Contents of Article 38 of the Statute of the International Court of Justice. International Court

international court of justice(one of the six main organs of the United Nations, established by the UN Charter to achieve one of the main purposes of the UN “to carry out by peaceful means, in accordance with the principles of justice and international law, the settlement or resolution of international disputes or situations which may lead to a breach of the peace.”

The court, which is obliged to resolve disputes submitted to it on the basis of international law, applies:

It is generally accepted that the sources of modern international law are listed in paragraph 1 of Article 38 of the Statute of the International Court of Justice, which reads:

In addition to its judicial function, the International Court of Justice has an advisory function. According to Article 96 of the UN Charter, the General Assembly or the Security Council may request advisory opinions from the International Court of Justice on any legal matter. In addition, other UN bodies and specialized institutions which the General Assembly may at any time authorize to do so, may also request advisory opinions of the Court. Sources of law applied by the Court

d) subject to the reservation specified in Article 59, the judgments and doctrines of the best qualified experts in the public law of the various nations as an aid to the determination of rules of law.

The Court operates in accordance with the Statute, which is part of the UN Charter, and its Rules of Procedure.

Statute of the International Court of Justice and sources of international law.

on legal issues arising within their scope of activity.

Article 38 of the UN Court of Justice Statute

The average duration of a case in court is approximately 4 years.

To be elected, a candidate must receive an absolute majority of votes in both bodies. To ensure continuity within the Court, the terms of office of the 15 judges do not all expire at the same time. Every three years elections are held for one third of the members of the Court.

The Court has a dual function: deciding, in accordance with international law, legal disputes submitted to it by States, and issuing advisory opinions on legal questions. According to Article 96 of the UN Charter, the UN General Assembly or the UN Security Council may request advisory opinions from the International Court of Justice on any legal matter.

The International Court of Justice is composed of 15 independent judges, selected regardless of their nationality, from among persons of high moral character who meet the requirements in their countries for appointment to senior judicial positions or are jurists of recognized authority in the field of international law.

3. Egorov A.A. Recognition and execution of court decisions of the countries participating in the Minsk Convention of the CIS // Legislation and Economics. 1998. No. 12 (178).

1. Danilenko G.M. Custom in modern international law. M.. Science, 1988.

2. Vinnikova R.V. Implementation of international law in the arbitration process of the Russian Federation: Author's abstract. . Ph.D. legal Sci. Kazan, 2003.

In general, the problem of customary rules of international law is one of the most difficult theoretical problems of international law. That is why the question of customary rules of international law has been the subject of constant attention of specialists for centuries.

Give 2 - 3 examples of international customs and establish the fact of their recognition Russian Federation, using, whenever possible, the practice of states or any indirect signs confirming it: foreign policy documents, government statements, diplomatic correspondence, a description of a customary rule in national legislation, certain actions indicating the existence of requirements in connection with; non-compliance with a custom, lack of protests against actions that constitute a custom.

What international custom - universal or local - are we talking about in this case? Can a custom consist of a set of international norms? What is meant by proof of the existence of a custom?

II. In January 2002, the Arbitration Court of the Tyumen Region received court documents and a petition from the Economic Court of the Mogilev Region (Republic of Belarus) to recognize and authorize the forced execution in Russia of the decision of this court to collect sums of money to the budget of the Republic of Belarus from a closed joint-stock company located in Tyumen. Among the documents to the Russian arbitration court was presented writ of execution the court that made the relevant decision.

2) sanctioning by the state of such practice, namely: the rules of conduct arising on its basis.

III. Make 5 test tasks(10 questions each), covering all topics of the International Law course. As applications, provide the correct answer options for your tests.

Treaty and custom are universal sources whose legal force derives from general international law; law-making decisions of organizations is a special source, the legal force of which is determined constituent act relevant organization.

Click to register. The work will be added to your personal account.

5. These salaries, allowances and remuneration shall be determined by the General Assembly. They cannot be reduced during their service life.

3. He shall also notify the Members of the United Nations, through Secretary General, as well as other states having the right of access to the Court.

1. Minutes are kept of each court hearing, signed by the Secretary and the Chairman.

3. The above statements may be unconditional, or on conditions of reciprocity on the part of certain states, or for a certain time.

International Court of Justice

1. Official languages The ships are French and English. If the parties agree to conduct the case on French, the decision is made in French. If the parties agree to conduct the case on English, the decision is made in English.

