Concept, subject and functions of international law. Concept, features, functions of international law International law concept subject of function
1. Concept, subject of regulation, functions, principles and sources of international law.
2. Subjects of international law. Succession in international law.
1. International law can be defined as a special system of law - a set of international legal principles and norms created by subjects of international law and regulating relations between states, peoples fighting for their independence, international organizations, state-like entities, and also, in some cases, relations with the participation of individuals and legal entities.
Like any legal system, international law has its own subject of regulation. Relations that are the subject of international legal regulation can be divided into interstate and non-interstate.
Interstate - relations between states, between states and nations fighting for independence. International legal norms are aimed, first of all, at regulating relations between the main subjects of international relations - states.
International law also regulates relations of a non-interstate nature - i.e. relations in which the state is only one of the participants or is not involved at all. Relations between states and international organizations, between international organizations, between states, international organizations, on the one hand, and physical and legal entities- on the other hand, as well as between individuals and legal entities.
The functions of international law are understood as the main directions of influence of international law on relations that are the subject of international legal regulation. The actual legal functions of international law can be considered stabilizing, regulatory and protective.
The stabilizing function is that international legal norms are designed to organize the world community, establish a certain international legal order and stabilize it.
The most important function of international law is regulatory. By establishing the international legal order and regulating social relations accordingly, international legal norms endow participants in international relations with certain rights and responsibilities.
The protective function is to ensure proper protection of international legal relations. In case of violation of international obligations, subjects of international legal relations have the right to apply liability measures and sanctions provided for by international law.
Basic principles of international law:
1. Principle sovereign equality states and respect for the rights inherent in sovereignty. According to this principle, all states enjoy sovereign equality in international relations, have equal rights and obligations, and are equal members of the world community. The concept of equality means that all states are legally equal and must respect the legal personality of other participants in international relations. All states enjoy the rights inherent in full sovereignty. They have the right to independently decide on participation in international conferences, organizations and international treaties. The principle of sovereign equality means that the territorial integrity and political independence of states are inviolable, and state borders can only be changed by agreement and in accordance with international law.
2. In accordance with the principle of non-use of force or threat of force, all states in international relations are obliged to refrain from the threat or use of force against the territorial integrity and political independence of other states.
The threat of force should not be used as a means of settling disputes between States. Wars of aggression are declared crimes against peace and humanity and entail liability under international law. The territory of a state cannot be the object of acquisition by another state as a result of the threat or use of force. No territorial acquisition resulting from the threat of force is recognized as legitimate by international law.
3. According to the principle of the peaceful settlement of international disputes, States are obliged to resolve their international disputes with other States by peaceful means and in a manner that does not jeopardize international peace, security and justice. Disputes may be resolved through negotiation, inquiry, mediation, conciliation, arbitration, litigation, recourse to international organizations or other means of the choice of states. If the parties do not resolve the dispute by one of the above means, they should seek to resolve their differences by other peaceful means.
4. Based on the principle of non-interference in the internal affairs of states, each state has the right to independently choose its political, economic, social or cultural system without interference from other states. In this regard, states do not have the right to directly or indirectly interfere in the internal or external affairs of another state; must not encourage subversive activities aimed at changing the system of another state through violence, and must not interfere in the internal struggle in another state, and refrain from providing assistance to terrorist or subversive activities.
5. The principle of territorial integrity of states implies that states must respect each other's territorial integrity. States are also obliged to refrain from turning each other's territory into an object of occupation or using force in violation of international law. No occupation or acquisition of territory is thus recognized as legal.
6. In accordance with the principle of the inviolability of borders, states consider all borders of each other as inviolable and must refrain from any demands or actions aimed at seizing part or all of the territory of another state.
7. One of the fundamental principles of international law is the principle of respect for human rights, which are considered as an integral part of a comprehensive system of international security. States are obliged to respect human rights and fundamental freedoms without distinction as to race, gender, language or religion. Respect for human rights is an essential factor for peace, justice and democracy, essential for friendly relations and cooperation.
8. The principle of the right to self-determination of peoples and nations means that all peoples have the right to freely determine, without outside interference, their political status and their economic, social and cultural development. States are required to refrain from any violent actions depriving peoples of the right to self-determination. However, States shall not encourage acts leading to the dismemberment or disruption of the territorial integrity or political unity of those States which have governments representing the whole people without distinction of race, creed or color.
9. The principle of cooperation between states. States must cooperate with each other. By developing cooperation, states must promote mutual understanding and trust, friendly relations among themselves, and improve the well-being of peoples.
The norms of international law are generally binding rules for the activities and relationships of states or other entities.
There are no special rule-making bodies in the field of international relations. The norms of international law are created by the subjects themselves, primarily by states. The process of creating norms of international law is a coordination of the positions of states, which includes two stages: 1) reaching agreement on the content of the rule of conduct; 2) mutually conditioned expression of the will of states regarding the recognition of the rule of conduct as mandatory.
The norms of international law are fixed in the form of certain legal sources. The source of international law is considered to be the form of expression and consolidation of an international legal norm.
Currently, in the practice of international communication, four forms of sources of international law have been developed: international treaty, international legal custom, acts international conferences and meetings, resolutions international organizations.
2. The features of international law as a special system of law predetermine the specifics of international legal personality and, ultimately, the qualitative characteristics of subjects of international law. The most important feature of a subject of international law is its right to carry out independent international actions, including the creation of agreed upon international legal norms.
International legal personality can be defined as the legal ability of a person to be a subject of international law. International legal personality by its origin is divided into factual and legal. Accordingly, there are two categories of subjects of international law: primary (sovereign) and derivative (non-sovereign).
The primary subjects of international law are states and fighting nations - by virtue of their inherent state or national sovereignty are recognized as bearers of international legal rights and obligations. Sovereignty (state or national) makes them independent from other subjects of international law and predetermines the possibility of independent participation in international relations.
The legal source of legal personality for non-sovereign subjects of international law is their constituent documents. Such documents for international organizations are their charters, adopted and approved by subjects of international law (primarily primary ones) in the form of an international treaty.
States are the main subjects of international law. International legal personality is inherent in states by virtue of the very fact of their existence. States have an apparatus of power and control, have territory, population and, most importantly, sovereignty.
The legal personality of fighting nations, like the legal personality of states, is objective in nature, i.e. exists independently of anyone's will.
International organizations form a separate group of subjects of international law. We are talking about international intergovernmental organizations, i.e. organizations created by the primary subjects of international law. International intergovernmental organizations do not have sovereignty, do not have their own population, their own territory, or other attributes of a state. They are created by sovereign entities on a contractual basis in accordance with international law and are endowed with certain competences recorded in the constituent documents (primarily in the charter).
Some political-territorial entities also enjoy international legal status. This category of subjects includes the Vatican and the Order of Malta because they most closely resemble mini-states and have almost all the characteristics of a state.
The issue of recognition is closely related to the problem of international legal personality. Recognition in international law is an international legal action of a subject of international law, by which he states the existence of a legally significant event, fact or behavior of a subject of international law. Through the act of recognition, a state agrees to the corresponding changes in the international legal order and international legal personality. Recognition, in particular, states the entry of a new state or government into the international arena and is aimed at establishing legal relations between the recognizing and recognized states, the nature and scope of which depends on the type and form of recognition. Recognition as a legal fact is the basis for all subsequent relations between subjects of international law. Diplomatic and consular relations are established after recognition.
There are two forms of recognition: de jure recognition and de facto recognition.
