . According to this author, states are subjects of international law. However, he reduced the operation of the norms of international law only to the sphere of state power.

After World War II, more than 30 textbooks on international law were published in the USSR and then in the Russian Federation. Each of them contains a short or extended definition of international law.

A. Ya. Vyshinsky defined international law as “a set of norms that regulate relations between states in the process of their struggle and cooperation, expressing the will of the ruling classes of these states and provided by coercion carried out by states individually or collectively” Vyshinsky A. Ya. Questions of international law and international politicians. M., 1949. S. 480. . Positive in this definition is the indication that the implementation of international legal norms is ensured by coercive measures carried out by states individually or collectively. Before the Second World War and immediately after it, states were recognized as the only subject of international law, and this fact is reflected in the definition of A. Ya. Vyshinsky. Currently, this definition is outdated and does not reflect the prevailing realities.

International law, noted in the textbook of the Institute of State and Law of the Academy of Sciences of the USSR, can be defined as a set of norms regulating relations between states in the process of their struggle and cooperation, aimed at ensuring their peaceful coexistence, expressing the will of the ruling classes of these states and protected, if necessary, by coercion. exercised by states individually or collectively International law. M., 1957. . A similar definition is contained in the VUZI textbook International Law. M., 1960 S. 12-13, and it largely coincides with the definition contained in the textbook International Law previously published by the Institute of State and Law of the USSR Academy of Sciences / rev. ed. E. A. Korovin. M., 1951. S. 5. .

According to the authors of the textbook of the Diplomatic Academy, international law can be defined as a set of norms (rules of conduct), contractual and customary, regulating interstate relations, developed as a result of the struggle and cooperation of states, exercising coercion against violators, the nature and limits of which are also the result of an agreement Modern international law. M.. 1976 S. 2. . In this definition, the authors rightly focus on the fact that the forms and volumes of coercion are determined by the subjects of international law by concluding an agreement.

A very concise definition of international law is given in the VYUZI textbook: international law is a set of legal norms governing relations between states International law / otv. ed. L. A. Modzhoryan and N. T. Blatova. M., 1970. S. 3. . In a later edition of the textbook, the WYUZI provides a detailed definition of international law. International law, it says. - this is a system of legal principles and norms that are created by states and other subjects of international law, aimed at maintaining peace, security and cooperation and provided, if necessary, by coercion carried out by its subjects individually or collectively. ed. N. T. Blatova. M., 1987. S. 7. . This definition raises no particular objections, it reflects the essence and social purpose of international law. However, it does not reflect the progressive role of international law.

In the course of international law (3rd ed.), prepared at MGIMO, international law is defined as follows: modern international law has as its main content generally recognized principles and norms designed to regulate relations between subjects of international communication in order to effectively ensure international peace and develop international cooperation on the basis of peaceful existence in some cases and socialist internationalism in others. A course of international law. M.. 1972. S. 16 -17. .

The definition given in the MGIMO textbook (5th ed.) specifies the concept of “subject of international law”: “states and other subjects of international law” are mentioned International Law. M., 1987. S. 26. .

A detailed definition of modern international law is given in the seven-volume Course of International Law. Modern international law, indicated in this collective work, can be defined as a system of legal norms governing relations between states and other subjects of international law, created by coordinating the wills of the participants in these relations and provided, if necessary, by coercion, which is carried out by states, as well as international organizations international law. M „ 1989. T. I. S. 29. . This definition is generally accepted. Let us note at the same time that almost all subjects of international law have the right to enforce the implementation of international law.

According to the authors of the Moscow State University textbook, modern international law can be defined as a set of legal norms that regulate relations between subjects of international law (primarily and mainly between states), express the agreed wills of the participants in these relations and are provided, if necessary, by coercion carried out by themselves. subjects individually or collectively International law / otv. ed. G. I. Tunkin. M., 1974. S. 46-47. . A later edition of the Moscow State University textbook gives a slightly different definition of international law: the latter is a set of legal norms governing relations between states, including heterogeneous in their class nature, as well as other subjects of international law, created by coordinating the wills of the participants in these relations and provided if necessary, coercion, which is carried out by the states themselves individually or collectively, as well as by interstate organizations International law / otv. ed. G. I. Tunkin. M., 1982. S. 44-45. . Somewhat later, in the next edition of the textbook, the following definition of international law is proposed: a system of legal norms created by states (and partly by other subjects of international law) by coordinating their wills that regulate certain social relations. Compliance with these norms is ensured, if necessary, by coercion carried out by states, as well as by interstate organizations International law / prev. redol. G. I. Tunkin. M., 1999. S. 10. . This definition unreasonably downplays the role of subjects of international law other than states. In addition, it is not clear what "certain" social relations are referred to in the above definition of international law.