6. The salary of the Registrar of the Court is established by the General Assembly on the proposal of the Court.

The Chambers provided for in Articles 26 and 29 may, with the consent of the parties, sit and exercise their functions in places other than The Hague.

Having received evidence within the prescribed time limits, the Court may refuse to accept any further oral or written evidence that either party may wish to present without the consent of the other.

6. Judges elected as provided in paragraphs 2, 3 and 4 of this article must satisfy the conditions required by article 2 and paragraph 2 of article 17 and articles 20 and 24 of this Statute. They participate in decision-making on equal terms with their colleagues.

3. The court is obliged, at the request of any party, to grant it the right to use a language other than French and English.

In carrying out its advisory functions, the Court, in addition to the above, shall be guided by the provisions of this Statute relating to controversial cases, to the extent that the Court recognizes them as applicable.

1. For the service of all notices to persons other than representatives, attorneys and lawyers, the Court shall apply directly to the government of the state in whose territory the notice is to be served.

International Court of Justice The UN also considered cases related to the jurisdiction of states, i.e. cases related to the exercise by the state of its power in relation to foreign citizens on its territory or over its citizens on the territory of a foreign state. They usually relate to issues of nationality, the right to asylum or immunity.

Since the beginning of its existence, the Court has considered more than a dozen cases on the protection of private and commercial interests. In the 50s, Liechtenstein made a claim to Guatemala on behalf of Friedrich Nottebohm, former citizen Germany, who in 1939 received Liechtenstein citizenship.

Throughout its history, the Court has experienced periods of vigorous activity and relative inactivity. Since 1985, the number of cases brought before the Court has increased, with more than a dozen cases on its docket each year (this number increased sharply to 25 in 1999). This figure may seem modest, but it should be remembered that since the number of potential litigants is much smaller than in national courts (only about 210 states and international organizations have access to the Court), the number of cases is naturally small compared to the number of cases heard by national courts.

Repetition of actions presupposes the duration of their completion. But international law does not establish what period is necessary for the formation of a custom. At modern means transport and communications, states can quickly learn about each other’s actions and, reacting to them accordingly, choose one or another mode of behavior. This has led to the fact that the time factor no longer plays, as before, an important role in the process of the birth of a custom.

In addition, the Court has delimited continental shelves on several occasions, for example in the following cases: Tunisia/Libya and Libya/Malta (Continental Shelf, 1982 and 1985); Canada/United States (Maritime Delimitation of the Gulf of Maine, 1984); and Denmark v. Norway (Maritime Delimitation between Greenland and Jaan Mayen, 1993).

In 1992, another Chamber constituted by the Court put an end to a 90-year dispute between El Salvador and Honduras over land and maritime boundaries and boundaries between islands. In 1969, tensions over the dispute were so intense that a soccer match between the two countries' teams in the World Cup led to a short but bloody "football war."

International Court of Justice

The International Court of Justice in its practice was not limited to stating the existence of customs, but gave them more or less clear formulations. As an example, we can cite the decision of the International Court of Justice on the Anglo-Norwegian fisheries dispute of 1951, containing, in particular, the definition of a customary rule, in accordance with which coastal states could use as a baseline for measuring the width territorial waters Use straight lines too.

Ancillary means for determining the existence of a custom are unilateral actions and acts of states. They can act as evidence of recognition of a particular rule of behavior as a custom. Such unilateral actions and acts include internal legislative and other regulations. International judiciary to confirm the existence of a customary rule, references are often made to national legislation.

In some cases, judicial decisions may give rise to a customary rule of international law.

· general principles rights recognized by civilized nations;

In the practice of the court, there were also cases concerning the intervention of one state in the affairs of another, and the use of force.

The International Court of Justice's docket has grown significantly over lately. The year 1992 was a record year in this regard: 13 cases were registered.

These acts must meet the requirements of normative formation.

Along with the above sources of international law, there is the concept of “soft law”, which includes acts of a recommendatory nature or policy guidelines of international bodies and organizations, primarily this applies to acts (resolutions) General Assembly UN.

Article 38 of the Statute of the International Court of Justice contains a list of sources of international law on the basis of which the Court must resolve disputes. These include:

international conventions, both general and special, laying down rules expressly recognized by the disputing states;
international custom as evidence of a general practice recognized as a legal norm;
general principles of law recognized by civilized nations;
the judgments and doctrines of the best qualified experts in the public law of various nations, as an aid to the determination of rules of law.

