International economic law regulates relations between. International economic law (IEP): concept, subject, system
Concept and subjects of international economic law. International economic law is a branch of international law, the principles and norms of which regulate interstate economic relations.
Modern international economic relations are a highly developed complex system that unites types of social relations that are heterogeneous in content (in object) and in subjects, but closely interact with each other. The unprecedented growth in the importance of international economic relations for each country is explained by objective reasons. The trend towards the internationalization of public life has reached a global scale, covering all countries and all major spheres of social life, including the economic one.
An essential specific feature of international economic relations is the unification into a single system of relations that differ in their subject structure, stipulating the use of various methods and means of legal regulation. There are two levels of relations: firstly, relations between states and other subjects of international law (in particular, between states and international organizations) of a universal, regional, local nature; secondly, the relationship between physical and legal entities different states (this also includes the so-called diagonal relations - between the state and individuals or legal entities belonging to a foreign state).
International economic law regulates only first-level relations - interstate economic relations. States establish the legal basis for the implementation of international economic relations and their general regime. The bulk of international economic relations are carried out at the second level: by individuals and legal entities, therefore the regulation of these relations is of paramount importance. They are regulated by the national law of each state. A special role belongs to such a branch of national law as private international law. At the same time, the norms of international economic law play an increasingly important role in regulating the activities of individuals and legal entities, but not directly, but indirectly through the state. The state influences the norms of international economic law on private law relations through a mechanism enshrined in national law (for example, in Russia this is clause 4 of article 15 of the Constitution of the Russian Federation, article 7 of the Civil Code of the Russian Federation and similar norms in other legislative acts).
The above indicates the deep interaction of two systems of law (international and national) in regulating international economic relations. This gave rise to the concept of international economic law, which unites international legal and national legal norms governing international economic relations, and the broader concept of transnational law, which includes all norms regulating relations beyond the borders of the state into a single system of law.
Sources and principles of international economic law. Sources of international economic law: international treaties: multilateral (UN Charter; Charter of Economic Rights and Duties of States 1974; Human Rights Covenants 1966; Declaration on the Establishment of a New International economic order 1974); bilateral (trade, credit, payment relations, on the provision of technical assistance, etc.; on trade turnover, on merchant shipping, on scientific and technical cooperation, etc..) international customs and practices.
Principles of international economic law: the inalienable sovereignty of a state over its natural resources; freedom to choose forms of organizing external economic relations; economic non-discrimination; economic cooperation; most favored national treatment; reciprocity.
International economic law generally reflects the laws of a market economy. However, this does not mean limiting the sovereign rights of the state and reducing its role in the economic sphere. On the contrary, management tasks are becoming more complex economic processes, which leads to an increase in the role of the state and, consequently, to an increase in the possibilities of international economic law in the development of both national economy, and the world economy as a whole.
Resolution of international economic disputes. The growing importance and complexity of international economic relations make it necessary to strengthen their management by the joint efforts of states through international organizations, which leads to an increase in the number international organizations and their role in the development of economic interstate cooperation. As a result, international organizations are important subjects of international economic law. The fundamental basis of international economic organizations is the same as that of other international organizations. But there are also some specifics. In this area, states tend to give organizations broader regulatory functions. Resolutions of economic organizations play an important role, supplementing legal norms, adapting them to changing conditions, and where they are absent, replacing them. Some organizations have fairly strict mechanisms for implementing decisions made.
The specifics of resolving international economic disputes are associated with the heterogeneity of international economic relations. Economic disputes between states are resolved on the basis of international law, like other interstate disputes. But since international economic cooperation is carried out primarily in relationships between private individuals of different states, the resolution of disputes between them is of great importance for the stability and efficiency of the international economic system.
Disputes between individuals and legal entities of different countries fall under national jurisdiction. They can be considered by courts (of general jurisdiction or arbitration) of states or by international commercial arbitration (ICA). Participants in international economic relations prefer ICA.
International economic law is usually characterized as a set of principles and norms governing relations between states and other entities in the field of economic cooperation.
This area covers a wide range of relationships - trade, production, scientific and technical, transport, monetary and financial, customs, etc. International economic relations are implemented in the form of: purchase and sale of goods and services (export-import transactions), contract work, providing technical assistance, transporting passengers and cargo, providing credits (loans) or receiving them from foreign sources (external borrowing), resolving customs policy issues.
In international economic law there are sub-sectors, covering specific areas of cooperation, - international trade law, international industrial law, international transport law, international customs law, international monetary and financial law, international intellectual property law, etc. (some of them are sometimes referred to as branches).
An essential specific feature of international economic relations is the participation in them of subjects that are different in nature. Depending on the subject composition The following varieties can be distinguished: 1) interstate - universal or local, including bilateral, in nature; 2) between states and international organizations (bodies); 3) between states and legal entities and individuals belonging to foreign states; 4) between states and international (transnational) economic associations; 5) between legal entities and individuals of different states.
The heterogeneity of relationships and their participants gives rise to the specifics of the applied methods and means of legal regulation, indicating the interweaving of international public and international private law in this area, the interaction of international legal and domestic norms. It is through international regulation of economic cooperation that states influence civil legal relations with a foreign (international) element. This is associated with numerous references in national civil, economic, customs and other legislation to international treaties (for example, Article 7 of the Civil Code of the Russian Federation, Articles 5, 6 of the Law “On Foreign Investments in the RSFSR” of July 4, 1991, Art. 3, 10, 11, 16, 18-22 of the Federal Law “On Railway Transport” of August 25, 1995, Articles 4, 6, 20, 21, etc. of the Customs Code of the Russian Federation).
The most important factor determining the content of international economic law is integration processes at two levels - global (worldwide) and regional (local).
A significant role in integration cooperation is played by international organizations and bodies, among which the most influential are the United Nations Economic and Social Council (ECOSOC), the World Trade Organization (WTO), the United Nations Conference on Trade and Development (UNCTAD), the International Monetary Fund (IMF), and the International Bank for Reconstruction and Development (IBRD). At the regional and interregional levels, the European Union, the Organization for Economic Cooperation and Development (OECD), the Commonwealth of Independent States (CIS), as well as the UN regional economic commissions should be noted.
Sources of international economic law as diverse as the relationships they regulate. The universal documents include the constituent acts of relevant international organizations, the General Agreement on Tariffs and Trade of 1947, the UN Convention on Contracts for the International Sale of Goods of 1980, the Convention on limitation period V international sale and purchase Commodities 1974, UN Convention on the Carriage of Goods by Sea 1978, various commodity agreements. Bilateral treaties make a great contribution to the formation of international economic law. The most common are agreements on the international legal regime of economic relations, agreements regulating the movement of goods, services, capital across state borders, payment, investment, credit and other agreements. Further expansion and deepening of interstate cooperation gives rise to new, more complex, combined types of economic agreements.
Among the fundamental factors determining the relationship between states in the economic sphere is the establishment of the type of legal regime applied to a particular state, its legal entities and individuals.
The following modes are distinguished.
Most favored nation treatment means the obligation of a state to provide (usually on the basis of reciprocity) to another state party to the agreement the benefits and privileges that are provided to them or may be provided in the future to any third state. The scope of application of this regime is determined by the agreement and can cover both the entire sphere of economic relations and certain types of relations. Certain exceptions are allowed from the most favored nation treatment in relation to customs unions, free customs zones, integration associations, developing countries and cross-border trade.
In relation to the sphere of foreign economic relations, this term has an independent meaning, different from the problem of most favored nation treatment when characterizing the status of foreign citizens (see § 7 of Chapter 15).
Preferential treatment means the provision of benefits in the field of trade, customs duties, usually in relation to developing countries or within the framework of an economic or customs union.
National regime provides for the equalization of certain rights of foreign legal entities and individuals with the state’s own legal entities and individuals. This usually concerns issues of civil legal capacity, judicial protection, etc.
Special mode, established by states in the field of economic cooperation, means the introduction of any special rights for foreign legal entities and individuals. This regime is used by states to regulate such issues as increased protection of foreign investments, provision of customs and tax benefits to representative offices of foreign states and employees of these representative offices when purchasing and importing certain goods.
One of the features of international economic law is its active participation in regulating acts of international organizations and conferences. Among the numerous UN resolutions are the Charter of Economic Rights and Duties of States, the Declaration on a New International Economic Order of 1974, the UN General Assembly resolution “Unification and progressive development of the principles and norms of international law relating to the legal aspects of the new economic order” of 1979.
Specific forms and methods of legal regulation are discussed further using examples from two sub-sectors - international trade law and international customs law.