The textbook, prepared mainly by teachers from the Ural State Law Academy, defines international law as “a complex set of legal norms created by states and interstate organizations through agreements and representing an independent legal system, the subject of which is interstate and other international relations, as well as certain intrastate Relations” International law / otv. ed. G. V. Ignatenko and O. I. Tiunov. M., 1998. From 6. . This definition rightly points out that the norms of international law are created by states and interstate organizations, i.e., the leading subjects of this law. However, it is not entirely clear how the norms of international law can directly regulate domestic relations and what is included in the concept of "certain domestic relations".

International law, as indicated in the newest textbook of the IGP RAS, is a system of contractual and customary legal norms expressing the agreed will of its subjects and aimed at regulating interstate relations in order to develop international cooperation and strengthen peace and international security. ed. E. T. Usenko, G. G. Shinkaretskaya. M., 2003. S. 17. . In general, this is the most successful definition of international law. However, it should be borne in mind that the norms of international law govern not only interstate relations, but international relations in general. Otherwise, this process would be unsystematic, chaotic.

The Bulgarian professor M. Genovski proposed the following very detailed definition of international law: “... This is a set of rules of conduct established or sanctioned in international customs, agreements between states, agreements and acts of international organizations that are developed in the process of struggle and cooperation between states and express the coordinated will of the ruling classes in these countries on the basis of mutual advantage. “Compliance with these norms,” continues M. Genowski, “is ensured by the force of public opinion, and, if necessary, by coercion of the UN in relation to states or an individual state. These norms are aimed at regulating international relations, developing progress, peace and solidarity, communication between states, nations and peoples and ensuring the peaceful coexistence of states, regardless of their historical types. Sofia, 1974. S. 14. .

This definition is unnecessarily lengthy and contains a number of controversial provisions. First, it is extremely doubtful that the norms of international law express the concerted will of the ruling classes in the respective country. Secondly, the assertion that observance of the norms of international law is ensured by the power of public opinion is incorrect. Thirdly, not only the UN, but also the states themselves have the right to enforce the norms of international law. Fourthly, the functions of modern international law are reduced not only and not so much to the regulation of international relations, but also to their management.

The educational literature also notes that international law performs a coordinating function in international relations. ed. G. I. Tunkin. M., 1994. S. 11. .

According to D.N. Bakhrakh, social management is always the streamlining of the joint activities of people Bakhrakh D.N. Features of social management // Jurisprudence. 1974. No. 2. S. 19. . International law as a social entity regulates the joint and individual activities of its subjects. International law is a necessary element of the organization of international relations and their management. As F. F. Marten rightly noted back in 1871, “international life exists and does not need to justify its existence; international law determines it, under its protection there is an exchange of all human relations” Marten F. F. On the tasks of modern international law. Introductory lecture given on January 28, 1871 at St. Petersburg University. S. 14.

Thus, public international law can be defined as a system of mandatory norms expressed in sources recognized by the subjects of this law, which are a generally binding criterion of legally permitted and legally prohibited, and through which (norms) international cooperation in the relevant areas is managed or enforcement of the norms of this law is carried out.

The international public law most closely adjoins to the international private law. The expression “private international law” was first used by the American judge J. Storn in 1834. The subjects of both branches are states, international intergovernmental organizations and, in some cases, transnational corporations and even individuals. Sources of international public and private law are international treaties and international legal customs. The basic principles of public international law are the same for private law.

The subject of private international law (PIL) are civil, family and labor relations that go beyond the boundaries of one state. “Civil relations with a foreign (international) element, - rightly notes V. A. Kanashevsky, - can be defined as a kind of relations regulated by civil law, as well as international law, the parties to which are foreign individuals and legal entities, foreign states, international organizations, as well as other civil relations, the regulation of which is associated with recourse to foreign legal systems "Kanashevsksh V. A. On the content of the categories "relationship", complicated by a foreign element, and "applicable law" in private international law / / Journal of Private International Law. 2002. No. 2-3. P. 3. The textbook “Private International Law” (responsible ed. G. K. Dmitrieva. M., 2003) also emphasizes that private international law is closely related to public international law (p. 5). .

The vast majority of PIL norms are created by states or intergovernmental organizations and are enshrined in agreements or unified codes, rules, guidelines, regulations, etc. These norms are implemented, as a rule, through the application of the main provisions of the relevant branches of national law (civil, family, labor, business , procedural, etc.). The identification of PIL with civil or conflict law (and such opinions are expressed in foreign and Russian literature) deprives PIL of the quality of international law and reduces it to a conglomerate of the academic discipline "Civil and commercial law of foreign countries".