An international treaty is an agreement between states or other subjects of international law, concluded in writing, containing the mutual rights and obligations of the parties, regardless of whether they are contained in one or more documents, and regardless of its specific name.

International custom is evidence of a general practice recognized as a legal norm (Article 38 of the Statute of the International Court of Justice). International custom becomes a source of law as a result of long-term repetition, i.e. sustainable practice is the traditional basis for recognizing custom as a source of law. It is possible for a custom to become established in a short period of time.

The acts of international conferences include a treaty as a result of the activities of a conference created specifically for the development of an international treaty of states, which is ratified and put into effect.

Acts of international organizations include acts of the UN General Assembly.

Introduction 3

1. The concept of sources of international law 4

2. Types and correlation of sources of private international law 8

2.2 International treaties 17

2.3 Judicial precedents 19

2.4 Legal customs and practices as regulators of relations in the field of private international law 22

Conclusion 26

References 27

Introduction

Currently, the sources of law in the legal-technical sense in the general theory of law are usually understood as a set of forms and means of external expression and consolidation of legal norms. In other words, these are the ones national laws, subordinate regulatory legal documents, international treaties and acts of unwritten law that contain rules governing international non-interstate non-power relations.

If we summarize all the opinions that have been and are being expressed today in the literature on private international law regarding the types of sources of international private law, then their list should include:

Domestic legislation of states;

International treaties;

Judicial precedents;

International and domestic legal customs and business customs;

Legal doctrine;

Law created by the participants in public relations themselves.

However, in our opinion, not all of the categories listed above can really be classified as sources of private international law. Therefore, without going into details of the characteristics of their content, let us first dwell on the analysis of the essential basis and ability of these entities to directly regulate non-power relations in the international sphere by legal means.

The purpose of the work is to study the sources of private international law.

The objectives of the work are to characterize the concept as a source of international law;

1. The concept of sources of international law

The term “sources of law” is used in two meanings - material and formal. Material sources refer to the material conditions of society. Formal sources of law are those forms in which the rules of law find their expression. Only formal sources of law are a legal category and form the subject of study of legal sciences, including international law. The sources of international law can also be understood as the results of the process of rule formation.

Article 38 of the Statute of the International Court of Justice contains a list of sources of international law on the basis of which the Court must resolve disputes submitted to it. These include:

a) international conventions, both general and special, laying down rules expressly recognized by the disputing States;

b) international custom as evidence of a general practice accepted as law;

c) the general principles of law recognized by civilized nations;

d) the judgments and doctrines of the best qualified experts in the public law of various nations, as an aid to the determination of rules of law.

General international conventions are understood as treaties in which all states participate or may participate and which contain rules that are binding on the entire international community, that is, rules of general international law. Special agreements include agreements with a limited number of participants, for which the provisions of these agreements are mandatory.

An international custom, constituting a norm of international law, can become such a rule of behavior of subjects of international law, which was formed as a result of repeated homogeneous actions and is recognized as a legal norm.

Repetition of actions presupposes the duration of their completion. But international law does not establish what period is necessary for the formation of a custom. With modern means of transport and communication, states can quickly learn about each other’s actions and, reacting accordingly, choose one or another course of behavior. This has led to the fact that the time factor no longer plays, as before, an important role in the process of the birth of a custom.

Decisions of international organizations expressing the agreed positions of states can be the starting point for the formation of a custom.

With the emergence of a rule of behavior, the process of formation of a custom does not end. Only recognition by states as a legal norm turns this or that rule of behavior of states into custom.

Conventional norms have the same legal force, as contractual norms.

Qualifying a rule of conduct as a custom is a complex issue. Unlike contractual norms, custom is not formalized by any single act in writing. Therefore, to establish the existence of a custom, auxiliary means are used: judicial decisions and doctrines, decisions of international organizations and unilateral acts and actions of states.

Judicial decisions that are ancillary means include decisions of the International Court of Justice and other international judicial and arbitration bodies. When submitting a dispute to the International Court of Justice or other international judicial bodies, states often ask them to establish the existence of a customary rule binding on the disputing parties.