De facto recognition is official recognition, but incomplete. This form is used when they want to prepare the ground for the establishment of relations between states or when the state considers de jure recognition premature. Today, de facto recognition is quite rare.
De jure recognition is full and final recognition. It presupposes the establishment of international relations between the subjects of international law in full and is accompanied, as a rule, by a statement of official recognition and the establishment of diplomatic relations.
Succession of states is usually called a transition taking into account the basic principles of international law and rules on the succession of certain rights and obligations from one state to another. In addition to states, international organizations are the subjects of succession in international law.
Succession of states means the replacement of one state by another in bearing responsibility for international relations any territory. In legal succession, a distinction is made between: the predecessor state (the state that was replaced by another during the succession) and the successor state (the state that replaced the predecessor). The grounds for the issue of legal succession may be social revolutions, decolonization, unification or division of states, or the transfer of part of the territory to another state.
Relations that are regulated by international law are usually identified with the concept of “international legal relations”. Such relationships can be divided into several main groups.
- 1. Relations between states(bilateral, local, universal). Of particular importance are relations that affect the interests of the entire international community as a whole.
- 2. Relations between states and MMPO. These relations arise primarily in connection with the membership of states in such organizations.
- 3. Relations between states and GPOs; relations between states and nations fighting for independence.
- 4. Relations of international organizations with each other.
All these types of relations represent interstate relations, since they are in one way or another mediated by states. Interstate relations – These are any public relations of power with the participation of the state. Legal relations acquire the character of international interstate due to the fact that they go beyond the competence and jurisdiction of one state and become the object of joint competence and jurisdiction of two or more states or the entire international community as a whole. Such relations always have a public legal nature.
Along with international interstate relations, the subject of regulation of international law is a certain group of international relations of a non-state nature (relations between INGOs, between individuals and international organizations).
The most complex from the point of view of legal regulation are mixed international relations of a state-non-state nature (diagonal relations). These are relations between states and non-traditional subjects of international law: between states and individuals, states and INGOs. Such relations arise mainly in connection with the implementation by non-traditional subjects of international law of the quality of their international legal personality. The particular complexity of these relations lies in the fact that their participants are obviously unequal partners - sovereign states (the main subjects of international law that have international legal personality to the maximum extent) and, for example, individuals who have a limited amount of international legal personality.
International interstate relations, which are the main subject of regulation of international law, can be divided into several groups depending on the issues involved.
- 1. Problems that are interstate in nature objectively not within the competence of domestic bodies and related to universal human values and interests. By definition, they cannot be resolved nationally - international security, disarmament, global environmental processes, the regime of international territories.
- 2. Problems not related to universal human values but objectively being interstate. Their solution is possible only if there is cooperation between two or more states - establishing state borders, providing legal assistance, dual citizenship, visa or visa-free entry procedure.
- 3. Problems that objectively fall within the internal competence of the state but of interest to the entire international community. Resolving these problems is possible within the framework of the independent activities of individual states, but it is immeasurably more effective to resolve such issues at the level of international cooperation - protecting human rights, combating international crimes, assistance in the event of a nuclear accident or radiation disaster.
Thus, subject international law are any public legal relations that in one form or another directly affect the interests of states.
Functions international law are inextricably linked with the subject of its regulation. The functions of international law are the main directions of its impact on the interstate environment.
- 1. Strengthening a stable system of international relations is the most important social function international law.
- 2. Legal regulation of international relations is the main legal function of international law.
- 3. Countering the emergence of tendencies of destabilization and the use of force in international relations is the main protective function of international law.
- 4. Internationalization of international relations - expansion and deepening of ties between states, development of the international division of labor, international market goods, services and labor.
- 5. The information function of international law is the transfer of accumulated experience of rational behavior of states.
International law Legal system – Elements:
Subject of international law
International Law – special system rights
MP as a system of law – this is a set of principles and norms created by certain subjects of international relations and regulating international relations.
International law has a complex system, which is due to the combination of general legal norms-principles and general legal normative complexes, on the one hand, and industries as homogeneous sets of norms in accordance with the subject of regulation, as well as intra-industry institutions, on the other.
1) basic principles of international law, which form its core and are of decisive importance for the entire mechanism of international legal regulation;
2) institutions common to international law, each of which includes a set of rules for a specific functional purpose - a set of rules on international legal personality, a set of rules on international law-making, a set of rules on international law enforcement (implementation of legal regulations), a set of rules on international legal responsibility.
The second category includes branches of international law, i.e., complexes of homogeneous and established norms, according to the subject of legal regulation. They are classified both on the grounds that are accepted in domestic law (with some adjustments) and on the characteristics inherent specifically in international legal regulation. The list of industries is not entirely based on objective criteria. The generally recognized branches include (without touching on the issue of names for now) the following branches: law of international treaties, maritime law, international space law etc.
Within industries there are sub-sectors And legal institutions as regulatory mini-complexes for specific issues regulation. Thus, in international maritime law - groups of norms regulating the regimes territorial sea, continental shelf, exclusive economic zone, high seas, seabed area beyond national jurisdiction.
Recognition of states.
In the MP, recognition is understood as an act by which one party states the existence and legal personality of the other.
Methods of forming states:
1) As a result of fundamental changes in the economic and political system.
2) The unification of several states into one.
3) Division of one state into several states.
4) As a result of the separation of part of the territory from the state and the formation of independent states on it.
5) Formation of a new state on the site of a former colony.
The moment from which a new state becomes a subject of an international enterprise.
Theories:
1) Constructive theory - only after recognition by all (most) existing states.
Recognition in modern MP does not play a significant role. The fact of recognition by existing states is important only for the exercise of rights as a subject of international law.
Methods of state recognition:
1) De Jure (full) - establishment of diplomatic relations with the new state, exchange of diplomatic missions and consulates.
2) De Facto – conclusion of international treaties on various issues.
Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (all peoples have the right to self-determination, by virtue of this right they freely establish their political status and pursue their economic, social and cultural development)
In this act, the principle of self-determination is moral and political.
The principle of self-determination is protected by international law.
The only condition for the self-determination of a nation is the presence of a special political body. (the right of states to respect)
10. Legal personality of individuals: there are no rules in the MP that would prevent individuals from acquiring the rights represented by the MP. Modern standards MPs establish the rights, duties, and responsibilities of individuals. A draft Code of Crimes against the Peace and Security of Mankind is being developed. Today, the statute of the international tribunal is applied in offenses related to the prosecution of persons responsible for violations of humanitarian law in the territory former Yugoslavia. There are many conventions on the prevention and punishment of crimes international character. The range of international norms that provide an individual with legal opportunities to ensure and protect them has expanded. The contracts also protect civil, family, and labor relations. European Convention for the Protection of Human Rights and Freedoms, Part 3 of Article 46 of the Constitution of the Russian Federation: everyone has the right to appeal to interstate bodies for the protection of human rights and freedoms if all domestic remedies have been exhausted.
Objects of succession
International treaties
State property
Membership in international organizations (continuity theory)
The Russian Federation is the successor of the USSR in membership of international organizations. And also in other situations, the Russian Federation is the legal successor (under contracts, obligations, and so on).
There are unwritten (customary) norms in accordance with which there are issues that are resolved by the charters of international organizations.
General Assembly UN.
Sessional body (every 3rd Tuesday in September). M. convene a special session, at the request of the UN Security Council or the majority of UN members (within 15 days). M.b emergency session - in connection with a threat to peace, an act of aggression, at the request of the Security Council or a majority of members (within 24 hours). Each state sends its representative, each delegation - 1 vote.