The legal nature of PIL is convincingly defined in paragraph 1 of Art. 7 of the UN Vienna Convention on Contracts for the International Sale of Goods of 1980, which states that “when interpreting the Convention, it is necessary to take into account its international character and the need to promote uniformity in its application and observance of good faith in international trade” Private International Law: Sat. documents / comp. K. A. Bekyashev, A. G. Khodakov. M., 1997. S. 201-220. . Thus, the Convention unequivocally proclaims the international nature of the norms contained in it, acting as one of the main sources of modern PIL. Only if it is impossible to resolve the issue on the basis of the prescriptions and principles contained in the Convention itself, should one be guided by “the law applicable by virtue of the rules of private international law”. According to experts, such rules are understood as the relevant conflict of laws rules, referring to the applicable substantive law of the Vienna Convention on Contracts for the International Sale of Goods. A comment. M., 1994. S. 29. .

Not only the name and essence of PIL are debatable, but also its structure. Traditionally, PIL includes rules governing civil, labor, business, family, transport and other legal relations with a foreign element. In our opinion, relations in the monetary, financial, tax and customs spheres are also the subject of legal regulation of PIL, and at this stage in the development of the Russian state, these issues are most significant for the state itself and its subjects. Thus, PIL can be defined as a set of principles and norms governing relations of a private law nature between individuals and legal entities and (or) states, as well as international organizations, in which there is an international or foreign element. We emphasize once again that in terms of their content and legal essence, the issues addressed by PIL are such that their regulation goes beyond the competence of one state. As V. G. Khrabskov correctly notes, not a single state “can independently solve them in full” Khrabskov V. G. International private law in the system of general international law // Jurisprudence. 1982. No. 6. S. 37. .

Recognition of PIL as a combination of only conflict of laws rules inevitably implies the denial of a single international private law for all countries (by analogy with public international law), which contradicts the obvious fact. Proponents of the concept of the conflict nature of PIL identify it with domestic private international law, the existence of which is recognized in many countries, including Russia. Private international law. Modern problems. M., 1993. Book. 1. S. 221. .

International law consists of branches. The branch of law is a set of separate legal norms and legal institutions that regulate a certain area of ​​social relations that have a qualitative originality. As D. I. Feldman notes, a branch of international law could be considered a set of agreed legal norms that regulate more or less autonomously international relations of a certain type, a set characterized by the corresponding subject of legal regulation, qualitative originality, the existence of which is caused by the interests of international communication Feldman D. I. The system of international law. Kazan: Publishing House of Kazan University, 1983. P. 47. .

Although international law is one of the oldest branches of law, nevertheless, there are no generally recognized clear parameters for dividing it into branches. For example, D. B. Levin singled out the following branches of modern international law: 1) the legal status of states as subjects of international law; 2) relations between states on population issues; 3) the relationship of states regarding the state territory and spaces that are not under the sovereignty of states; 4) international maritime law; 5) international air law; 6) international space law; 7) the law of international treaties; 8) diplomatic and consular law; 9) the law of international organizations; 10) the law of international cooperation on special issues; 11) the right to peaceful resolution of disputes; 12) international security law; 13) the law of armed conflict; 14) the right of international responsibility Levin D. B. Main problems of modern international law. M „ 1958. S. 74. .

However, in recent years, a number of industries have emerged that are not included in this list, for example: international economic law, international labor law, international environmental law, international legal fight against terrorism, international procedural law, etc.

According to J. O'Brien (England), the main branches of modern international law are: I) sources of international law; 2) subjects of international law; 3) recognition of states and governments; 4) territory; 5) jurisdiction; 6) sovereign immunity; 7) diplomatic and consular relations; 8) law of treaties; 9) law of international responsibility; 10) maritime law; 11) air and space law; 12) international humanitarian law; 13) international environmental law; 14) succession of states; 15) international economic law; 16) peaceful settlement of disputes between states; 17) international law and the use of force by states; 18) international organizations; 19) the law of armed conflicts.

Sources of international law

This list is also not complete, and the order in which the industries mentioned above are listed is not based on any clear criteria.

A number of Western authors propose to identify branches of international law with branches of domestic law, including, for example, international constitutional law, international administrative law, international commercial law, international corporate law, international antitrust law, international tax law, etc.

International public law, as already noted, does not have any generally recognized, official system of its branches and institutions.