The International Court of Justice in its practice did not limit itself to stating the existence of customs, but gave them more or less clear formulations. As an example, we can cite the decision of the International Court of Justice on the Anglo-Norwegian fisheries dispute of 1951, which contained, in particular, the definition of a customary rule, according to which coastal states could use straight lines as a baseline for measuring the width of territorial waters.

In some cases, judicial decisions may give rise to a customary rule of international law.

In the past, the works of eminent scholars of international law have often been considered as sources of international law. At present, it is also impossible to exclude the importance of the doctrine of international law, which in some cases helps to clarify certain international legal provisions, as well as the international legal positions of states. In particular, disputing parties sometimes use the opinions of experts on various issues of international law in their documents submitted to international judicial bodies 1 .

Ancillary means for determining the existence of a custom are unilateral actions and acts of states. They can act as evidence of recognition of a particular rule of behavior as a custom. Such unilateral actions and acts include internal legislation and other regulations. International judicial bodies often resort to references to national legislation to confirm the existence of a customary rule.

Official statements by heads of state and government, other representatives, including international bodies, as well as delegations to international conferences can also serve as such evidence.

Joint statements of states (for example, communiques following negotiations) can be considered an auxiliary means for determining custom.

Despite the intensive process of codification of international law, the importance of custom in international life remains. The same ones international relations may be regulated for some states by treaty norms, and for others - by customary norms 2 .

Article 38 of the Statute of the International Court of Justice contains a list of sources of international law on the basis of which the Court must resolve disputes submitted to it. These include:

a) international conventions, both general and special, laying down rules expressly recognized by the disputing States;

b) international custom as evidence of a general practice accepted as law

c) the general principles of law recognized by civilized nations;

d) the judgments and doctrines of the best qualified experts in the public law of various nations, as an aid to the determination of rules of law.

Sources of MP

Definition. Sources represent the forms of existence of international legal forms. Where the norms of MP are fixed

Article 38 of the Statute of the International Court of Justice of the United Nations contains a list of the main sources of MP.

Only 4 points:

1) The sources are international conventions, both general and special, establishing rules definitely recognized by the singing states - a model of behavior. In the first place is an international treaty, the second is international customs, as evidence of general practice, recognized as a legal norm; general principles of law recognized by civilized nations (all our nations are civilized); court decisions and doctrines of the most qualified specialists in MP (provided as an auxiliary tool)

An international treaty is characterized as an international source due to 3 points:

1) Clearly written document, clearly interpret this document

2) Covers as wide a range of issues as possible in all areas - pushing out custom, makes it easier to understand and implement

3) It is the treaty that is a weighty and significant means for coordinating wars

International custom applies in cases where circumstances are not provided for in contracts. All parties comply with it voluntarily. The rules of politeness - greeting ships at sea - are not written down anywhere from customs. International custom may be identical to the norm of an international treaty - issues of aggression, torture, discrimination

general Principles of law - goes back to Roman law - a special rule cancels the general one; the subsequent rule cancels the previous one; no one can transfer to another more rights than he himself has; let the other side be heard too.

Court decisions – aid. An example is the European Court of Human Rights; international criminal court; Permanent Chamber of the Third Court of Justice of the United Nations. Between the Court is not authorized to introduce number of changes in MP, the decision is binding on the parties specific case for specific parties – Article 38 of the statute, for all others this decision can be used as an auxiliary tool, there is no precedent. Interpretation by lawyers - we're talking about purely about interpretation - the parties must understand what the document says.

8. Decisions of international organizations and conferences. "Soft law".

Not in Article 38. There is another statute - soft law - mainly decisions of the UN General Assembly. An example is the Universal Declaration of Human Rights and Freedoms, the Prague Charter for a New Europe. The documents are not mandatory and are of an auxiliary nature.

Unilateral acts of the state - a unilateral source

International law as special system rights. System of modern international law.

Public international law is a special deeply structured system of law that regulates relations between subjects regarding their mutual legal proximity.

MP (Bekyashev)- is a system of international treaty and customary norms created by states and other subjects of international law, aimed at maintaining peace and strengthening international security, establishment and development of comprehensive international cooperation, which are ensured by the conscientious fulfillment by subjects of international law of their international obligations, and, if necessary, coercion, carried out by states individually or collectively in accordance with the current rules of international law.

Features and specificity of international law:

1) special item legal regulation- international law governs public relations that go beyond both the internal competence and the territorial boundaries of states.