Competence:
a) any issues within the scope of the charter, even those related to the competence of other bodies.
d) elects non-permanent members of the Security Council, members of ECOSOC and the Trusteeship Council,
e) appoints judges of the local court,
f) appoints the UN Secretary General on the recommendation of the Security Council,
g) approves the budget,
h) consider issues regarding contributions from UN members. Decision-making procedure: is it important? - qualification majority (2/3), others? – simple (1/2+1).
UN Security Council.
A permanent body. Consists of 15 states (5 permanent + 10 non-post), elected for 2 years. The Security Council acts on behalf of and in the interests of all UN member states.
Competence:
a) is responsible for international peace and security;
b) investigates any situations that may lead to debates or disputes between states, qualifies the situation as a threat to the peace or a violation of the peace or an act of aggression.
Depending on the qualification, the following measures are taken:
1) temporary (resolutions that remind of the need to comply with the principle of peaceful resolution of disputes, procedures, methods);
2) measures not related to the use of armed forces (sanctions - complete/partial interruption in economic relations, cessation of railway, air, sea communications). Resolutions are mandatory, and a sanctions committee is created. If a person under the jurisdiction of a UN member state violates the resolution, then the committee informs the state, and it takes action;
3) measures related to the use of military forces (UN military forces).
Decision making: important - 9 members (permanent 5), others - any 9. If the state abstains, then the vote can pass, and if it is against, then a veto is imposed.
International Court of Justice.
Main Court UN body in The Hague. Carry out its activities on the basis of the charter, which includes the statute of the international court. Disputes between international state authorities: violation of MP, compensation for damage, violation of specific international agreements. The court gives advisory orders. 15 independent judges, who are elected and work in their personal capacity, are not representatives of the state.
Jurisdiction: Disputes can be considered only when the parties accept the jurisdiction of the court.
Recognition could be expressed:
1) at any time the state may declare that it recognizes the jurisdiction of the court as compulsory, but may exclude certain disputes,
2) a specific international agreement may provide that disputes regarding the adoption of an international agreement will be considered by the international court. The state can make a reservation that it does not recognize, but it could be withdrawn,
3) on a specific dispute. Any dispute, with the consent of the parties, may be referred to the local court. Faculty of Law, that is, not all disputes, but only with consent. The court's decision is mandatory.
Collapse of the USSR 12/8/1991 Belarus, Ukraine, Russia. On the same day, an agreement was adopted on the creation of the CIS, which was signed by three states.
12/21/1991. – protocol, which was signed, except for Georgia, by all former republics of the USSR (12).
01/22/1993 - adoption of the CIS Charter, entered into force on 01/22/1994. Composition - 12 reps.
Basic goals:
· collaboration in all areas;
· creation of a single economic space;
· ensuring and protecting human rights;
· ensuring freedom communication between citizens of member states of the CIS;
· maintaining international peace and security, including disarmament measures;
· peaceful resolution of disputes and conflicts within the state community;
· provision of legal assistance to state members of the CIS.
CIS structure:
1. Council of Heads of State– sessional body. At the level of heads of state in the CIS, the principle decides. issues related to the CIS countries.
2. Council of Heads of Rights– sessional body. At the level of heads of government, it coordinates the cooperation of the Joint Executive Command of the CIS member states.
3. Council of Ministers affairs– sessional body. Carries out coordination of the external forces of the CIS member states.
4. Coordination and Consulting Committee operates constantly. Implements the current CIS project. Prepares proposals and draft documents within the framework of the CIS countries.
5. Econ. court considers disputes between state members of the CIS arising from the agreements of the ek-go har-ra, and gives an interpretation of the provisions of such agreement.
6. Human Rights Commission develops draft international agreements in the field of human rights. M. consider ind. appeals → recommended character decision.
7. Interparliamentary Assembly– sessional body. Delegations of national parliaments are working. Introduced only in 1994. Meetings - in S-P.
8. Secretariat– adm.-tech. organ. Ensures the work of all other CIS bodies. Headed by a secretary. Acts on behalf of and in the interests of the CIS with other international organizations and other states. He's in Minsk.
The official language is Russian.
Council of Europe.
Created by Western European states in 1949, open to other European states. Implementation on the basis of the charter. Competence: considers issues representing common interest, dedicated to social-ec, cultural sphere, issues of science, education, rights sphere, administrative issues, ensuring the protection of human rights, any issues except military ones. States may be included that accept obligations under the charter.
Requirements for candidates: 1) must recognize the rule of law, 2) each state provides all persons on its territory with rights and freedoms, that is, sign the Convention on the Rights and Fundamental Freedoms of the individual. A state can be excluded from the Council of Europe if it violates its obligations under the charter, if it does not guarantee rights and freedoms on its territory. Membership in the Council of Europe could be suspended. RF – member of the Council of Europe 1992.
The procedure for accepting a state: application for membership, study of the state.
Pages of CE bodies:
Committee of Ministers
Parliamentary Assembly (PA)
Congress of Local and Regional Authorities
Commissioner for Human Rights
Secretariat.
The PA CE initiated the issue of suspending Russia's membership in the CE, but the decision was not made by the Committee of Ministers.
1. PA CE - for example, a delegation (2-18 people, in the Russian Federation - 12). The body is sessional, has broad competence, accepts declarations on any issues.
2. The Committee of Ministers is a non-pollinary body that monitors state participants in fulfilling their obligations to the Council of Europe. Controls the implementation of the decisions of the European Court on human rights.
3. Congress of local and regional authorities (created in 1994, was not initially provided for in the Council of Europe). Coordinates the department, promotes cooperation in this area among the Ss - state members of the CE and ATE.
4. Commissioner for Human Rights - introduced in 1995, studies situations of gross and mass violations of human rights in member states of the Council of Europe, draws up a report and, for example, submits it to the PACE. If it was violated, then:
Terminate membership
Will suspend membership
Wag your finger.
5. Secretariat – adm.-tech. the body that provides the work of all other organs, headed by the general. secretary.
The official languages of the Council of Europe are French, English.
Preparation and adoption of the text of the agreement. Authority.
Development may be through diplomatic channels (without meetings) or through negotiations (with a small amount participants), within the framework of international organizations or international conferences, each state sends its representative to participate in various MDs. He is given powers- a document certifying the person’s right to participate in the conclusion of the MD. Powers are not required for the head of state, the head of government, or ministers of foreign affairs - they do not require powers to carry out all actions to conclude an MD. The head of diplomatic missions, the head of missions to international organizations, and the head of delegation at a conference do not require authority only when developing and adopting the text of an MD. The list of persons is in the Vienna Convention of 1969. In the Federal Law of the Russian Federation “On the Ministry of Internal Affairs of the Russian Federation” the list is expanded (the head of the federal executive authority for interdepartmental agreements).
The conference begins with the surrender of powers, for example, to the chief secretary; to a person determined by the rules of the conference, the Secretary General (within the framework of an international organization).
Text acceptance method:
2) consensus - can drag on for many years until an agreement is reached.
Interpretation of m/n dogs.
This is the clarification of the actual meaning and content.
VK 1969 establishes principles of interpretation:
1. must be interpreted in good faith,
2. terms should be given their usual meaning,
3. For interpretation, the context is used, including the preamble and all documents adopted for this agreement.
The Vienna Convention provides additional Wed-va interpretation: conditions for concluding international contracts, preparatory materials. But these auxiliary means are used if the interpretation leads to ambiguous or absurd conclusions.