Taking into account the general criteria for building a system of law and taking into account the emergence of new norms and institutions of international law, the Department of International Law of the Moscow State Law Academy believes that modern international law consists of the following main branches: 1) subjects of international law; 2) the basic principles of international law; 3) the law of international treaties; 4) the law of international organizations; 5) international legal means of dispute resolution; 6) responsibility in international law; 7) the right of external relations; 8) international security law; 9) international legal protection of human rights; 10) international criminal law; 11) international economic law; 12) territory in international law; 13) international maritime law; 14) international air law; 15) international space law; 16) international environmental law; 17) international humanitarian law; 18) international cooperation in the scientific and technical field; 19) international legal fight against terrorism; 20) international procedural law Program for the training course "Public International Law" / comp. K. A. Bekyashev, E. G. Moiseev. M., 2002. .

A number of branches of international law are in the process of active formation, for example: international labor law, international agricultural law, international energy law, international transport law, international intellectual property law, international nuclear law, etc.

General provisions. According to the general theory of law, sources of law are understood as a way of fixing legal decrees or a way of expressing "the will of the ruling class erected into law." Consequently, the source of international law is the way of expressing the will of the subjects of international law. The sources reflect the results of the process of creating the norms of international law. As figuratively noted by S. S. Alekseev, the sources of law are the only “place of stay” of legal norms, a reservoir in which legal norms are only found and from where we “scoop” them. Alekseev S. S. Law: ABC, theory, philosophy. Experience of complex research. M., 1999. S. 60-61. .

The sources of international law are given official character, as a rule, in two ways: a) by law-making, when the subjects of international law approve treaties, the content of a rule of law or recommendations of intergovernmental organizations opinio juris; b) by sanctioning, when the subjects of international law approve customary norms, give them legal force.

Sources of international law can be grouped into three groups: main, derivative (secondary) and auxiliary.

According to Art. 38 of the Statute of the International Court of Justice, the first group includes treaties, international legal customs and general principles of law.

Secondary sources include resolutions and decisions of intergovernmental organizations.

Auxiliary sources are judicial decisions, doctrine, and unilateral statements by states made in accordance with international law.

1. Main sources of international law

international treaties. In accordance with sub. "a" paragraph 1 of Art. 38 of the Statute, the International Court of Justice, in deciding disputes submitted to it, applies "international conventions, both general and special, laying down rules expressly recognized by the disputed states."

The Russian doctrine of international law, far from denying the important role of custom, considers the international treaty to be the main means of creating the norms of modern international law. There is a certain turn in the Western doctrine of international law (Sh. Vischer, V. Friedman, A. Ferdross, P, Fisher, etc.) The course of international law. M „ 1989. T. 1. S. 200. .

According to the Vienna Convention on the Law of Treaties of 1969, a treaty means an international agreement concluded between states in writing and governed by international law, regardless of whether such an agreement is contained in one document, in two or more related documents, and also regardless of its specific name.

The source of international public law are only law-forming treaties. As L. Opgtsingheim notes, “usually considered as a source of international law are only treaties providing for new general norms of future international behavior or confirming, defining or repealing existing customary or conventional norms of a general nature” Oppenheim L. International law / trans. from English. M., 1948. Vol. I (semi-volume 1). P. 47. .

The consent of a state to be bound by a treaty is expressed by signing the treaty by a representative of the state if: a) the treaty provides that the signing has such effect; b) the agreement of the states participating in the negotiations that the signature should have such effect is otherwise established; or c) the intention of the states to give such effect to the signature derives from the authority of its representative or was expressed during the negotiations.

At present, in terms of their specific weight, contractual norms occupy the main place in international law.

international custom. According to Art. 38 of the Statute, the International Court of Justice is obliged to decide the disputes submitted to it on the basis of international law and in doing so applies “international custom as evidence of a general practice recognized as law”.

According to F. F. Martens, international customs are those rules and procedures that are established in international relations on the basis of their constant and uniform application to essentially identical cases. As norms of international relations, ordinary beginnings have great practical and legal significance Marten F. F. Modern international law of civilized peoples. M., 1996. T. 1. S. 147. . Signs of international custom are: the continued existence of practice; uniformity, constancy of practice; the universal nature of the practice; belief in the legitimacy and necessity of the corresponding action.

Evidence of the existence of a custom, for example, is diplomatic correspondence, political statements, press releases, opinions of official legal advisers, government commentaries, international and national judicial decisions, declarative provisions of treaties and other international documents, resolutions of the General Assembly and other principal organs of the United Nations. The uniformity of the legislation of individual states is an essential proof of the existence of international custom.