The complex of international economic relations is the subject of international economic law. These relations are very diverse, since they include not only trade relations, but also relations of production, monetary and financial, scientific and technical, in the field of use of intellectual property, affecting the service sector (transport, tourism, telecommunications). The criterion that allows us to differentiate the scope of application of the norms of various branches of international law to this significant part of international relations is the commercialization of these relations. That is, the application of the element of trade (in the broad sense) to the objects of these relations.
International economic law can be defined as a branch of public international law, which is a set of principles and norms governing relations between states and other subjects of international law in the field of international economic relations in order to harmonize and mutually benefit their development.
International economic law is a relatively young branch of international law, which can be said to be still in its infancy.
The significance of the norms of this industry is that they provide orderliness to economic relations, contributing to their further development and, ultimately, the establishment of a unified international economic order.
The decisions of international organizations cover a very wide range of issues related to the settlement of international economic relations. Of particular importance for the creation of a new international economic order are the resolutions of the UN General Assembly, acts of the UN Conference on Trade and Development (UNCTAD), and other specialized UN agencies. The fundamental sources of international economic law include such documents as the Principles of International Trade Relations and Trade Policy Conducive to Development, adopted by UNCTAD in 1964, the Declaration on the Establishment of a New International Economic Order and the Program of Action for the Establishment of a New International Economic Order, adopted at the VI special session of the UN General Assembly in 1974, the Charter of Economic Rights and Duties of States adopted at the 29th session of the UN General Assembly in 1974, the General Assembly resolutions “On Confidence-Building Measures in International Economic Relations” (1984) and “On international economic security" (1985).
The 1974 Charter is one of the striking examples of documents that form modern international economic law. The provisions of the Charter, on the one hand, contain generally recognized principles of international law (such as the principle of sovereign equality of states or the principle of cooperation) in relation to economic relations; on the other hand, the Charter formulates many new principles related to ensuring that the special interests of developing and least developed countries are taken into account and the creation of favorable conditions for their development, economic growth and bridging the economic gap between them and developed countries.
Although the Charter was adopted as a resolution of the General Assembly and does not have binding force, it can nevertheless be noted that the provisions contained in it influence international economic relations and the subsequent rule-making process in this area.
Trade relations form the basis of international economic relations, since all other relations (financial, monetary, insurance) are in one way or another connected with them and serve them. Like any other, international trade relations require legal regulation in order to ensure the protection of mutual interests in trade, to put the development of international cooperation on a legal basis and to increase its efficiency.
International trade law- this is a set of principles and norms governing relations between states and other subjects of international law related to the implementation of international trade turnover.
There are various types of trade and economic associations of states:
- free trade zones (associations), which establish a more favorable trade regime for all or certain types of goods between participating countries (by removing customs and other restrictions). At the same time, the trade policies and terms of trade of these countries with third countries remain unchanged. Examples include the North American Free Trade Area (NAFTA) and the European Free Trade Association (EFTA); free economic zones in Kaliningrad, Chita and other regions;
- customs unions, meaning the introduction of a single tariff and the implementation of a common trade policy of the countries participating in such unions;
- economic unions as a way to integrate the economies of the participating countries and build them a common market for goods, services, capital and labor;
- preferential systems, which provide special benefits and privileges (customs, for example) for a certain range of countries, usually developing and least developed (the global system of trade preferences (GSTP), developed for developing countries).
Sources of international trade law. Bilateral and multilateral international treaties should be considered primarily as sources of international trade law. They can be roughly divided into:
International trade agreements establishing general conditions for cooperation between states in the field of foreign trade;
Intergovernmental trade agreements concluded on the basis of trade agreements and containing specific obligations of the parties in relation to trade between them;
Agreements on the supply of goods (commodity agreements) as a type of trade agreements that provide for a specific list of mutually supplied goods;
Agreements on trade turnover and payments (among other things, contain the basic conditions and procedure for payment for the delivered goods);
Clearing agreements providing for the procedure for settlements for mutual deliveries by offsetting amounts for exports and imports;
And finally, trade conventions that define relations between states according to special issues in the field of trade (for example, customs conventions).
Other sources of international trade law include:
International trade customs, that is, international practices repeated over a long period in international trade relations;
Judicial precedents of international courts and arbitrations;
Decisions and resolutions of international organizations adopted within their competence, if they do not contradict the principles of international law.
The United Nations Commission on International Trade Law (UNCITRAL) deals with issues of systematization and codification of international legal norms in the field of international trade.
System of international trade law. With the globalization of the world economy and the rapid development of cross-border trade, states increasingly began to feel the inadequacy or at least insufficient effectiveness of their national means of regulating trade relations. Based on this, states came to the need to create a global integration agreement. To this end, a multilateral agreement was concluded in 1947 General Agreement on Tariffs and Trade (GA7T), which complemented the post-war "international economic constitution" based on the Bretton Woods agreements of 1944, which, however, remained incomplete due to the non-ratification of the Havana Charter of the International Trade Organization of 1948. The initial number of parties to the Agreement was 23, and by April 1994 it had increased to 132. The development of the GATT over time led to the de facto formation of an international organization of the same name with a permanent Secretariat. The progressive transformation of the GATT from a temporary short-term agreement on mutual liberalization of tariffs into a comprehensive long-term system of more than 200 multilateral trade agreements has had a significant impact on international trade. GATT played a key role in its development through the holding of multilateral trade negotiations (rounds), which systematized the development of international trade, and the creation of rules and regulations of international trade law, giving the international trading system the necessary clarity and legal force.
The GATT did not clearly list its objectives and principles, but they can be deduced from the meaning of its articles. The goals of the GATT can be defined as follows: the establishment of most favored nation treatment, meaning non-discrimination, compliance with accepted obligations, a single regime for developing countries; reduction of tariffs; prohibition of discriminatory taxes on foreign exports; anti-dumping policy; trade liberalization.
The basic principles of GATT can be considered as sectoral principles of international trade law:
Trade without discrimination;
Predictable and increasing market access;
Promoting fair competition;
Freedom of trade;
The principle of reciprocity;
Trade development through multilateral negotiations.
Although over the 48 years of its existence the GATT has achieved a lot in the development of international trade and its legal principles, there have been many mistakes and disappointments: in many areas not covered by GATT law, such as the international movement of services, individuals and capital, problems of bilateralism and sectoral agreements persisted on market division (for example, in relation to air and sea transport), monopolies, cartelization and other forms of protectionism. Even in areas covered by GATT law, such as trade in agricultural products, steel, and textiles, governments often resorted to protectionist measures, departing from their GATT commitments to open markets and non-discriminatory competition. The sectoral erosion of the GATT's legal provisions for free trade also exposed broader and more serious "constitutional imperfections" in national systems and international trade law. This once again confirmed that legal guarantees of freedom and non-discrimination cannot remain effective either at the national or international level until they are included in an integrated constitutional system of institutional “checks and balances”.
The last, eighth round of GATT multilateral trade negotiations, held from 1986 to 1993 and called the Uruguay Round, was designed to bring the GATT system into line with modern requirements of international trade. The Final Act, consolidating the results of the Uruguay Round, was signed at the ministerial meeting of the Trade Negotiations Committee on April 15, 1994 in Marrakesh (Morocco). The General Agreement on Tariffs and Trade was significantly improved and became known as GATT 1994. The General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) were adopted, and finally the Marrakesh Agreement establishing World trade organization(WTO), which came into force on January 1, 1995.
The WTO Agreement, adopted by 124 countries and the EU on April 15, 1994, is not only the longest agreement ever concluded (containing over 25 thousand pages), but also the most important global agreement since the UN Charter of 1945. It includes a preamble and 16 articles regulating the scope and functions of the WTO, its institutional structure, legal status and relations with other organizations, decision-making procedures and membership. Its legal complexity comes from the 28 Additional Agreements and Arrangements included in the four Annexes to the WTO Agreement, and its inclusion in the Final Act consolidating the results of the Uruguay Round of multilateral trade negotiations, including 28 subsequent ministerial decisions, declarations and one agreement regarding the Uruguay Round agreements .
The preamble to the WTO Agreement contains the goals of the new organization: increasing living standards and incomes, achieving full employment, increasing production and trade in goods and services, and making efficient use of world resources. The Preamble also introduces the idea of “sustainable development”, linking it to the need for the appropriate use of world resources, protection and conservation of the environment, taking into account the unequal level of economic development of countries. It also points out the need for further efforts to ensure that developing countries, especially the least developed countries, have a share in the growth of international trade commensurate with their economic development needs.