Types of interpretation:
1) authentic - that which is given by the state, signed agreement (in special agreements, protocols). This body has the highest power.
2) tol-e m/n org-mi,
3) one-sided interpretation - in interpretative statements - various state organizations.
4) scientific interpretation is carried out by the department of scientists, scientific teams.
War and international law
War is a phenomenon of organized collective violence. War is one of the manifestations of conflicts between human societies and the power structures of societies. War or the conduct of hostilities is governed by the law of armed conflict. The law of armed conflict is a subfield of international humanitarian law. The process of codifying armed conflicts took hundreds of years. The law of armed conflict draws mainly on the concept of war in the 19th century, when rules were established to regulate international conflicts and to protect the rights of military personnel. Not much has changed lately. Currently, international humanitarian law continues to develop towards improved protection civilian population and strengthening the role of legal norms applicable to non-international conflicts.
In general, now the word “war” is not used in international law. A war between two states is called, in accordance with international law, an armed conflict of an international character. Civil war Accordingly, an armed conflict of a non-international character is called.
The literal and doctrinal differences between these conflicts do not coincide, but what is common to both approaches is the difference in legal regulation. If an international armed conflict is regulated by the entire set of norms of international humanitarian law, then a conflict of a non-international nature falls under the scope of Article 3 and the Second Additional Protocol common to all Geneva Conventions.
Literally interpreting the provisions of the Geneva Conventions, by international conflict we mean any interstate armed conflict, as well as the struggle of peoples against colonial domination, foreign occupation or racist regimes.
Non-international conflicts mean a conflict on the territory of one state between the armed forces of that state and anti-government armed groups or other organized armed groups that, under responsible command, exercise such control over part of its territory that allows them to carry out continuous and coordinated military actions.
In a situation of war, there is massive use of violence by the armed forces in an organized and coordinated manner. The presence of a number of norms makes it possible to distinguish an armed conflict from chaos, for example, combatants must be organized into combat units, subordinate to a higher command, and the command gives orders, ensures the maintenance of discipline, including submission to the norms of humanitarian law.
Back in 1928, war was outlawed in international relations; it was established that this term was not applicable and the term armed conflict should be used.
The UN Charter limits the use of force between states and only in case of aggression can armed force be used for self-defense. An armed conflict is only a transitional period; the methods used to conduct it should not make the restoration of peace impossible. Avoid unnecessary or disproportionate suffering or destruction to a particular military advantage.
It is important to distinguish between military and civil conflicts. A military operation is legal only if it serves as a means to achieve a specific military goal. The weapons used must be fit for purpose and not cause needless destruction and suffering. Prohibited types of weapons, for example: nuclear, chemical, anti-personnel mines, self-exploding bullets.
Combat tactics must be capable of not only distinguishing between civilian and military operations, but also providing assistance to military casualties during combat.
The Geneva Conventions have been signed by all states of the world.
The Statute of the International Criminal Court provides for liability for crimes against humanity that can be committed by states individually, but Russia has not signed or ratified this statute.
Open sea.
OM – all parts of the sea that are not included in the exclusion. ek-kuyu zone, ter-noe sea or int. sea waters k.-l. state Legal regime established by the 1982 convention. OM - space, which refers to the m/n territory, →, all states have the ability to exercise freedom: shipping, flights, laying cables and pipelines, construction of artificial islands, installations and structures, harvesting, scientific research. OM d. used for peaceful purposes, i.e. It is prohibited to test weapons, conduct military maneuvers and exercises. Sea vessels in the OM are subject to the jurisdiction of the flag state. If a ship has several nationalities, then it is recognized as having no nationality. This ship may be stopped and inspected by any warship, which can be carried out in relation to the ships of the St. state Warships are immune. A warship, in relation to any vessel, can take action if there are sufficient grounds to believe that the vessel is engaged in piracy or the slave trade, or unauthorized things, if the flag is not raised and the refusal to do so. Any coastal state may pursue hot pursuit if the coastal state has reason to believe that the ship has violated the laws and regulations of that state. Such persecution should begin internally. sea waters or the terrestrial sea or in the adjacent zone, if the ship violated the laws and rules of the coastal state regulating the legal regime of the ex-zone and contiguous shelf. The pursuit must be carried out continuously until the vessel enters the Terrestrial Sea of another state. This right is exercised by warships or aircraft.
Seas and oceans.
Legal regime established by the 1982 convention. Bottom = area that begins after the contiguous shelf. The area and its resources (all solid, liquid or gaseous mineral resources, including polymetallic, nodules in a state of immobility, located on the surface of the bottom and in its depths) are the common property of all people. No state can claim sovereignty over part of the seabed; no one state, f/u/l can appropriate parts of the bottom; The seabed authority acts on behalf of the people. The procedure for its creation and registration by the 1982 Seabed Convention. The body is an organization, whose members are participants in the 1982 convention, within the framework of which the state implements and controls activities in the area. Seabed resources are not subject to alienation, but minerals may be alienated on the terms provided for in the contract by the local authority and the relevant state, f/y/l. The structure of the body includes an enterprise that carries out current activities, control over activities that are carried out at the bottom. The bottom is open for scientific research. The bottom is partially demilitarized: the placement of nuclear weapons and any weapons of mass destruction on the bottom and its depths is prohibited. States are responsible for preserving seabed resources. For this purpose, international agreements are concluded. Section IX of the 1982 Convention is dedicated.
69. Legal regime of space and celestial bodies:
Agreement “On the principles of the State Council for the exploration and use of outer space, including the Moon and other celestial bodies” 1967, Agreement “On the State Council on the Moon and others” celestial bodies"1979. But the Russian Federation is only in the first. Space space is a m/n territory, it is open for use and research for all states, free for scientific research, which is carried out for the benefit and interests of all states. in, and the results are the property of all people. Outer space is, partially, a demilitarized territory, and it is impossible to carry out tests of nuclear weapons and other mass destruction there on the basis of the treaty “on the prohibition of testing of poisonous weapons in the atmosphere, outer space” space, under water" 1963. The Russian Federation participates in it. The Moon and other celestial bodies are completely demilitarized. It is forbidden to place military bases and conduct military exercises (the Moon Agreement of 1979). According to the demilitarization, the bilateral international agreement between the USSR and the USA “on the limitation of systems” is valid missile defense"1972.
70. International legal regime natural resources includes the living resource regime and the mineral resource regime.
According to the Convention on the Conservation of Antarctic Marine Living Resources of 1980, any fishing is carried out in accordance with the principles of: 1) preventing a reduction in the number of any population to levels below those that ensure their sustainable position; 2) maintaining ecological relationships between harvested and associated populations of marine living resources; 3) preventing changes in the marine ecosystem that are fundamentally irreversible over two or three decades. To implement the goals and principles of the Convention, a Commission for the Conservation of Antarctic Marine Living Resources is established from its participants.
The 1972 Convention for the Conservation of Antarctic Seals requires that certain species of seals not be killed or captured in the area, except as strictly specified in the Convention.
The 1988 Convention on the Regulation of the Development of Antarctic Mineral Resources was postponed because the measures it provided for ensuring environmental safety were considered insufficient.
The Protocol on Environmental Protection to the Antarctic Treaty was signed in Madrid on October 4, 1991. Its members describe Antarctica as a natural reserve dedicated to peace and science. The Protocol prohibits any activity in Antarctica in relation to mineral resources, with the exception of scientific research (Article 7). The ban will remain in effect until a new regime for the development of mineral resources is developed, taking into account the acceptability of such activities in the interests of all states.