2) special subjects of international law, which are mainly the state, nations and peoples fighting for freedom, independence and the creation of their own statehood. Individuals and legal entities themselves are not independent subjects of international law! international intergovernmental organizations, government similar formations(state-like entities - example, the Vatican).

These are those participants in international relations who have international rights and obligations and who exercise them in accordance with international law.

3) Special objects of international law - everything about which the subjects entered into certain relationships. Object - international or interstate relations that do not fall within the exclusively internal competence of the state and go beyond the state territory of each specific state.

4) A special procedure for the formation of norms - norms of international law are created directly by the subjects of international law themselves, but first of all by states, this happens through the free coordination of wills sovereign states and the expression of this agreed will in international treaties concluded between them. States have the right to make reservations regarding norms of individual articles of the treaty that are unacceptable to them, or in general the state has the right to refuse to participate in an international treaty.

5) A special procedure for coercion to comply with the norms of international law - coercion of subjects of international law carried out by the subjects of international law themselves on the basis of existing international legal norms. Application of international legal sanctions to violators of international law (typical of the activities of international organizations - the UN, the UN Security Council).

6) Special sources MP: international treaties and international customs.

MP system - a set of international norms, institutions and branches of small business, taken in their unity and interdependence. The core of the MP system is the imperative norms embodied in the basic principles of MP. MP industry - a set of customary legal norms codified in an international treaty that regulate the relations of the subjects of international cooperation in one broad area of their international cooperation (law international treaties, law of external relations, law of international organizations, law of international security, international environmental law, international humanitarian law, international maritime law, international space law). Institute of Law is a set of international legal norms relating to the relations of the subjects of international law on any specific object of legal regulation or establishing the international legal status or regime of use of any region, sphere, space or other object (the institution of diplomatic missions and privileges). Among the problems of systematizing MP is the problem of determining the sectoral “registration” of several groups of norms regulating the regime of certain territories (spaces). For example, issues of the legal status of state territory, including areas with a special regime, and the legal status of Antarctica “fell out” of the sectoral classification.

MP functions:

1) protective - resolution of international disputes, etc.

2) regulatory

3) coordination (management) function - aimed at coordinating interstate cooperation, management international activities state-in.

The international system (in a broad sense) is a set that includes:

1) a wide variety of subjects international system or actors of the international system (actors)

2) relations between numerous subjects of the international system (political, social, etc.).

3) totality legal systems, incl. national within which relations between subjects of the international system are carried out

The narrow meaning is a totality, which includes:

1) the subjects of the MP are precisely those in power - the state, international organizations, etc.

2) international relations, i.e. relations between the subjects of small business

3) public international law itself, within the framework of which the subjects of small business operate

The international regulatory system includes:

1) MP itself

2) political norms - existing in declarations, joint statements, resolutions of international meetings, resolutions of international meetings, communiqués. These norms represent the agreed will of the state, but do not have binding legal force.

3) norms of international “soft law” (softlaw) - containing in the resolutions of international organizations, certain agreed upon agreements, agreed upon provisions, but which do not have binding legal force, but in relation to the participants of this inter-organization, the CTR expressed a desire to be bound by such norms - they must follow these standards.

2.Sources of modern international law: treaty, custom, general principles of law. The process of creating norms of modern international law. Auxiliary sources.

All sources within the MP are usually combined into 3 groups:

1) main sources: international treaties, international customs and general principles of law

2) derivative or secondary sources: resolutions and decisions of international organizations

3) auxiliary sources: court decisions, the doctrine of the most qualified specialists, unilateral statements by the state.

Art. 38 of the Statute of the International Court of Justice - indicative list of sources

1. Main sources:

1) international agreement - in accordance with paragraphs. and paragraph 1 of Article 38 of the Statute is an international court, which, when resolving disputes referred to it, applies international conventions, both general and special, establishing rules definitely recognized by the disputing states. According to the Vienna Convention on the Law of Treaties of 1969, a treaty means international agreement, concluded between states in writing and governed by international law, regardless of whether such an agreement is contained in one document, in 2 or several interconnected documents, and also regardless of its specific name. International dogs are given great value, it is believed that this is not an ideal regulatory tool, because The process of agreement between agreements is very long, and the relationship is quite dynamic.

Classification of international treaties