As a global integration agreement in the field of international movement of goods, services, individuals, capital and payments, the WTO Agreement eliminates the current fragmentation of individual international agreements and organizations governing relations in these areas. After 50 years since the Bretton Woods Conference, its entry into force on January 1, 1995 completed the formation of the legal structure of the Bretton Woods system, based on the International Monetary Fund, the World Bank Group and the WTO. Moreover, since the IMF and World Bank Charters contained only a few substantive rules related to government policy and dispute settlement, the WTO was created to also perform constitutional and rule-making functions in addition to its exclusive functions of monitoring and settling foreign trade disputes. policies of member countries:
The WTO facilitates the implementation, administration and implementation of the provisions of the Uruguay Round and any new agreements that are adopted in the future;
The WTO is the forum for further negotiations between member countries on issues covered by the concluded Agreements;
The WTO is authorized to resolve contradictions and disputes arising between member countries;
The WTO issues periodic reviews of the trade policies of member countries.
Russia's relations with the GATT/WTO began to develop in 1992, when the Russian Federation inherited from the USSR observer status in the GATT, granted to the USSR in May 1990. In 1992, the process of Russia’s accession to the GATT as a full member was begun in accordance with the Decree of the Government of the Russian Federation of May 18, 1992 No. 328 “On the development of relations between the Russian
Federation and the General Agreement on Tariffs and Trade." In order to coordinate the activities of federal executive authorities regarding the participation of the Russian Federation in the work of the WTO and the accession process, the Interdepartmental Commission (MB K) for GATT was formed in 1993, its composition and interdepartmental distribution of responsibilities in the main areas of its activities were approved. The lead agency in this negotiation process is the Russian Ministry of Trade. In connection with the change in the institutional status of the GATT and the emergence of the World Trade Organization, this commission was transformed in 1996 into the Intergovernmental Commission on WTO issues (Resolution of the Government of the Russian Federation of January 12, 1996 No. 17). It currently includes more than 40 ministries and departments of the Russian Federation. In August 1997, on the basis of the specified IMC, the Commission of the Government of the Russian Federation on WTO Issues was created. On July 16, 1993, the GATT Council of Representatives, in accordance with the established procedure, formed a Working Group on Russia's accession to the GATT, and in October 1993, Russia received the status of an associated participant in the Uruguay Round of multilateral trade negotiations. Russia's negotiating position on the issue of accession to the WTO is based on the fact that the conditions for Russia's membership will be as close as possible to the standard ones, excluding infringement of Russia's rights in trade. At the same time, the Russian side is interested in understanding and recognition by all WTO partners of the special transitional nature of the Russian economy. Russia's accession to the WTO is an integral element of the strategic course towards Russia's integration into the world economy as a full participant.
An important role in the development of international trade and international trade law belongs to the United Nations and its bodies and specialized agencies.
United Nations Commission on International Trade Law (UNCITRAL) is a subsidiary body of the UN General Assembly. UNCITRAL was established in 1966 at the 21st session of the General Assembly to enable the UN to play a more active role in reducing and eliminating legal obstacles to international trade. The mandate given by the UNGA to the Commission as “the central legal authority within the UN system in the field of international trade law” is to promote the progressive harmonization and unification of international trade law by:
Coordinating the work of international organizations in this area and promoting cooperation between them;
Encouraging wider participation in international conventions and wider acceptance of existing model and uniform laws;
Preparing or encouraging the adoption of new international conventions, model and uniform laws and encouraging the codification and wider recognition of international trade terms, regulations, customs and practices, in cooperation, where appropriate, with organizations working in this field;
Finding ways and means to ensure uniform interpretation and application of international conventions and uniform laws in the field of international trade;
Collection and dissemination of information on national legislation and modern legal developments, including case law, in international trade law;
Establishing and maintaining close cooperation with the UN Conference on Trade and Development, as well as with other UN organizations and specialized agencies dealing with international trade issues;
Taking any other measures it deems useful in the performance of its functions.
The Commission established the basis for its existing long-term program of work at its 11th session in 1978 the following topics: international purchase and sale of goods; international negotiable documents; international commercial arbitration and conciliation; international cargo transportation; legal consequences of the new economic order; industrial contracts; liquidated damages and punitive damages clauses; universal unit of account for international conventions; legal issues arising in connection with automatic data processing. Additional topics were also identified: provisions protecting parties from the effects of currency fluctuations; bank commercial loans and bank guarantees, general conditions of purchase and sale; barter transactions and barter-type transactions; multinational enterprises; security interests in goods, liability for damage caused by goods intended for international trade or being the subject of international trade; most favored nation clauses.
Among the acts prepared by the Commission:
the 1974 Convention on the Limitation Period in the International Sale of Goods and its 1980 Protocol of Amendments, the 1980 UN Convention on Contracts for the International Sale of Goods;
USCITRAL Arbitration Rules (1976), UNCITRAL Model Law on International Commercial Arbitration (1985);
Convention on the Carriage of Goods by Sea, 1978;
Model Electronic Commerce Law 1996.
United Nations Conference on Trade and Development (UNCTAD) was established in 1964 by the General Assembly as a subsidiary body, but has long grown into an independent autonomous body of the UN. UNCTAD is the main UNGA body in the field of trade and development. UNCTAD is the focal point within the UN for integrated consideration of development and interrelated issues in the areas of trade, finance, technology, investment and sustainable development.
The main objectives of the Conference are: to maximize the opportunities of developing countries in the field of trade, investment and development and to assist them in meeting the challenges associated with the process of globalization and integration into the world economy on an equitable basis.
To achieve these goals, UNCTAD carries out its activities in the following areas:
Globalization and Development Strategy;
International trade in goods and services and commodity issues;
Investments, technologies and enterprise development;
Service infrastructure for the development and efficiency of trade;
Least developed, landlocked and island developing countries;
Cross-sectoral issues.
In its activities, UNCTAD cooperates with the United Nations Department of Economic and Social Affairs (DESA), the United Nations Development Program (UNDP), WTO, International Trade Center (ITC), UNIDO, WIPO and other organizations.
The area of international trade in goods and services, as well as commodity issues, is an area of very active work for UNCTAD. It assists developing countries, and in particular the least developed countries, in maximizing the positive impact of globalization and liberalization on sustainable development by helping them to effectively integrate into the international trading system.
UNCTAD analyzes the impact of the Uruguay Round agreements on trade and development and helps countries take advantage of the opportunities arising from these agreements, in particular by strengthening their export capacity.
The conference promotes the integration of trade, environment and development issues, encouraging diversification in commodity-dependent developing countries and helping them manage trade-related risks.
UNCTAD is achieving tangible results in its work. The following were developed: Agreement on the Global System of Trade Preferences
tions between developing countries (1989); Guidelines for International Arrangements for Debt Restructuring (1980); Major New Program of Action for the Least Developed Countries (1981) and Program of Action for the Least Developed Countries for the 1990s (1990). A number of conventions in the field of transport have been adopted.
UNCTAD/WTO International Trade Center (ITC) was created by an agreement between UNCTAD and GATT in 1967 to provide international assistance to developing countries in expanding their exports. ITC is managed jointly and equally by UNTAD and WTO.
ITC is a technical cooperation organization whose mission is to support developing countries and countries with economies in transition, and in particular their business sectors, in their efforts to realize their potential in developing exports and improving import operations to ultimately achieve sustainable development.
International trade in commodities is governed by multilateral agreements, many of which were concluded with the direct participation of UNCTAD (international agreements on cocoa, sugar, natural rubber, jute and jute products, tropical timber, tin, olive oil and wheat). International organizations are created with the participation of importing and exporting countries or only exporters. An example of the latter is the Organization of Petroleum Exporting Countries (OPEC), which protects the interests of oil-producing countries (mainly developing ones) by harmonizing oil prices and introducing oil production quotas for countries participating in this Organization.
There are also international organizations whose activities are aimed at promoting international trade. These are the International Chamber of Commerce, the International Bureau for the Publication of Customs Tariffs, and the International Institute for the Unification of Private Law (UNIDROIT).
3. International legal regulation of cooperation in the field of trade in food and raw materials
Characteristic feature development of the world economy of the 20th century, especially its second half, is the need for international cooperation between states in the field of regulating trade in certain types of food and raw materials. This need was due to the varying degrees of development not only of the economies of individual states, but also of individual sectors of their economies.
Regulation of trade in these products aims to balance the supply and demand of goods on the world market and maintain agreed market prices for them within certain limits. This regulation is carried out through the conclusion of so-called international commodity agreements. Such agreements determine the volume of supplies of food and raw materials to the world market. On the one hand, agreements keep the agreed prices for individual products from falling, and on the other hand, they do not allow overproduction of individual products, that is, they also influence their production.
The first agreements were concluded back in the 30-40s of the 20th century.
The first such agreement was the International Wheat Agreement, which was concluded in 1933. His conclusion was due to the outbreak of the world war in 1929-1933. economic crisis. This Agreement determined quotas for the production and export of wheat by participating countries. In 1942, the International Wheat Council was created, which exercised coordination functions, in particular on wheat export issues. Among other agreements of the 30s and early 40s there were agreements on the regulation of the production and export of rubber (1934), tin (1942), sugar (1937), and coffee (1940).