The competence of the consultative meetings provided for by the Treaty includes the exchange of information, mutual consultations, and the development of recommendations to the governments of the participating countries on the adoption of measures to promote the implementation of the principles and goals of the treaty, including measures regarding: 1) the use of Antarctica only for peaceful purposes; 2) assistance scientific research in Antarctica; 3) promoting scientific cooperation in Antarctica; 4) facilitating inspections; 5) issues relating to the exercise of jurisdiction; 6) protection and conservation of Antarctic living resources. Recommendations are subject to approval by all countries party to the Treaty. The recommendations that have entered into force are an integral part of the international legal regime of Antarctica.
Article V of the Antarctic Treaty prohibits nuclear explosions in Antarctica and the disposal of radioactive materials in the area. The First Consultative Meeting of the States Parties to the Treaty recommended that the governments of their countries exchange information regarding the use of nuclear equipment and technology in the specified area.
Each State party to the Consultative Meetings has the right to appoint an unlimited number of observers, who must be citizens of the States appointing them. Any observer has complete freedom of access to all areas of Antarctica at any time.
The territory of this continent, as well as the stations, installations and equipment within it, ships and aircraft at points of unloading and loading of equipment, materials or personnel are always open to inspection. Aerial observation can be carried out at any time over any area of Antarctica. Observers draw up reports on the results of monitoring, which are sent to the states participating in the Consultative Meetings.
States are obliged to inform each other in advance of all expeditions to that continent undertaken by their ships or nationals, as well as of all expeditions organized in or departing from their territories, of all stations in Antarctica occupied by their nationals, of any military personnel or equipment intended for departure to Antarctica.
Observers and scientific personnel, as well as personnel accompanying them, are in Antarctica under the jurisdiction of the state of which they are citizens.
71. International air law represents a set of rules governing relations between states in the field of use of airspace, organization of air services, commercial activities and ensuring the safety of civil aviation. It covers two aspects: 1) legal regulation international flights in the airspace of a particular state; 2) legal regulation of flights in international airspace.
Each state has complete and exclusive sovereignty over the airspace within its land and water area. In other words, the airspace within the specified limits is an integral part of the territory of the state. The legal regime of the state's airspace is determined by national legislation. However, at the same time, the state also takes into account those international obligations that relate to international air connections. A state must follow the generally recognized principles of international law, in particular the principles of sovereign equality, non-interference in internal affairs and cooperation, which obliges it to manage its airspace taking into account the interests of other states, i.e. not to violate their rights within their sovereign territory and within international airspace.
The main source of international air law are international treaties. The first multilateral treaty that established the foundations of this branch of international law was the Paris Convention of 1919. It recognized the full exclusive sovereignty of a state over its airspace. At the same time, the Convention established the right of “innocent flight” of foreign aircraft in the airspace of other states.
72. International environmental law- This is a set of international legal principles and norms governing relations regarding the protection of the natural environment, its rational use and reproduction, regulating the cooperation of states in this area in order to ensure an ecosystem favorable for human life.
States have sovereignty over natural resources within their territory. The principle of inalienable sovereignty was reflected in a number of international documents, in particular in the UN General Assembly resolution “Inalienable sovereignty over natural resources” of 1962, in the Declaration on the Environment adopted at the Stockholm Conference of 1972 on problems of the human environment: “States have sovereign the right to develop its own resources in accordance with its own environmental policies.”
States must rationally use natural resources, taking into account their potential, the need for reproduction, avoiding irreversible negative consequences. They must not change the natural conditions on their territory if this has a harmful effect on the nature of other states. This requirement is a concretization of the general principle of law “use yours in such a way as not to harm another.” In relation to international environmental law, this principle was formulated in the Stockholm Declaration of 1972: “States have a responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond national jurisdiction.” It is also expressed in international treaties, in particular in the Convention on the Prohibition of Military or Any Other Hostile Use of Means of Influence on natural environment 1976, in the 1979 Convention on Long-Range Transboundary Air Pollution.
States bear international responsibility for environmental damage. The embodiment of such responsibility has become arbitration and court decisions on interstate disputes regarding damage as a result of pollution.
International law also enshrines such provisions as freedom of environmental research, promotion of international environmental cooperation, assessment of transboundary environmental consequences, exchange of information and mutual consultations.
International law: concept and subject of regulation.
International law– set legal norms, created by states and interstate organizations through agreements, and representing an independent legal system, the subject of regulation of which is interstate and other international relations, as well as certain intrastate relations. Legal system – this is the totality of all legal phenomena in the state. Elements: legal system; lawmaking; law enforcement; legal consciousness; legal ideology.
Subject of international law– international relations – relations that go beyond the competence and jurisdiction of any state. Includes relationships:
· between states – bilateral and multilateral relations;
· between states and international intergovernmental organizations;
· between states and state-like entities;
· between international intergovernmental organizations.
Topic 1. Concept, subject of regulation, system of international law.Introduction.
The concept of international law.
The concept of the system and structure of international law.
Subject of regulation of international law.
Functions of international law.
International law and ideology.
Introduction . The internal development of any state is impossible without international cooperation. International relations is a very diverse and broad area, including the most diverse aspects of the activities of states, governments, various government bodies, as well as public and other organizations of all types (political, economic, cultural, scientific, professional, etc.). To regulate this complex of relationships, various forms and methods are used, a different arsenal of means acting both independently and in interaction with each other. Social forms and methods include political, legal, moral, organizational (in cases where they are social in nature) means of regulation, as well as the so-called international politeness.
Thus, the legal regulation of international relations represents one of the forms of possible regulation of this type of organizational human activity, based on legal means of ensuring their implementation and known mainly by its systemic totality as international law.
1 question . .
International law is a system of law that is different from the legal systems of specific states. International law operates in the interstate system and is its subsystem. Its main components are states, peoples and nations fighting for their independence, interstate international organizations, international conferences, associations of states that are not international organizations, various international bodies (international courts, international commissions, international arbitrations), international law and others social norms operating in this system, relationships and interactions between the listed components.
The main components of the interstate system are states-sovereign entities. All other components in the interstate system (with the exception of nations and peoples fighting for independence) are entities created in one way or another by states.
In the interstate system there is no supreme power, there are no legislative, executive and judiciary, which exist in states. Therefore, the stable functioning of this system as a whole, the state of international relations and the effectiveness of international law primarily depend on states, as well as international organizations and their activities, since states have real power and capabilities, acting within the framework of international legal norms, to ensure compliance and fulfillment of international obligations.
According to the traditional view, states are free to take any action except those limited by their own consent. According to this approach, the rules of international law bind a state only if it has agreed to them.
So way , international right - is a set of legal rules, contractual and customary, developed as a result of an agreement between states and regulating relations between participants international communities. This is a special system of law, differing from the domestic one in the subject of regulation, subjects, objects of law, in its sources, methods of rule formation and in methods of ensuring norms.
2
^ The emergence of international law.2.1. The problem of the emergence of international law should be considered depending on how to approach the understanding of this discipline. If we understand international law as “the law between peoples” in a narrow sense, then we must recognize that it arose even before the emergence of states. If we approach it as “law between states,” then we must associate its emergence with the emergence of the first states. At the same time, in scientific literature There is also no consensus on the last statement, since some scientists associate the emergence of international law with the emergence of the first slave states (for example, Soviet scientists), others with the emergence of Christianity (Charles de Vischer) or the formation of large centralized states (L. Oppenheim).