L. Oppenheim noted that "custom is the original source of international law, treaties are the source, the power of which stems from custom" Oppenheim L. Decree. op. S. 51.

Custom cannot be confused with custom. The norms of custom are "obligatory or correct". Habit is also the result of practice, but it is not mandatory. Such, for example, are maritime ceremonials or rules for the handling of ships in seaports.

General principles of law. In sub. "c" paragraph 1 of Art. 38 of the Statute states the following: The Court, which is obliged to decide disputes submitted to it on the basis of international law, applies "the general principles of law recognized by civilized nations."

As L. Oppenheim notes, “the states that adopted the Statute directly recognized the existence of a third source of international law, although purely additional, but independent of custom and treaty.”

General principles of law form the basis of any branch of law. They are the ideological basis for objective law. “Legal rules,” notes Jean-Louis Bergel, “can be formulated and can only be developed with an eye to the general principles of law and with their participation; rules must be consistent with general principles, although they may sometimes deviate from them.” Bergel Jean-Louis. General theory of law / per. from fr. M., 2000. S. 178. 3 Ibid. S. 192. .

General principles of law are diverse in form and content, and in this regard, it is not possible to compile an exhaustive list of them. According to Jean-Louis Bergel (France), “general principles, depending on the specific case, can be guiding or corrective” 3 .

The source of international law is only those general principles of law that are common both to national legal systems and to the system of international law. The existence of general principles peculiar only to national legal systems does not mean that they thereby become general principles of law in international law. “In order to obtain “citizenship rights” in international law,” the Course of International Law rightly notes, “such principles must enter into international law. How? Obviously, by coordinating the wills of states, that is, through an international treaty or international custom. J. O'Brien has a different opinion. In his opinion, subparagraph "c" of paragraph 1 of Article 38 of the Statute "permits the International Court of Justice to apply the principles arising from domestic law or international law, where these principles are enshrined."

The general principles of law, in particular, are the principle of justice, the principle of legality, the principle "contracts must be respected", the principle of trust, the principle of protecting human rights, the principle of sovereignty over natural resources, etc. These principles are enshrined in international treaties, in the legislation of states, and above all in the higher laws (constitutions) of states.

In conclusion, we note that in the literature, the general principles of law are often mixed with the basic principles of international law and an equal sign is put between them International law / ed. D. B. Levin and G. P. Kalyuzhnaya. M., 1960. S. 31-32. . Of course, some principles may superficially coincide (for example, the principle of protecting human rights). However, general principles of law have universal application.

2. Derivative sources of international law

Resolutions of international organizations. International law is not

contains provisions preventing states from granting international organizations the right to issue binding regulations for them. For example, the UN Security Council has such competence. According to Art. 25 of the Charter, the members of the UN agree, in accordance with its Charter, to obey and carry out the decisions of the Security Council.

Resolutions of international organizations are a new source of international law. Almost all intergovernmental organizations have bodies that adopt resolutions that are binding on member states. These resolutions concern the internal life of the organization. However, there are a considerable number of organizations that approve technical rules and standards, which, under certain conditions, become mandatory for member states. These include, for example, the International Civil Aviation Organization (ICAO), the International Maritime Organization (IMO), the International Telecommunication Union (ITU), the World Meteorological Organization (WMO) and others. These organizations have a principle of tacit adoption of resolutions, especially those that contain technical regulations Moravetsky V. Functions of an international organization / transl. from Polish. M, 1976. S. 147-172. .

Many scholars and international lawyers believe that some resolutions of the UN General Assembly are legally binding. However, they are not listed in Art. 38 of the Statute of the International Court of Justice. According to the UN Charter, the decisions of the General Assembly are advisory in nature (Article 11). At the same time, a number of resolutions of the UN General Assembly specify the norms of international law and even contain new norms. For example, the UN General Assembly at its XXV session on December 17, 1970 approved the Declaration of Principles Governing the Regime of the Sea and Ocean Bed and its Subsoil beyond the Limits of National Jurisdiction. In it, for the first time in international practice, the resources of the seas and oceans beyond the limits of national jurisdiction were proclaimed the “common heritage of mankind” and it was established that “no state or person, natural or legal, will claim rights, exercise or acquire rights in relation to this area or its resources incompatible with the international regime to be established and with the principles of this Declaration.” Subsequently, this rule was developed and specified in the 1982 UN Convention on the Law of the Sea.

The UN General Assembly at its XV session in 1960 adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, which contains normative elements. The Declaration was qualified by the International Court of Justice in the 1971 Advisory Opinion on Namibia as an important part of customary law.