International experience accumulated as a result of cooperation between states on the basis of these agreements has shown the effectiveness of such cooperation. In connection with this, in subsequent years, states, both exporters and importers, more or less regularly concluded commodity agreements relating to trade in certain types of food (agricultural) and raw materials.
There are currently a number of international commodity agreements in force. Among them are agreements on coffee, cocoa, wheat, grains, sugar, olive oil, jute and jute products, tropical timber, and tin.
The common goals of all commodity agreements are to stabilize world markets by ensuring a balance between supply and demand, expanding international cooperation in the global food market, ensuring intergovernmental consultations, improving the situation in the global economy, developing trade, and also to establish fair prices for food and raw materials. products. The parties to these agreements are exporting states (producers) and importing states of the relevant food and raw materials.
A number of agreements provide for the creation of buffer (stabilization) reserves of certain products, such as tin and natural rubber. With the help of such reserves, sharp fluctuations in product prices are prevented and possible crises in both production and trade are prevented.
Other agreements, for example on cocoa, provide that member states must report, no later than the end of each year (calendar or agricultural), to the relevant authorities created on the basis of such agreements, information on stocks of products. Such information allows exporting countries to determine their policies in the production of relevant products. In other words, to stabilize the demand and supply for food and raw materials, international commodity agreements use various means.
All international commodity agreements provide for the formation of special international organizations, for example, such as the International Sugar Organization, the International Tin Organization, the International Cocoa Organization, the International Coffee Organization, etc. The main function of these organizations is to monitor the implementation of relevant agreements.
The highest body of these organizations is the international council, for example: International Sugar Council, International Tin Council, International Cocoa Council, etc. Members of the councils are all parties to the agreements, both exporters and importers. At the same time, a fixed number of votes is established in the councils, which all participants have. These votes are distributed equally among importing states. Moreover, each participant has a number of votes depending on the volume of exports or imports of the corresponding product. Thus, the International Cocoa Agreement of July 16, 1993 provides that exporting participants have 1000 votes. Importing participants also have the same number of votes. These votes are distributed among the participants as follows. Each exporting member has five primary votes. The remaining votes are distributed among all exporting members in proportion to the average volume of their respective cocoa exports over the three preceding agricultural years. The votes of importing participants are distributed as follows: 100 votes are divided equally among all importing participants. The remaining votes are distributed among such participants depending on the percentage of the average annual volume of cocoa imports for the three preceding agricultural years. The agreement stipulates that no participant can have more than 400 votes.
The international councils of these organizations have all the powers necessary to implement the relevant agreements. The councils meet in regular sessions, which are usually convened twice a calendar or agricultural year. Council decisions are binding.
In addition to councils, executive committees are created. Members of these committees are elected by exporting and importing participants. Seats on committees are distributed equally among these members. Thus, the Executive Committee of the International Cocoa Organization consists of 10 representatives of exporting states and 10 representatives of importing states. He is responsible to the Council, constantly monitors the state of the market and recommends to it those measures that the Committee considers appropriate to implement the provisions of the agreement. The Council, after consultation with the Executive Committee, appoints the Executive Director, who is the chief officer of the international organization. The executive director appoints the staff. The activities of the executive director and staff are international in nature.
International organizations, their executive directors, staff and experts enjoy privileges and immunities in accordance with the agreements concluded by these organizations with states on the seat of such organizations.
All international organizations established under international commodity agreements cooperate with the Common Fund for Commodities, which was established in accordance with the Agreement on the Common Fund for Commodities concluded on June 27, 1980.
4. International legal cooperation in the field of currency and financial relations
It is customary to view international monetary and financial relations as a single whole, as opposed to trade relations. This is due to the Bretton Woods agreements of 1944, on the basis of which the IMF and the World Bank were established in the monetary and financial sphere, on the one hand, and the GATT in the trade sphere, on the other.
International monetary and financial relations as special social relations in the field of international economic relations are important integral part world economy. They are manifested in various forms of cooperation between states: in the implementation of foreign trade, provision of economic and technical assistance, in the field of investment, international transport, etc. In all these cases, there is a need to carry out certain payment, settlement, credit and other monetary transactions, where money acts as currency as an international means of payment.
International monetary and financial law- this is a set of international legal principles and norms governing interstate monetary and financial relations, the subjects of which are states and intergovernmental organizations. This relationship is based on the principle set out in the 1974 Charter of Economic Rights and Responsibilities of States that all States, as equal members of the international community, have the right to participate fully and effectively in international process make decisions to resolve financial and monetary problems and fairly enjoy the resulting benefits (Article 10).
In the field of international monetary and financial relations, the main forms of regulation are bilateral and multilateral agreements, as well as decisions of international monetary organizations.
As for bilateral agreements, they are very numerous in this area. Agreements on economic cooperation and trade agreements contain provisions related to monetary and financial relations. A special place is occupied by special agreements: credit and settlement agreements.
Credit agreements determine the volume, forms and conditions for the provision of loans. The validity period differs between long-term (over five years), medium-term (from one to five years) and short-term (up to one year) credit agreements. Long-term and medium-term agreements are used to provide technical assistance in the construction of industrial and other facilities, for the supply of expensive equipment, machinery, etc. Short-term agreements mainly affect issues of current trade turnover. International credit has two main forms: commodity and monetary. Credits in the form of money are called loans. Their provision and repayment are made exclusively in cash. Conventional loans can be repaid not only in cash, but also in commodity form, by supplying goods.
In the field of international economic turnover, payment, clearing and payment-clearing agreements are known. Payment agreements provide for settlements in the agreed currency, the mechanism for such settlements, and the procedure for providing currency for payments. Clearing agreements are settlements on a non-cash basis by offsetting counterclaims and obligations in special (clearing) accounts in the central banks of the contracting parties. Clearing and payment agreements are clearing settlements with balances settled in an agreed upon currency.
All higher value in the field of monetary and financial relations, multilateral agreements are acquired. Most of these agreements establish uniform norms, being an instrument of unification and influencing the formation of national monetary and financial norms. Among such agreements, mention should be made of the Geneva Conventions on the Unification of Bills of Exchange Law of 1930, the Geneva Convention on the Resolution of Conflicts of Issues on Bills of Exchange and Promissory Notes of 1930 (Russia participates in these conventions), the Geneva Check Convention of 1931 (Russia does not participate), the UN Convention on International bills of exchange and international promissory notes of 1988 (not entered into force), etc.
A series of agreements have been concluded within the European Union, including the Maastricht Treaty of 1992, providing for the procedure for mutual settlements in eurocurrency. In the Commonwealth of Independent States, the Agreement on the Establishment of the Payments Union of the CIS Member States was signed (1994).
International monetary organizations, funds, and banks play a significant role in regulating international monetary and financial relations. At the universal level, these are the IMF and the World Bank. The main goal of the IMF is to coordinate the monetary and financial policies of member countries and provide them with loans (short-term, medium-term and partly long-term) to settle balances of payments and maintain exchange rates. The IMF monitors the functioning of the international monetary system, the monetary and exchange rate policies of member countries, and their compliance with the Code of Conduct in International Monetary Relations.
As for the World Bank, its main task is to promote sustainable economic growth by encouraging foreign investment for production purposes, as well as providing loans for the same purposes (in areas such as agriculture, energy, road construction, etc.). While the World Bank lends only to poor countries, the IMF can do so to any of its member countries.
Regional monetary and credit organizations have become widespread. In Europe, the first place to be named is the European Bank for Reconstruction and Development.
European Bank for Reconstruction and Development (EBRD) - international financial institution, created in 1990 with the participation of the USSR to assist the countries of Central and Eastern Europe in carrying out economic and political reforms and forming a market economy. Its founders were 40 countries: all European countries (except Albania), the USA, Canada, Mexico, Morocco, Egypt, Israel, Japan, New Zealand, Australia, South Korea, as well as the European Economic Community and the European Investment Bank (EIB). As of April 1999, 59 countries, as well as the EU and the EIB, are members of the EBRD.
The highest body of the EBRD is the Board of Governors, in which each member of the EBRD is represented by one governor and one deputy. It determines the main directions of the Bank's activities. The Board of Directors (23 members) is the main executive body responsible for the current issues of the EBRD's work. It is formed as follows: 11 directors - from EU member countries, the EU itself and the EIB; 4 - from CEE countries eligible to receive assistance from the EBRD; 4 from other European countries and 4 from non-European countries. The President of the Bank is elected for four years and is responsible for organizing the work of the EBRD in accordance with the instructions of the Board of Directors.