The Soviet science of international law connected the question of the periodization of its history with the doctrine of socio-economic formations and historical eras, on the basis of which it distinguished between the international law of the slave, feudal, bourgeois and socialist periods. In Western science, there are attempts to determine the periodization of the history of international law on the basis of the development of ideology or purely legal phenomena. For example, the following periodization is proposed: 1) from antiquity to the 1st World War; 2) between two world wars; 3) the period after the 2nd World War.
Today in Russian science international law also has a tendency to move away from the previous (Soviet) periodization of the history of international law (for example, Lukashuk I.I.). It should be borne in mind that this issue requires a very careful approach and must be associated with the periodization of the world-historical process, since it is an integral part of the latter.
The nature of the emergence and stages of development of international law reflect the main patterns social processes, patterns of emergence and development of state and law.
The formation of the first norms and institutions of international law dates back to the time of the decomposition of the primitive communal system and the formation of slave relations.
Before the emergence of the state, international law did not exist, just as law did not exist. This, however, did not mean that there were no social norms at all that regulated relations not only within a particular clan or tribe, but also between them. Such norms existed everywhere; they concerned issues of conducting negotiations between tribes and tribal unions, receiving ambassadors, concluding intertribal agreements, and waging war.
The main feature of international law of antiquity is regionalism (i.e. its development within individual regions - Mesopotamia, Egypt, India, China, Greece and Rome), which persisted until the end of the 1st millennium AD. Each region developed its own specific institutions, but at the same time they also had common features (the prevalence of customs, the development of the law of war, embassy law, contract law, the institution of dispute resolution, etc.).
We can talk about systematic international relations of slave states in relation to the end of the 3rd - beginning of the 2nd millennium BC. The peculiarity of these relations was their focal nature, i.e. Initially, international relations and the norms governing them developed in those areas globe, where civilization arose and centers of international life of states arose. These are primarily the Tigris and Euphrates valleys. Nile, areas of China and India, the Aegean and Mediterranean seas. The international norms applied between states in these areas were originally of a religious and customary nature.
The oldest international treaties that have reached us are related to the relations between the states of Mesopotamia (23rd century BC), and then to the relations between Ancient Egypt and the Hittite power. By 1278 BC. refers to a peace and alliance treaty between Egyptian pharaoh Ramses the second and the king of the Hittites, providing not only for the cessation of hostilities, but also for providing each other with assistance against an external enemy and in the event of a slave uprising; The extradition of fugitive slaves was also stipulated.
Information about the legal norms that developed between individual principalities and state entities in India also dates back to approximately this time. Many of them were later enshrined in the “Laws of Manu,” which spoke about methods of warfare, diplomatic negotiations and some types of alliance treaties; in particular, it was forbidden to kill the unarmed, prisoners and wounded, and to use poisoned weapons.
In China at the turn of the 2nd and 1st millennium BC. The institution of “travelling ambassadors” developed, who carried out relations between individual princes and enjoyed immunity. In 546 BC, one of the first treaties was concluded to resolve international disputes through arbitration.
Somewhat later, international legal norms began to form in ancient Greece. Here, due to the faster development of intertribal and then interstate political and economic relations, they received greater detail and diversity.
History has preserved to this day many treaties concluded by Greek states. They provided for the exchange of prisoners of war and captured territory, and assistance in the event of an attack by third states. The development of exchange led to the conclusion of special trade agreements, which later began to include provisions on the treatment of foreigners (the right of settlement, personal freedom, the right to purchase real estate). For the purpose of patronizing foreigners, a special institution of proxenia was formed in Greece. And in the Roman Empire, a special instrument of patronage appeared, which was no longer carried out by private individuals, but by government officials - the so-called. "Praetori peregrinus". The customary law that emerged on the basis of their activities later formed an independent and rather extensive branch of Roman law.
Already in the early periods of Greek history, fairly regular relations were maintained between individual city-states through messengers and heralds. Later, the institution of embassies crystallized from this custom. The ambassadors received a special certificate for conducting negotiations (a board folded in half - a diploma).
The norms of slaveholding international law were further developed in the practice of external relations of Rome, especially in the last three or four centuries of its existence.
Initially, relations with foreign states were carried out by a special college of specialized priests. Later in the 3rd-2nd century BC. The leading role begins to be played by ambassadors-legates, who were elected by the Senate, as well as messengers (nuncios). During the imperial period, diplomatic agents were appointed by the head of state and reported only to him, and not to the Senate. With the strengthening of the military and political power of the Roman Empire, a very complex and solemn ceremony for receiving foreign ambassadors began to be developed.
The norms governing the conduct of war, which was considered as a legitimate means of resolving disputes, were formed under the influence of the unlimited arbitrariness of the strong: it was believed that the losers of the war became completely dependent on the winner. The latter enslaved the vanquished, seized their property, killed those whom he did not want to be taken captive, and imposed tribute or indemnity on the civilian population. The usual norm among the Hittites and Assyrians was the forced relocation of conquered peoples, the mass murder of civilians, and the plunder of conquered settlements. Norms on neutrality during war were also common, for example in Ancient Greece. the law of war had a religious connotation in the ancient world; for example, in Rome, waging war was considered a just cause, because served for the benefit of Rome and therefore was pleasing to the gods. In this regard, the carefully developed procedure for declaring war in Rome was based on appealing to the gods as witnesses to the opening of hostilities.
The nascent institution of the law of international treaties had a religious character. Its important element was the religious oath. it included a solemn promise, a sacred vow to observe the treaty, and an appeal to the deity to intervene if it was broken. It was believed that the gods were, as it were, invisibly present at the conclusion of contracts and became their participants, and this was supposed to facilitate the implementation of the agreement.
Practice has developed certain types of agreements: peace, alliance; about mutual assistance; boundaries; arbitration; trade; on the right to marry foreigners; on neutrality, etc. The contractual practice of ancient states contributed to the formation of the rule “pacta sunt servanda” - contracts must be respected.
After the Roman state took possession of the entire Mediterranean and extended its political dominance far beyond the Apennine Peninsula, a system was formed to regulate the international relations of the Roman Empire with foreign states, as well as the provinces subject to it. This system was called "jus gentium" - "law of peoples" and represented a combination of civil law norms and international legal norms.
2.2. In the Middle Ages, Western Europe and Byzantium became the main regions for the development of international law. The main event that influenced the development of international law during this period was the Congress of Westphalia in 1648. Treaty, embassy law and the law of war are further developed.
The formation of the norms of new, feudal international law, due to the difference in historical conditions, was not the same in Western and Eastern Europe, in China, India and state entities American continent. This period is associated with the development of international relations of feudal states in the process of their formation, overcoming fragmentation, the emergence of large feudal class monarchies, as well as with the beginning of the formation of absolutist states. Most active development Feudal relations took place on the European continent, as well as among the countries of North Africa located in the Mediterranean basin, in the Near and Middle East.
During the period of early feudal states (5-9 centuries AD), the norms of international law represented a kind of conglomeration of the most ancient tribal customs and norms that had previously developed in the practice of slave states, mainly imperial Rome. At the same time, these norms, under the influence of the statehood of the new formation, were enriched and further developed. First of all, this concerned the nature of the norms of international law and their religious overtones.