When the UN General Assembly adopted in 1963 the Declaration on Legal Principles Regulating the Activities of States in the Exploration and Use of Outer Space, the representatives of the USSR and the USA declared that they would follow the provisions of this Declaration. In their opinion, it reflects international law as recognized by the members of the United Nations. Subsequently, on the basis of this Declaration, the Outer Space Treaty of 1967 was developed.

3. Auxiliary sources of international law

Judicial decisions. IN sub. "d" p. I Art. 38 of the Statute states that

The Court, which is obliged to decide the disputes submitted to it on the basis of international law, applies “the reservation specified in Art. 59, judgments as an aid to the determination of legal norms". It follows from the text of this subparagraph that, firstly, we are talking about judicial decisions of the International Court of Justice itself, since, in accordance with Art. 59 of the Statute, the decisions of the Court are binding only on the parties involved in the case; secondly, the decision of the Court should not change or supplement existing international law, it is only an auxiliary means for determining legal norms.

F. F. Marten at the end of the 19th century. positively assessed the importance of jurisprudence for public international law. True, he had in mind not international courts, but "civil and criminal courts of civilized states." He further noted that “some special courts established in the state have a directly international character. Such are the prize courts, which are established by a belligerent state to deal with cases of seizures of property of citizens of enemy and neutral states (about prizes) and which are guided not by local domestic laws, but by international law. Collections of decisions of such courts provide rich material on all issues of international law, both war and peace ”Marten F. F. Decree. op. 1996. S. 150-151. . R. Higgins unconditionally considers the decisions of courts (both international and domestic) as a source of international law. According to I.P. Blishchenko, “decisions of domestic courts can also be attributed to indirect sources of international law” Blishchenko I.P. Conventional weapons and international law. M., 1984. S. 81. .

It should be noted that the source of international law is not only the decisions of the International Court of Justice, but also the decisions of other international and regional courts (for example, the International Criminal Court of the United Nations, the European Court of Human Rights), as well as, in a sense, the decisions of national courts. For example, in June 2003 the European Court of Human Rights ordered the Government of the Russian Federation to pay Tamara Rakevich 3,000 euros as compensation for non-pecuniary damage, since the provisions of Art. 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. She was forcibly taken to a psychiatric hospital and began to receive treatment. This article of the Convention establishes that the grounds provided for by law or the Convention are necessary for the restriction of a person's freedom, and that the issue of depriving or restricting a person's freedom must be immediately decided by the court. Since the Russian Federation is a party to the 1950 Convention, the execution of the decision in Strasbourg entailed amendments to the Law “On Psychiatric Care and Guarantees of the Rights of Citizens in its Provision” of 1992. It must be brought into line with the requirements of the 1950 Convention. Amendment to the Law of 1992 should provide citizens with the right to independently appeal against the illegality of hospitalization Poroshina T. Russia lost to Tamara Nikolaevna: the Strasbourg court obligated the Russian Federation to amend the legislation in favor of the person // Rossiyskaya Gazeta. 2003. 4 Nov. . Let's take another example.

In its 1952 Judgment in the Rights of US Citizens in Morocco, the International Court of Justice found that the US consular jurisdiction in Morocco was limited to disputes between US citizens and that, accordingly, the jurisdiction of the Moroccan courts was limited only within those limits. Subsequently, the courts of Morocco, in determining their jurisdiction, referred to the decision of the International Court of Justice and rejected objections to their competence that were not consistent with the decision of the International Court of Justice.

Doctrine of the most qualified specialists. In accordance with sub. "d" paragraph 1 of Art. 38 of the Statute, the International Court of Justice, in deciding disputes submitted to it, applies "the doctrines of the most qualified specialists in public law of various nations as an auxiliary means for determining legal rules."

According to F. F. Martens, “the history and science of international law serve as a means of clarifying the true meaning of existing treatises and international customs; they make it possible to present in a pure form the legal consciousness of peoples, expressed in treatises and customary norms, and therefore undoubtedly belong to the number of sources of international law” Lukashuk II International law in the courts of states. SPb., 1993. S. 208. . However, the doctrine is classified by the Statute of the International Court of Justice as an auxiliary source of international law.

In judicial decisions, L. Oppenheim believed, the use of the doctrine is allowed only as evidence of the existence of law, and not as a law-making factor. He believed that the works of scientists will continue to play some role in the decision-making by the courts, including in the field of international law Oppenheim L. Decree. op. S. 52. .