The number of votes of each member is equal to the number of shares for which he has subscribed. Member countries of the EU, EIB and EU have a quota of 51% in the authorized capital, CEE countries - 13%, other European countries - 11%, non-European countries - 24%. The largest shares in the capital belong to the USA (10%), Great Britain, Italy, Germany, France, Japan (8.5% each). Russia's share is 4%.
A simple majority of votes is required to make decisions in the EBRD's governing bodies. Some questions require a special majority (2/3, or 85% of the votes to which members voting are entitled).
The EBRD's activities are aimed at assisting member countries in implementing economic reforms at various stages of the transition to a market economy, as well as promoting the development of private enterprise. At the same time, the EBRD openly announced that it would put forward political demands and conditions when providing financial resources.
Russia maintains close cooperation with the EBRD. Data for 1995-1997 show that a third of EBRD investments were invested in Russian enterprises, for example, a number of projects in the Russian oil and gas complex were financed, under the TACIS program, etc.
Among other European financial and credit organizations, mention should be made of the European Investment Bank (EIB) and the European investment fund(EIF), operating within the European Union, as well as the Nordic Investment Bank (NIB) and the Nordic Development Fund (NDF), created within the Nordic Council of Ministers.
International financial and credit institutions operating in other regions of the world have basically similar goals and structure. Their main objectives are to provide support to the less developed countries of the world, promote economic growth and cooperation in the respective regions where such organizations operate, provide loans and invest their own funds in order to achieve economic and social progress of developing member states, assist in the coordination of plans and goals development, etc. The governing bodies of regional financial and credit organizations are boards of governors, boards of directors and presidents.
The largest of the regional financial and credit organizations is the Asian Development Bank (ADB), created in 1965 on the recommendation of the Conference on Asian Economic Cooperation, convened under the auspices of the Economic Commission for Asia and the Far East. Its main goal is to promote economic growth and cooperation in the Asia and Far East region.
The ADB members are 56 states: 40 regional and 16 non-regional, including the USA, Great Britain, Germany, France and other capitalist countries. The USA and Japan have the largest share in capital and, accordingly, the number of votes (16% each).
There are a number of financial and credit organizations operating in the Americas region: the Inter-American Development Bank (IDB), the Inter-American Investment Corporation (IAIC), the Caribbean Development Bank (CBD), and the Central American Bank for Economic Integration (CABEI). The largest is the Inter-American Development Bank, created in 1959 to help accelerate economic and social development in Latin America and the Caribbean. Its members are 46 states: 29 regional, including the USA, and 17 non-regional, including the UK, Germany, Italy, France, Japan, etc.
In the African region there are the African Development Bank Group (AFDB), the East African Development Bank (EADB), the Development Bank of Central African States (CDEAS), and the West African Development Bank (WADB).
The African Development Bank (ADB) was created in 1964 with the assistance of the United Nations Economic and Social Commission for Africa. It consists of 52 regional states and 25 non-regional states, including the largest capitalist countries. In 1972, the African Development Fund was created, and in 1976, the Nigeria Trust Fund, which became part of the African Development Bank Group. All organizations aim to promote economic development and social progress of regional member states, finance investment programs and projects, encourage public and private investment, etc.
To ensure economic development and cooperation between Arab countries There are such financial and credit organizations as the Arab Fund for Economic and Social Development (AFESD), the Arab Monetary Fund (AMF), and the Kuwait Fund for Arab Economic Development (KFAED).
Of particular note is the Islamic Development Bank (IDB), established in 1974 to promote economic development and social progress of member countries and Muslim communities in accordance with Sharia principles. IDB members are 50 states, including from the CIS countries - Turkmenistan, Kazakhstan, Tajikistan, Kyrgyzstan, Azerbaijan.
Universal and regional financial and credit organizations provide some positive assistance to the economic growth and social progress of the least developed countries. At the same time, one cannot help but notice that in all of these organizations the leading position is occupied by the United States and other large capitalist countries, using their mechanisms to obtain tangible benefits of both an economic and political nature, and for the export of Western values, ideals and way of life.
5. International transport law
International transport law- a complex part of international law, which includes relations of both public law and (mainly) private law nature.
Historically, only relations arising in the field of sea, air and (to a lesser extent) road transport reach the level of universal regulation in this area. Special agreements (conventions, treaties) apply to water (river), railway, highway and pipeline transport.
International transportation usually means the transportation of passengers and cargo between at least two states under the conditions (unified standards) established in international agreements regarding the requirements for transportation documentation, the procedure for passing administrative (customs) formalities, services provided to the passenger, conditions for accepting cargo for transportation and issuance of it to the recipient, the responsibility of the carrier, the procedure for filing claims and claims, the procedure for resolving disputes.
In international maritime transport, along with international contractual norms, customary legal norms are widely used. In this case, the determination of the law applicable to maritime transport is of utmost importance.
The 1999 Merchant Shipping Code of the Russian Federation establishes that the rights and obligations of the parties under a contract for the carriage of goods by sea, a contract for the carriage of passengers by sea, as well as under contracts for time charter, sea towing and marine insurance are determined by the law of the place where the contract was concluded, unless otherwise established by agreement of the parties . The place of conclusion of the contract is determined by the law of the Russian Federation.
Sea transportation performed without the carrier providing the entire ship or part thereof is formalized by a bill of lading, the details of which, the procedure for filing claims against the carrier, and the conditions of the carrier’s liability based on the principle of liability for fault are defined in the Brussels Convention for the Unification of Certain Rules on Bills of Lading of 1924. In this case, however, a “navigation error” (an error by the captain, sailor, or pilot in navigation or control of the vessel) excludes the liability of the sea carrier.
The UN Convention on the Carriage of Goods by Sea, adopted in 1978 in Hamburg, amends the said 1924 Convention on such issues as expanding the scope of application to the carriage of animals and deck cargo, increasing the limit of the carrier’s liability for the safety of cargo, and detailing the procedure for filing claims against the carrier.
Regular (linear) sea transportation of goods is usually carried out on the basis of agreements on the organization of permanent shipping lines, which can be concluded by both states (governments) and (usually) ship-owning companies. Such agreements define the basic operating conditions of the relevant lines, and the conditions of sea liner transport are determined in liner bills of lading, relevant rules and tariffs. Ship-owning companies often form, on the basis of an agreement, groups of carriers called liner conferences, with the help of which the largest companies achieve high freight rates and other preferential conditions.
International air transportation of passengers, baggage, cargo and mail is subject to the documents of the Warsaw System. The basis of this system is the Warsaw Convention for the unification of certain rules relating to international air transport 1929, supplemented by the Hague Protocol of 1955. The Convention applies to transportation carried out between the territories of member states, as well as to transportation when the place of departure and destination are in the territory of the same state party, and the stopover is provided in the territory of another state, even if not party to the Convention. The Convention defines the requirements for transportation documents, the sender's rights to dispose of cargo en route, the procedure for the release of cargo at the destination, and the carrier's responsibility to passengers and the cargo owner.
According to the Warsaw Convention, the carrier's liability is based on fault: the carrier must prove that he and the persons appointed by him took all measures to avoid harm, or that it was impossible to take them. Under the terms of the Warsaw Convention, the limit of liability of the carrier in respect of death or bodily injury of a passenger is 125 thousand French gold Poincaré francs (franc containing 65.5 mg gold standard 0.900), for each kilogram of luggage and cargo - 260 francs, for hand luggage - 5 thousand francs. The Hague Protocol doubles these limits. In addition, they can be increased by the carrier by agreement with the passenger, evidence of which is the purchase of a ticket by the passenger. Many leading air carriers (using this opportunity) have entered into an agreement among themselves (the Montreal Agreement of 1966) to increase their liability limits for transportation to, from, or through the United States to a limit of $75,000.
In the field of railway transport, the best known are the Berne Conventions concerning the carriage of goods by rail (abbreviated as CIG) and on the carriage of passengers by rail (abbreviated as IPC). Most countries in Europe, Asia and North Africa participate in them. In 1966, the IPC Additional Agreement on the liability of railways when transporting passengers was concluded. In 1980, at the Conference for the Revision of the Berne Conventions, the Agreement on International Transport by Rail (COTIF) was concluded. The latter document consolidates the Berne Conventions and the 1966 Additional Agreement into a single document with two annexes. Thus, Appendix A determines the conditions for the transportation of passengers, and Appendix B determines the conditions for the transportation of goods.
Freight rates are determined by national and international tariffs. There are deadlines for delivery of goods. Thus, according to the COTIF rules, the general delivery time for high-speed cargo is 400 km, and for low-speed loads - 300 km/day At the same time, the railways retain the right to set special delivery times for individual messages, as well as additional terms in the event of significant transportation difficulties and other special circumstances.