International law began to change significantly in the 10th and 11th centuries. AD, when independent feudal states took shape. Relations between them over the course of 3-4 centuries are characterized by the fact that each feudal lord, firstly, possessed within his territory the fullness of both political power, and property power (the land and everyone located and living on it were considered his property); secondly, there was a complex hierarchy, i.e. the subordination of some feudal lords to others (the relationship of vassalage). As a result, international legal relations, not only in fact, but also formally, were not relations of equal subjects, and international law itself turned out to be largely dissolved among the norms of civil (private) law.
These relationships were formally sanctified by the power and authority of the church. In conditions of feudal fragmentation, the international authority and influence of the church (especially Catholic in Western Europe, Muslim among Arab countries, Orthodox in Byzantium and Rus') were very high. Pope Gregory 7 in the 11th century. was the first to attempt to create " world state"under his authority. The Roman popes, in their influence on international law, relied on canon law, which consisted of decrees of church councils and papal decrees.
With the formation of class monarchies, the role of the church began to decline; the development of international law was increasingly influenced by domestic legislation and customary law, as well as the reception of Roman law. The norms of embassy and contract law became most widespread during this period. Diplomatic missions quickly become permanent. Gradually, provisions are being made about the rank of diplomatic representatives, about international languages, and ceremonies. procedure for presiding and voting at international conferences. Special departments of foreign affairs emerge (the first appeared in Japan in the 7th century; in Europe, they began to be created in the 15th century). The rules on the immunity of ambassadors apply to their property and occupied premises.
Following the development of embassy law, the norms of consular law begin to form. Consuls were appointed from among the merchants, initially in the states of North Africa and the Middle East. They had the right of jurisdiction over their fellow citizens, and also carried out some diplomatic functions.
The rules of maritime law are also beginning to develop. they were codified in a number of codes, of which the so-called were the most famous. Oleron scrolls of the 12th century, “Consolato del Mare” (marine collection) of the late 13th century, the Visbian Maritime Code, which regulated navigation in the North and Baltic Seas between the Hanseatic League, Scandinavia and Russia at the beginning of the 15th century. In the 16th-18th centuries. the norms of maritime law undergo strong changes, the claims of feudal states (mainly Spain and Portugal) to property in relation to the high seas were resolutely rejected, the principle of the high seas was proclaimed, which from the 17th century. receives universal recognition. Dutch revolution of the 10th century, English Revolution XVII century and Great French Revolution XVIII century signified a transition to a new story.
2.3. A new period in the history of international law is associated with the development of the idea of sovereign equality of states, enshrined in the Westphalian Treaty of 1648, as well as the approval of new principles and norms of international law based on the concepts of the natural school of law. Great value for the development of international law during this period were the decisions of congresses and conferences held in the 19th century. – Vienna 1815, Paris 1856, Berlin 1878. congresses, as well as the Berlin 1884-1885. and The Hague 1899 and 1907 conferences. Some rules of international law adopted in these forums are still in effect today.
The impetus for the approval of new international legal norms was the consolidation of natural law ideas in the Declaration of the Rights of Man and the Citizen of 1789. in the constitutions of France 1791-1793, in the Declaration of International Law presented to the French Convention in 1793 by Abbot Gregoire. Instead of the sovereignty of the monarch, the principle of sovereignty of peoples is put forward.
The humanization of the rules of warfare is based on a number of new provisions. On the initiative of Russia, in 1868, the Declaration on the Prohibition of Explosive Bullets was signed in St. Petersburg. In 1864, the Geneva Convention on the Sick and Wounded is adopted. The Treaty of Utrecht of 1713 regulates the issue of protecting the property of civilians.
Since the first quarter of the twentieth century. the foundations of modern international law are being formed. Scientists associate the beginning of this period with the beginning (1914) or end (1919) of the 1st World War. It is believed that this period begins with October Revolution 1917 This period lasts until 1945, when the UN Charter was adopted and is characterized by the abolition of some old and the emergence of a number of new principles of international law. Moreover, some of these principles are undergoing significant transformation. We can also associate the development of international law at this time with the activities of the League of Nations.
2.4 Neither a slave society nor early Middle Ages did not single out the science of international law. International legal issues were considered in the context of philosophical and socio-political problems, often clothed in moral and religious norms (Confucius and Lao Tzu, Plato and Aristotle, Seneca and Marcus Aurelius). Only from the end of the 12th century. there is a separation of international law from theology. IN Western Europe In a bitter struggle, theological and canonical trends emerged, which prepared the beginning of the 16th century. the rise of the Spanish school of international law. Representatives of this school F. Vittoria and A. Gentili substantiated the idea of sovereign equality of subjects of international law. And yet only Hugo Grotius can be called the creator of the science of international law. In his book “On the Law of War and Peace,” which was the first systematic presentation of international law of that period, the science of international law acquired a completely independent character. Thus, he divides law into divine and human, and human, in turn, into domestic and international.
In other regions, the development of international legal knowledge was approximately similar.
In the XVIII-XIX centuries. many outstanding philosophers (Spinoza and Hobbes, Montesquieu and Rousseau, Kant and Hegel) turned to clarify the essence and nature of international law, its role in society. Initially, the ideas of natural law were dominant, whose supporters defended progressive ideals. They were opposed by the positive school (I.Ya. Moser), who believed that the task of this science was only to collect, study and comment on existing norms.
At the same time, the so-called continued to develop. the Grotian direction (E. de Vattel, G.F. Martens), whose supporters believed that international law is based both on the laws of nature and on the agreement of peoples - tacit (custom) or explicitly expressed (treaty). By the end of the 18th century. The science of the history of international law is beginning to play an increasingly important role. At the beginning of the 19th century. international law was considered one of the main branches of jurisprudence. Hegel played an important role in its formation, whose works were of great methodological importance. With his teaching about historical progress as the movement of mankind towards freedom, based on the internal dialectical contradictions of social development, he overcame the abstract nature of the school of natural law. The most authoritative and widespread direction throughout the 19th century. it was positive (historically positive). Among other directions, the “national” school founded by P. Munchini deserves attention. She focused her efforts on substantiating the right of nations as an association of free people with a single community of language, territory and government to independent state existence and international legal personality. In addition, in the 19th century. The doctrine of equality of participants in international legal communication has received widespread development. But it was limited only to “civilized” countries.
Question 3 . System and structure of international law.
The interstate system is presented in the legal literature as a much broader, voluminous concept than the system of interstate relations.
The interstate system is a global combination and unification of such basic international socio-political categories (elements or components) as states (with any political regime and form of government), peoples and nations, interstate international organizations, international conferences of states that are not international organizations (Movement non-alignment, “Group of 77”, etc.), various international bodies (international commissions, international courts, international arbitrations, etc.), international law and other social norms of connections and relations between subjects regulated by generally recognized principles, norms of international law. Consequently, this definition of the interstate system is very conditional; it does not claim to be dominant or priority (it is a subjective judgment and concept). In the legal literature of the later Soviet period, the concept of “interstate system” is interpreted as a “system of interstate relations”, or as an “international community of states”. This concept is still recognized by some legal scholars today, however, it seems to me rather narrow and incomplete. Many modern authors share a similar opinion.
International relations in legal literature are generally considered to be relations between states (for example, economic, cultural ties, trade, etc.); between states and interstate organizations (for example, the entry of a state into the international organization “NATO”, “UN”); between parties of different states; companies (e.g. joint ventures, airlines, construction companies); between private individuals of different states (for example, on the accession of citizens from neighboring countries to Russian citizenship, or Russian citizens to citizenship of the United States and other countries).
Thus, the concept of an interstate system seems broader than the concept of international relations.