The international reputation was won by the works of many Russian international scientists of the 20th and early 21st centuries: I. P. Blishchenko, R. L. Bobrov, V. N. Durdenevsky, G. V. Ignatenko, S. B. Krylov,

A.L. Kolodkina, Yu.M. Kolosov, M.I. Lazareva, D.B. Levin,
I. I. Lukashuk, S. A. Malinina, S. V. Molodtsova, L. A. Modzhoryan,
G. I. Tunkina, E. T. Usenko, N. A. Ushakova, D. I. Feldman,

Unilateral acts of states. This type of source of international law is not provided for in Art. 38 of the Statute of the International Court of Justice. As the English professor A. Cassis notes, not all unilateral acts contain binding rules of conduct. Such, for example, are unilateral declarations containing a protest against the actions of a state. The sources of international law include a statement on the recognition of states or governments, information (notification) of the relevant states in the event of a military blockade during a war, etc.

Lawmaking in international law

The concept of international legal norm. The general theory of law determines the formal legal features of a legal norm. Among them: a) direct connection of the rules of law with the state (issued or sanctioned by the state); b) their expression of the state will; c) the universal and representative-binding nature of legal norms; d) strict formal certainty of the prescriptions contained in the rules of law; e) repeated application and duration of legal norms; f) their strict subordination and hierarchy; g) protection of the rule of law by the state; h) the use of state coercion in case of violation of the orders contained in the norms of law Marchenko MN Theory of state and law. M., 2004. S. 569-570. . These signs, mutatis mutandis, are also inherent in the norms of international law.

Any international legal norm is legally binding, violation of it entails various kinds of sanctions. The norm of international law acts as a kind of measure of equal scale used in assessing the behavior of the subjects of this law. It is a criterion for determining the correctness or incorrectness of the actions of various subjects of international law.

The degree of generalization of the norms of international law is different. The most general are the norms contained in the UN Charter. It enshrines seven universally recognized principles of international law (for example, the principles of equal rights and self-determination of peoples, the sovereign equality of states, and the peaceful settlement of disputes). If any norm of international law contradicts the UN Charter, then it is declared null and void, and the subjects of international law cannot be guided by it.

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The concept of the subject of international law

Definition 1

The subject of international law is a samba of a set of norms of an international legal nature that independently regulate various branches of law, including in the field of international relations and domestic relations.

Speaking about the role of international law in the modern world, it should be noted that it is constantly growing. This is due to the fact that a number of problems and processes are constantly repeated, and the state is not able to resolve, regulate them with the help of domestic law on the territory of one state.

Remark 1

At the same time, the field of international law acts as one of the most complex branches of law, far from being always covered in legal theory. In this area, there are many problems and contradictions, as well as gaps that require regulation either through the adoption of new regulations or through the development of international legal principles. Some problems in this area receive a very ambiguous interpretation, which is primarily due to the fact that international law has a close relationship with international politics. Such a position only complicates the situation in this area.

Separate features of this branch of law are manifested in the scope of international law, which regulates a wide range of legal relations, including between states acting as subjects of international law. The customs of international law, the peculiarities of the relations of subjects, sources, as well as the specifics of the legal regulation of public relations in this area have certain features.

International law is very different from domestic law, which is primarily due to the specifics of the subject matter of international law. It is aimed at regulating relations between several sovereign states, that is, between two or more states.

Thus, the subject of international law is understood as the specificity of the legal regulation of the industry, that is, the totality of international relations that develop between various subjects of international law, for example, states, organizations, peoples, and so on.

The subject of international law is a very broad concept, since the scope of international legal relations very broadly covers various areas, for example, the following:

  • political;
  • economic;
  • legal;
  • cultural, etc.

From this we can conclude that the interaction between states is carried out in a variety of areas, and not only those related to the economic and political development of states, but also cultural, environmental, and other areas.

Method of international law

The method of international law is understood as a special way of influencing a given branch of law on the subject of their regulation. Just like in other branches of law, two main methods of regulation are applied here:

  • dispositive;
  • imperative.

The first method means on the specifics of such legal regulation, in which any requirements are advisory in nature, that is, legal regulation is based on the legal consciousness of the subjects of law. In the imperative method, the powers of the subjects of law, for example, international organizations, are applied, in which subjects of law are obliged to fulfill all the requirements that are put forward in relation to them. Accordingly, any subjects of law have rights and obligations, that is, they have legal capacity, legal capacity, and also have tortiousness, that is, the ability to answer for the offenses committed.