The maximum amount of liability of railways in case of failure of transported goods in COTIF is determined in the units of account of the International Monetary Fund - SDR (17 SDR, or 51 old gold francs per 1 kg gross weight).
COTIF rules provide that losses caused by delay in delivery are compensated to the cargo owner within the limits of three times the carriage charges.
The conclusion of an agreement for the international carriage of goods is formalized by drawing up a consignment note in the prescribed form, and the shipper receives a duplicate of the consignment note. Responsibility of railways for failure to preserve cargo occurs if there is fault of the carrier, which in some cases must be proven by the cargo owner. The unsafety of the cargo must be confirmed by a commercial act. In case of delay in delivery, the railway pays a fine in a certain percentage of the freight charge.
Claims against railways are brought in court, and a claim must first be sent to the carrier. There is a nine-month period for filing claims and lawsuits, and a two-month period for claims about delay in delivery of cargo. The railroad must resolve the claim within 180 days, during which time the statute of limitations is suspended.
Many countries have concluded bilateral agreements on international freight and passenger traffic.
Rules regarding road transport are contained in the Convention on traffic and in the Protocol on road signs and signals of September 19, 1949 (as amended in 1968 and entered into force in 1977). The Russian Federation participates in these agreements. The Customs Convention on the International Transport of Goods of 1959 is also in force (a new edition came into force in 1978). The Russian Federation is its participant.
The terms of the contract for the international carriage of goods by road between European countries are determined by the Convention on the Contract for the International Carriage of Goods by Road (abbreviated as CMR) of May 19, 1956. Most European states are parties to the Convention. It determines the basic rights and obligations of the cargo owner and carrier during road transportation, the procedure for accepting cargo for transportation and releasing it at the destination. A liability limit has also been established for cargo failure - 25 gold francs per 1 kg gross weight.
When transporting by road, it is essential to create guarantees in case of harm to third parties by vehicles - a source of increased danger. This is achieved through the introduction of compulsory civil liability insurance, which is provided for both by domestic legislation and a number of international agreements. Thus, bilateral agreements on the organization of road transport concluded with a number of countries provide for mandatory civil liability insurance for international road transport.
Among the relevant international documents in this area, the Geneva Convention on Road Traffic of September 19, 1949 should be highlighted. In accordance with this Convention, the contracting states, while retaining the right to establish rules for the use of their roads, decide that these roads will be used for international traffic in conditions provided for by this Convention and are not obliged to extend the benefits arising from the provisions of this Convention to vehicles, trailers or drivers of vehicles if they have been in their territory continuously for more than one year.
When applying the provisions of this Convention, the term “international movement” means any movement associated with the crossing of at least one state border.
In addition, the parties to the Convention undertake to exchange information necessary to identify drivers who have domestic permits to drive a car and who are guilty of violating international traffic rules. They also undertake to exchange information necessary to identify the owners of foreign vehicles (or the persons in whose name such vehicles were registered) whose actions have led to serious road traffic accidents.
On September 19, 1949, the Protocol on Road Signs and Signals was concluded in Geneva. Also noteworthy is the Agreement on the Implementation of a Unified Container Transport System (Budapest, December 3, 1971).
According to this document, The contracting parties agreed to create a system for the transportation of goods inland and especially international communications, based on the use by the parties of heavy-duty universal and special containers on all types of transport according to the technical, technological and organizational conditions agreed upon by them, hereinafter referred to as the “unified container transport system”. This system should provide for the possibility of developing container transportation of goods also between contracting parties and third countries.
For the transportation of goods by air, the contracting parties will use containers that meet the conditions of such transportation, with the parameters recommended by ISO and IATA (International Air Transport Association).
The contracting parties organize a network of regular international container lines of rail, road, water and air transport, linked with domestic container lines, taking into account the national transport needs and transport structure of the contracting parties, as well as container transshipment points to ensure the transfer of containers from one mode of transport to another and between railways with different gauges. In some cases, it is envisaged to create joint container transshipment points.
15.1. Origins, concept and system
international economic law
International economic law (hereinafter referred to as IEL) as a special legal system was formed recently - in the second half of the 20th century. However, the interstate trade and economic relations themselves regulated by the MEP are as ancient as, unfortunately, wars between states, and the causes of wars very often were precisely economic and trade interests.
The beginnings of international legal regulation of economic and, above all, trade relations between states date back to ancient times. Initially, international treaties, and these were primarily peace or alliance treaties, usually included conditions for ensuring trade. At the same time, from ancient times to the present day, foreign trade and then foreign economic policy of states, which finds its legal expression in international treaties, is composed of two conceptual approaches that oppose each other and at the same time dialectically almost always coexist in the policy of any state, namely protectionism And liberalism.
The main reason for protectionism is to protect one's own economy from foreign competition. Protectionism is by no means characteristic only of economically weak states seeking to protect their economies. Protectionism is used, when it is beneficial, by the most developed countries, for example, to protect their own agriculture from foreign competition (USA, European Union, etc.). The highest expression of protectionism is autarky - a policy of self-isolation and maximum self-sufficiency of the state with products of its own production, now an anomaly.
However, the advantages of free trade have long become clear. One of the first to clearly express this understanding was the theologian John Chrysostom (IV century, Byzantium), who, figuratively formulating the foundations of an essentially liberalist trade and political concept, which could not be more relevant in our time, wrote that God himself has provided us with the ease of mutual trade relations, so that we can look at the world as a single dwelling, and also so that each, sharing his works with the other, can freely receive in abundance what the other has.
The “father” of the science of international law, Hugo Grotius (XVII century), putting liberalization ideas into legal form, pointed out that “no one has the right to interfere with the mutual trade relations of any people with any other people.” It is this principle jus commercii- the right of free trade, understood in a broad sense, becomes, in fact, fundamental in the science of international economic law.
However, to this day, the balance of protectionist and liberalization, otherwise free trade components in foreign economic policy continues to be the result of struggle and cooperation in the sphere of international economic relations, and the international legal embodiment of these results is, in essence, international economic law. In the XVIII - XIX centuries. the vector of equilibrium between the policies of protectionism and liberalism leaned in favor of the latter. Since the beginning of the 20th century. and until its middle, with the establishment of the state-national idea and the emergence of trade and economic multipolarity of the world, nationalism (in various forms) and protectionism came to the fore. And from the end of the Second World War to the present day, in the conditions of the predominant power of the United States in the world market, the concept of free trade actually reigns supreme.
It is extremely important that the trade and economic factors of liberalism or protectionism always interact with processes of general civilizational and geopolitical significance nationalism, regionalism(unification of states usually by geographical location) and, finally, globalism. The politics and practice of liberalism, i.e. freedom of movement of goods, services and people (according to the principle laisserfaire laisserpasser- freedom to do, freedom to transport), naturally, directly correspond with globalization, understood as a planetary-oriented diverse expansion of individuals, groups, states in the areas of trade, financial flows, industry, communications, computer science, science, technology, culture, religion, crime and etc. with a convergence effect. The phenomenon of globalization is far from new; we can trace it back to the Roman Empire. (Pax Romana) to this day. But in territorial, temporal aspects, in terms of subject coverage, as well as in terms of impact on individual countries, regions and human communities, the development of globalization has been extremely uneven, interspersed with periods of fragmentation.
Modern globalization has a number of characteristic features. First, real globalization achievements are concentrated almost exclusively in sphere of trade and economic expansionism. True, comprehensive globalization (including political, social, cultural, religious, migration, civilizational and other components) is still very far away.
Secondly, although globalization is a phenomenon objectively determined by the development of industry, the communication revolution, the intensification of cross-border capital flows, etc., it is a phenomenon controlled, in various areas, either stimulated or suppressed. International legal instruments (international treaties, organizations, etc.) serve as the most important levers for managing globalization. It is no coincidence, therefore, that the formation and establishment of a special branch of law - MEP - clearly coincided in time with the steep rise in the development of trade and financial globalization.
Thirdly, although by the end of the 20th century. in futurological forecasts, globalization has almost become a fetish, the prospects for the development of globalization are ambiguous, as evidenced by the current globalization recession associated with the crisis decline in business activity in the world. The ongoing competition between global and regional (and even narrowly nationalistic) development trends has not been removed from the agenda. Practice shows that such integration-oriented systems as the European Union, NAFTA and even the WTO have difficulty opening doors to applicant countries and thus are unlikely to serve the interests of true globalization.
The gradual elimination of the gap and confrontation between the “rich North” and the “poor South” was declared as one of the most important globalization tasks. However, this gap, measured by economic growth rates and price ratios (terms of trade) for raw materials of the “South” and industrial goods of the “North” is by no means reduced. It is this unequal position in relation to the benefits of liberalization that seems to be an important underlying basis for the ongoing anti-globalist protests in our time, which are not accidentally directed primarily against individual international institutions with a globalization orientation.