The specifics of the methods of international law

Despite the presence of various methods of legal regulation, international law acts as an independent and integral legal system. At the same time, based on the norms of the Constitution of the Russian Federation, the generally recognized principles and norms of international law and international treaties act only as an integral part of the legal system of Russia, while, having priority over national legislation, international norms do not have priority over the norms Constitution. However, even this situation generates significant discussions in the field of international law.

Mastering the methods of international law makes it possible to fulfill various tasks facing the world community today. Namely:

  • ensure the equality of all subjects of international law, especially states;
  • settlement of conflicts by any peaceful means, in order to prevent the creation of a military situation;
  • resolution of global problems that face humanity today, including in the environmental sphere, in the political sphere, in the economic sphere, and so on.

Remark 2

It is also necessary to take into account the need to protect the rights and freedoms of man and citizen on the territory of all states. If a violation by the state of the rights and freedoms of a person and a citizen is revealed, despite the fact that the violation occurs within the state, it must be held responsible for the deed, and the violated rights and freedoms must be restored without fail.

The use of imperative and dispositive methods also makes it possible to form legal documents in this area, which would be both mandatory and recommendatory in nature. Speaking about the sphere of international law, it should be noted that the main documents here are advisory in nature. International documents acquire a binding character if they are signed by states and ratified in the prescribed form. Then sanctions follow for their violation.

The implementation of sanctions is carried out by the relevant authorized bodies, which must ensure the enforceability of international documents and are often fixed in them. The main method of resolving all conflicts is their peaceful resolution. However, in the event of a massive violation of the rights and freedoms of man and citizen, genocide, the threat of using weapons of mass destruction, military forces can be used.

As a special system of law, MP is distinguished by its own subject of regulation. Relations that are the subject of international legal regulation, but the subject composition can be divided into interstate and non-interstate.

to international interstate relationships include:

  • 1) between states (for example, relations to reduce the armed forces);
  • 2) between states and nations fighting for independence (for example, the provision of assistance by states to the people to gain independence).

The norms of international relations are directed, first of all, to the regulation of relations between the main subjects of international relations - states. Strictly speaking, the MP took shape and developed (until very recently) exclusively as an interstate one.

As for the relations between states and nations fighting for independence, we note that the struggling nations are, as it were, "pre-states", and relations with them, in essence, are relations with states that are in the process of formation.

However, the MP also regulates relations of a non-interstate nature - i.e. relations in which the state is only one of the participants or does not participate at all. At present, the circle of participants in international communication has expanded enormously and many relations (for example, the fight against crime) have moved from the category of "cases within the internal competence of the state" to the sphere of "common interests of states."

International non-interstate relations are:

  • 1) between states and international organizations, as well as state-like entities (for example, Interpol's relations with member states);
  • 2) between international organizations (for example, relations between the WTO and the EU);
  • 3) between states, international organizations, on the one hand, and individuals and legal entities, on the other (service in UN agencies, representation of entrepreneurs in ILO bodies, etc.);
  • 4) between individuals and legal entities (international sale of goods, labor relations with migrants, marriage and family relations with foreign citizens, etc.).

Sometimes the subject of regulation of international legal and domestic norms coincides. For example, the issues of ensuring and protecting human rights are subject to both international legal and domestic norms. In this case, we can talk about the complex (most often joint) regulation of certain legal relations by the norms of both systems of law. The set of norms of international law and national law that regulate specific relations is called the law enforcement complex.

Given the above, international law can be defined as a special system of law - a set of international legal norms created by the subjects of international law and regulating relations between states, nations fighting for their independence, international organizations, state-like entities, relations with the participation of individuals and legal entities, other entities.

Functions of international law

The functions of the MT should be understood as the main directions of the influence of the MT on relations that are the subject of international legal regulation.

It must be said that the functions of the MP are diverse and depend not only on the object of international legal influence, but also on the achieved level of international legal regulation of certain spheres of relations.

The main social purpose of international relations is the organization of international relations that meets the current level of human civilization. The result of the action of MP is the emergence, ordering, termination or reduction of certain relationships.

The actual legal functions of the MP can be considered stabilizing, regulatory and protective functions.

Stabilizing The function of the MT is that the MT is called upon to organize the world community, to establish a certain international legal order, to strive to strengthen it, to make it more stable. Recently, this function has become increasingly important in connection with the change in the balance of power in the international arena and the US attempt to "remake the world according to itself."

The second function of the MP is regulatory function. Establishing the international legal order and regulating public relations, the norms of international law endow participants in international relations with certain rights and obligations.

Protective function is to ensure proper protection of international legal relations. In case of violation of international obligations, the subjects of international legal relations have the right to use the measures of responsibility and sanctions allowed by the IL.



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