International legal forms of economic cooperation. Until the middle of the 20th century. the predominant international legal form was bilateral treaties, and with the end of the Second World War and the formation of the UN, the Charter of which indicates the implementation of international cooperation in resolving international problems economic nature (Article 1), there is a massive transition to multilateral forms of cooperation. Numerous international economic organizations are being created, and many new types of agreements are appearing. At the same time, economic integration international associations emerged, including the still-living European Communities, and the defunct Council for Mutual Economic Assistance (CMEA). In 1947, the first multilateral trade agreement in history was concluded - the General Agreement on Tariffs and Trade, on the basis of which the World Trade Organization (WTO) was institutionalized in 1994.
The lion's share of all concluded international treaties and existing international organizations in our time falls on the economic relations of states. Therefore, it will not be an exaggeration to say that, quantitatively, the normative body of modern international law is half of international economic law. Since the 50s of the XX century. foreign economic policy and its legal implementation in international legal acts acquire strategic importance and become in practice the dominant work for diplomats. It was against this background and on this material and legal basis that by the 1970s, international economic law (as well as its science) was firmly established as an independent branch of public international law.
Subject of MEP- international economic multilateral and bilateral relations. International relations in the MEP are understood as relations between states, as well as other subjects of public international law, and economic relations primarily include trade, commercial relations in the broad sense of the word, including industrial, scientific, technical, monetary and financial relations, in the field of transport, communications , energy, intellectual property, tourism, etc. The criterion for delimiting the scope of application of the IEP and other branches of public international law is the presence of a commercial element. Those norms of international acts that relate, for example, to sea or air transportation of goods and passengers and that interpret trade, economic and commercial relations, are justifiably classified as international economic law.
MEP definition: this is a branch of public international law, which is a set of principles and norms governing relations between states and other subjects of international law in the field of international economic relations.
This definition of MEP corresponds to its modern classical understanding both in domestic (M.M. Boguslavsky, G.E. Buvailik, G.M. Velyaminov, E.T. Usenko, V.M. Shumilov, etc.) and foreign doctrine (J. Brownlie, P. Verloren van Themaat, G. Schwarzenberger, etc.). But at present, in Western literature, the concept is widespread that the source of MEP norms is both international and domestic law, and the MEP extends its effect to all legal entities involved in commercial relations that extend beyond the borders of one state (V. Fikentscher - Germany, E. Petersman - Great Britain, P. Reiter - France, etc.). This second concept also connects with the theories of transnational law put forward in the West (F. Jessen - USA), which are also used to equate states and so-called transnational corporations - TNCs (V. Friedman, etc.) as subjects of international law.
In the legal literature of developing countries, the concept of “international development law” has become widespread, which focuses on the special regulation of the rights of the so-called developing and most economically poor countries.
There is also the concept of so-called lex mercatoria- “merchant law”, which in theory is understood as either the entire array of national and international regulation of foreign economic transactions, or an autonomous set of rules regulating international trade transactions, isolated from national legal systems, and defined as “transnational” (K. Schmithof), “ non-national" (F. Fouchard) law. To sources lex mercatoria its supporters include international conventions and model laws developed at the international level, international trade customs, general principles of law, advisory decisions of international organizations, arbitration decisions, even the terms of contracts, etc. Proponents of this theory, however, fail to imagine lex mercatoria in the form of an ordered and generally recognized system of legal norms, and there is no reason to consider a conglomerate of heterogeneous forms conventionally placed in lex mercatoria, as an integral part of the MEP - a branch of public international law.
Systematically, the MEP is a branch of a special part of public international law among the same branches as, in particular, maritime law, space law, environmental law, humanitarian law, etc. Scientific system MEP consists of its general parts (genesis, concept, subjects, sources, principles) and from special part, consisting of three main sections: the first - institutional, otherwise - organizational and legal forms of universal and regional regulation of international economic relations; the second - international trade law (trade in goods, trade in services, monetary and financial transactions) and the third - international property law(interstate property relations, international intellectual property law, international investment law, international tax law, etc.). In addition, international economic procedural law (settlement of interstate economic disputes, international legal support for the settlement of private law disputes) is especially highlighted (G.M. Velyaminov).
The relationship between the IEP and international private law (PIL). The problem is complicated by the fact that there are various scientific theories regarding the concept and composition of international private law. Without going into an analysis of these theories, we note that the most important difference between the IEP is, firstly, that its subjects are only subjects of public international law, while the subjects of international private law are primarily subjects of national legal systems. Secondly, the IEP as a branch of public international law is applied to the regulation of international public law relations, and international private law relations, including in some cases with the participation of states and other subjects of public international law, are regulated by one or another private, national applicable law, including, in some cases, indirectly including the norms of certain international treaties and conventions, i.e. norms received/transformed into national legal systems (E.T. Usenko, D.B. Levin, S.Yu. Marochkin, G.M. Velyaminov).
15.2. Subjects, sources and principles of MEP
MEP subjects the same as in international law in general, namely states and some similar entities, as well as legal interstate organizations.
But states They also have civil legal personality and have the right to directly participate in foreign economic commercial activities in so-called diagonal (E.T. Usenko) relations, i.e. in civil legal relations with foreign individuals or legal entities. In such cases, in Western doctrine they sometimes talk about the so-called “trading state”, which, entering into diagonal relations, supposedly ipso facto loses its inherent immunities, including from foreign jurisdiction, judicial enforcement measures and from preliminary security of claims. This kind of doctrinal opinion about the loss by a “trading state” of automatically all its immunities is not fully shared by domestic science, and is not accepted in the practice of foreign courts.
International organizations. Their legal capacity and international privileges and immunities are strictly functional and are usually determined by their constituent documents. Accordingly, only those international organizations that are endowed with functional legal capacity that allows them to enter into international economic legal relations with other MEP subjects can really be subjects of the MEP.
The so-called international para-organizations identified in science (G.M. Velyaminov) do not have international legal personality, including within the framework of the IEP, i.e. international formations that are close (“pair”), similar to actual organizations, but fundamentally different from them in that they are not legally endowed with legal personality, usually operate, although with a certain composition of members, but without full-fledged constituent acts, do not have a formalized organizational structure, do not have the right to make legally qualified decisions binding member states. IN modern world the number of para-organizations, however, is increasing and practical significance their solutions can be quite large. Examples include the so-called "Big Eight", GATT (1948 - 1993), the Paris Club of Creditor States, intergovernmental commissions, often formed on the basis of long-term trade, economic and similar, usually bilateral, agreements.
The activities of the aforementioned G8 are of global significance, including in the sphere of international economic relations. Meetings at top level since 1975, initially representatives of seven leading states were held Western world(Great Britain, Italy, Canada, USA, Germany, France, Japan), and since 1997 - with the participation of Russia. Decisions made during meetings are of cardinal, although formally not obligatory, significance, including on issues of providing economic, financial assistance other countries, on problems of debt repayment by debtor countries, etc.
Integration associations of states. Integration can be defined as a process ensured by international legal means and aimed at the gradual formation of an interstate economic, and possibly political, unified, integral (integro) space based on a common market for the circulation of goods, services, capital and labor. To the greatest extent this process is carried out within the framework of the European Union. The forms and legal capacity of integration associations may be different. For example, the European Union does not have a legal personality, but its constituent members, the European Community and Euratom, do have a legal personality.
Preferential systems of various types, such as free trade zones (associations), other customs tariff preferential systems, are usually not endowed with legal personality. International economic conferences also do not have legal personality.
In Western doctrine there is a widespread opinion (in line with the above-mentioned lex mercatoria) on giving the so-called transnational corporations (TNCs), taking into account their enormous economic power, international legal status. This approach, however, is fundamentally unacceptable formally and legally and unrealistic in practice.
MEP sources fundamentally the same as in general in public international law.
A characteristic feature of MEP is the abundance of specific guidelines, having as their source primarily decisions of international organizations and conferences. These norms are not legally mandatory. But their legal significance is that they not only “recommend”, but also recognize the legality, in particular, of such actions (inactions) that would be unlawful in the absence of a recommendatory norm. For example, the 1964 UN Conference on Trade and Development adopted the well-known Geneva Principles of International Trade Relations and Trade Policy, which, in particular, contained a non-binding but extremely important recommendation that industrialized countries provide developing countries with preferential customs benefits (customs tariff discounts). ) as an exception from the most favored nation principle, without extending these benefits to developed countries. At the same time, a developed country itself is free to determine products, the size of discounts, as well as their provision in general. Suppose developed country "A" unilaterally grants, in accordance with the above recommendation, a certain import duty discount on oranges imported from developing countries. But between country "A" and another developed country - "B" there is a most favored nation treatment, due to which country "B" has every right to take advantage of this discount. However, in accordance with the above guideline, the discount given to developing countries lawfully does not apply to developed countries, including country “B”. In addition, the application of advisory standards, although optional, can be linked to certain mandatory conditions: for example, in the above example, benefits cannot be selectively provided only to some developing countries, but must be extended to each and every developing country.
In a formal sense, in the MEP, as in international law in general, the main source is multilateral And bilateral agreements. In the modern globalizing world, the center of gravity is gradually shifting towards multilateral economic cooperation.
Examples of multilateral, wide-ranging international economic agreements are the General Agreement on Tariffs and Trade - since 1948, and since 1994 - a whole range of multilateral agreements that are part of the World Trade Organization (WTO); other multilateral conventions on the terms of trade, as well as charters and other constituent acts of international economic organizations.
The most famous example of a conventional document of a constituent nature is the UN Charter, in which two chapters - IX “International Economic and Social Cooperation” and X “Economic and Social Council” are devoted primarily to international economic relations.
Special mention should be made international conventions on private law, sometimes called in scientific literature conventions of private international law, which aim to unify national private law regulation, but by their legal nature remain international treaties in the field of international economic relations, including, for example, the 1980 Vienna Convention on the International Sale of Goods. Many other international treaties, especially in the humanitarian and social spheres, are also aimed at regulating the rights and obligations of individual individuals. At the same time, as noted above, the norms of both international conventions on private law and other international treaties can act for private individuals of individual states, for domestic bodies and for their officials only indirectly, in the order of reception (transformation).
Among the international treaties regulating broad-based bilateral economic relations, it should be noted framework agreements of general political significance, including agreements on friendship (good neighborliness), cooperation and mutual assistance. Along with the main political obligations of the parties, they also stipulate obligations related to expanding economic cooperation, facilitating the conclusion of commercial transactions, etc.
Essential for the formation of MEP standards specific types of international economic agreements of an industry nature. These are, especially in the past, bilateral trade agreements (on trade and navigation), agreements on trade and payments, credit and clearing agreements. These are also agreements on the avoidance of double taxation, bilateral investment treaties (bilateral investment treaties - BIT's), agreements on general conditions for the supply of goods, agreements on customs, transport and transit issues, on the protection of intellectual property, etc.
Many may also have different legal meanings. decisions (recommendations, resolutions) of international organizations, adopted by them on the merits of cooperation within the framework of the statutory competence and on their own behalf.
A large number of recommendations on economic cooperation are accepted by UN bodies. Their decisions have great moral and political significance, because they apply to almost everything. world community states, but they (except for UN Security Council resolutions) do not have imperativeness. It should be noted here that significant documents, adopted by the UN General Assembly in 1974, as the Charter of Economic Rights and Responsibilities of States, the Declaration of a New International Economic Order and the Program of Action for the Establishment of a New International Economic Order (NIEO). These documents (with recommendatory force) proclaimed non-discriminatory, mutually beneficial principles of economic cooperation. While playing a generally positive role, declaring fair, non-discriminatory economic relations, the NMEP documents also contained untenable guidelines, such as, for example, the joint responsibility of all developed countries for the consequences of colonialism, the redistribution of the world social product in favor of developing countries through direct financial budget allocations, etc.
A special form of rule-making are the so-called codes, rules of conduct (codes of conduct, sets of rules, guidelines) adopted in the form of resolutions and within the UN. For example, the Set of Multilaterally Agreed Fair Principles and Rules for the Control of Restrictive Business Practices, adopted by the UN General Assembly in 1980, the draft Code of Conduct for Transnational Corporations developed at UNCTAD. Such international instruments have no more than advisory legal force, but, of course, can also be interpreted as having normative significance, based on the principle consensus facit jus- consent creates law.
Resolutions of the bodies of many international economic organizations, including certain specialized agencies of the UN, the WTO, as well as regional economic institutions, primarily the European Union, can, by statutory agreement of the participating countries, have and have not only recommendatory, but also mandatory legal force.
Interstate decisions economic conferences , especially those formalized in the form of final acts, are considered in theory as being able, depending on the agreements of the participating states, to have recommendatory or mandatory legal force (L. Oppenheim) and are even understood as decisions of one of the forms of a multilateral treaty (J. Brownlie). Among the documents of international conferences that are essential for the formation of the MEP, particularly important are those contained in the Final Act of the 1964 UN Geneva Conference on Trade and Development. Principles of international trade relations and trade policy that promote development; The Final Act of the Conference on Security and Cooperation in Europe, signed in 1975 in Helsinki.
International custom, similar to customary law in national legal systems, is now increasingly giving way to written, primarily contractual, law in public international law. This is especially true for such a relatively young field as international economic law. In the customary legal heritage inherited from the past, the classic of international law G. Schwarzenberger (Great Britain) sees only two principles of the MEP, based on custom: freedom of the seas in times of war and peace and a minimum standard for the treatment of foreigners if the principle of national treatment is not implemented. It is difficult to add any other examples to this.
General principles of law, mentioned in particular in Art. 38 of the Statute of the International Court of Justice are used widely both in the application and interpretation of IEP norms, for example lex specialis derogat generali(a special law limits the operation of a general law), etc.
Judicial precedents and doctrine in the MEP, as well as in international law in general, play a supporting role.
Since the MEP is a branch of public international law, the corresponding generally accepted basic principles of international law, his jus cogens.
Under legal a principle is understood, obviously, in a legal sense, firstly, as the general attitude and goal expressed in the “formula” of the principle itself. But by itself, this formula can really obligate us to little (for example, even the concept of sovereignty is ambiguous). Secondly, and this is the main thing, in addition to the “formula”, the principle contains a whole complex of especially agreed upon, specific legal norms, which contain real rights and obligations that ensure the fulfillment by the relevant subjects of law of the goals stated in the “formula”. In many ways, the understanding and interpretation of individual principles can also be revealed in international custom, in some legal acts of universal or regional significance, as well as subsidiaryly in judicial decisions and in authoritative doctrine (Article 38 of the Statute of the International Court of Justice).
Naturally, not all of the generally recognized principles of international law are equally applicable in the MEP. Of particular importance are:
- sovereign equality, understood primarily as legal equality (otherwise - equality), which does not mean a denial of the actual inequality existing in life and the desire to overcome it. And state sovereignty itself has not been understood by modern legal science and practice for a long time, unlike in past centuries, as an absolute right that is not limited by anything, indivisible and inalienable, non-delegable in its individual elements;
- non-use of force in international economic relations, it also includes the non-use of any kind of unlawful economic coercion and pressure (economic boycott, embargo, discriminatory measures in trade, etc.) by some states against other states;
84. INTERNATIONAL ECONOMIC LAW
International economic law– a branch of international law, the principles and norms of which regulate economic relations arising between states and other subjects of international law.
The subject of international economic law is international economic bilateral and multilateral relations between states and other subjects of international law. Economic relations include trade relations, as well as commercial relations in the areas of production, monetary and financial, communications, transport, energy, etc.
International economic law regulates relations of the first level - interstate economic relations. States establish the legal basis for the implementation of international economic relations.
The subjects of international economic law are the same subjects as in international law in general. States are directly involved in foreign economic, civil, legal and commercial activities.
The sources of international economic law are:
1) acts regulating the activities of international organizations in the field of economics (Agreement on the establishment of the Interstate Economic Committee of the Economic Union, 1994, etc.);
2) agreements on tax, customs, transport and other issues (Agreement between the Government of the Russian Federation and Estonia on cooperation in the field of standardization, metrology and certification 1994, Agreement between the USSR and the Swiss Confederation on tax issues 1986, Agreement between the Russian Federation and the Republic of Belarus on the Customs Union of 1995, etc.);
3) agreements on scientific and technical cooperation, including agreements on the construction of industrial facilities (Agreement on Economic and Technical Cooperation between the Russian Federation and Egypt, 1994);
4) trade agreements (Protocol between the government of the Russian Federation and Cuba on trade turnover and payments for 1995, etc.);
5) agreements on international payments and credits (Agreement between the Government of Russia and Belarus on non-trade payments, 1995);
6) agreements on the international sale of goods and other contracts on certain issues of a civil law nature (Convention on Contracts for the International Sale of Goods 1980, Hague Convention on the Law Applicable to the International Sale of Goods 1986).
The generally accepted principles can be applied to international economic relations arising between its participants. principles of international law:
1) mutual benefit, which assumes that economic relations between participants should not be enslaving, much less coercive;
2) most favored nation, denoting the legal obligation of the state to provide the partner state with the most favorable conditions, which can be entered for any third party;
3) non-discrimination, meaning the right of a state to be provided by a partner state with general conditions that are no worse than those provided by this state to all other states.
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