In the legal literature, the issue concerning the concept of an interstate system pays much attention to its important feature or property - integration, characterized by close international cooperation of subjects of international law (states, nations and peoples, international, interstate organizations) in various spheres of international relations, including human rights, as well as the interconnection and interdependence of all other elements of the interstate system. An example of integrative properties is the impact of the United Nations within the interstate system on the process of decolonization. Thanks to international cooperation and support of states, within the framework of the UN, many states in Africa, Latin America and others gained their independence in the process of national liberation wars. It is unlikely that any individual state could achieve any success in this process, and the colonial powers would never voluntarily allow their colonies to gain independence without armed resistance to the liberating forces. The role of the UN is to resolve such issues through organizing and conducting peacekeeping operations, effective cooperation between states in various areas of international relations, including human rights, nations and peoples in the struggle for their national independence. It should be noted that the integrative properties of the interstate system are the result of the interaction of all its components, and not just states.
Interstate international organizations (universal and regional) are important in this integration process.
The interstate system itself is a relatively weakly integrated holistic system. Its subjects - states - are only partially integrated into the interstate system, existing as independent sovereign entities, as part of society.
IN modern period the degree of integration of states in the interstate system is increasing.
An environment much larger in scale than the interstate system is society as a whole, as a broader system. There is a constant interaction between this environment and the interstate system, in which the influence of the environment dominates (i.e., strong influence).
Some events, for example (events in Chechnya, non-governmental organizations in Tajikistan, opposition) are considered as part of the environment. These events have an impact on the interstate system (often bringing UN troops into hot spots).
Enormous changes continue to occur both in society as a whole and in the intergovernmental system. Currently, there is a significant influence of international law and international organizations in the interstate system, thereby promoting integration processes in the interstate system.
Changes are also taking place in the interaction between the environment itself and the interstate system. For example, the influence of individual public organizations, including non-governmental ones (Green Party), supporters of the struggle for peace. However, there is also the opposite effect, for example, the influence of the interstate system on internal events in states is increasing. When characterizing the interstate system, international lawyers place the main emphasis on states that are sovereign entities. States are the main subjects of international law (participants in international legal relations).
Thus, we should conclude: interstate system is a global combination and unification of such basic international socio-political categories (elements or components) as states (with any political regime and form of government), peoples and nations, interstate international organizations, international conferences of states that are not international organizations (Movement non-alignment, “Group of 77”, etc.), various international bodies (international commissions, international courts, international arbitrations, etc.), international law and other social norms of connections and relations between subjects regulated by generally recognized principles, norms of international law.
The interstate system consists of:
from sovereign states;
peoples and nations;
interstate international organizations;
international conferences;
associations of states that are not international organizations (independent);
international bodies;
international law;
social norms (morality, religion).
Firstly, the distinction they make between internal and foreign policy, which is not always consistent with the principles and norms of international law and corresponds to them;
Secondly, the difference in political regimes existing within specific states, as well as forms of government;
Thirdly, different levels of socio-economic development of states, as well as other circumstances or factors (commitment to the principles and norms of international law in resolving international conflicts and disputes).
An equally important feature of the interstate system is the absence in it of a supreme power capable of regulating the lawful and unlawful actions (inactions) of subjects of international law. The absence of supreme power is of fundamental importance for ensuring the sovereignty of states and their independent domestic and foreign policies. There is no state in the world that would act as the supreme authority regulating various international relations that develop both between states and between other subjects of international law. However, this does not mean that subjects of international law must violate the principles and norms of international law, as, for example, this happens in Yugoslavia, when NATO member states flagrantly violate the generally recognized principles and norms of international law by using armed aggression against this state. In this regard, it should be noted that the international community has certain mechanisms of influence on the aggressor state in order to exert measures of international influence on it and stop aggression (the above-mentioned means and methods include: negotiations, various international legal methods, including conclusion international agreements, containing mutual obligations of the parties, the implementation of peacekeeping operations, etc.).
At the same time, international practice knows cases when a specific state, which has a fairly high level of socio-economic development and has a strong military potential, tries to dictate its terms to a specific state or even several states. This is often accompanied by serious violations of the principles and norms of international law (acts of armed aggression), which leads to an aggravation of the international situation in the world as a whole. Conflicts of this kind must be resolved in civilized ways within the framework of the UN Charter and with the direct participation of the UN Security Council, as well as the warring parties.
Thus, all of the above features of the modern interstate system express its specificity in relation to current international legal realities.
System international rights - this is an objectively existing integrity of internally interrelated elements: generally recognized principles, norms of international law (contractual and customary law), decisions of international organizations, advisory resolutions of international organizations, decisions of international judicial bodies, as well as institutions of international law (the institution of international recognition, the institution of succession in relation to treaties, the institution of international responsibility, etc.).
All mentioned elements of the system constitute branches of international law (maritime, diplomatic, law of international treaties, etc.). Each branch is an independent system, which can be considered a subsystem within the framework of an integral, unified system of international law.
It should be noted that the list of industries is not entirely based on objective criteria. Both abroad and in the domestic science of international law, discussions continue regarding generally recognized branches of international law, touching on the grounds for the constitution of branches and their specific characteristics, their names and the internal structure of individual branches.
Currently, the generally recognized branches of international law include (without touching on the issue of name) the following branches: the law of international treaties, the law of external relations (diplomatic and consular law), the law of international organizations, the law of international security, international humanitarian law (“human rights law”). "), international maritime law and others.
Question 4
Subject of international legal regulation are political, economic and other relations between states:
A) between states - bilateral and multilateral;
B) between states and international intergovernmental organizations, primarily in connection with the membership of states in international organizations;
C) between states and state-like entities that have a relatively independent international status;
D) between international intergovernmental organizations.
In previous periods, relations between states and national political organizations that led the struggle of peoples (nations) for independence, as well as relations of such national political organizations with international organizations, were widespread.
All of these types of relationships can ultimately be qualified as interstate relations, since every international intergovernmental organization is a form of association of states, political organization a struggling nation acts as an emerging state, and a state-like formation has a number of characteristics of a state.
Along with international interstate relations, there are international relations of a non-state nature– between legal entities and individuals of different states, as well as with the participation of international non-governmental organizations and international business associations.
A special category of mixed international relations of a state-non-state nature includes relations of states with legal entities and individuals under the jurisdiction of other states, as well as with international non-governmental organizations and international economic associations.
When considering international, interstate relations, it should be taken into account that they acquire such a character because their content goes beyond the competence and jurisdiction of any individual state and becomes the object of the joint competence and jurisdiction of states or the entire international community as a whole.
At the same time, another aspect deserves attention: the characteristics of international law as an integral part of the emerging global legal complex, which includes, along with international law, the legal systems of states, i.e. intrastate, national legal systems. This means coordination, interaction, within the framework of which certain norms of international law are involved in the regulation of intrastate relations, are directly applied in the sphere of the legal system of the state.
Question 5
Functions of international law:
coordinating- norms of international law establish generally acceptable standards of behavior in various areas of relationships;
regulating- manifests itself in the adoption by states of firmly established rules, without which their coexistence and communication are impossible;
security- international law contains rules that encourage states to follow certain rules of behavior;
protective- lies in the mechanisms established in international law that protect the legitimate rights and interests of states.
In international law and doctrine, instead of the term “obligations,” the term “obligations” is used, since the corresponding obligations become such only if there is agreement with them by a potential participant in a social relationship regulated by international legal norms.
Objects international rights- material and intangible benefits, actions of subjects or abstinence from actions, that is, everything about which subjects enter into legal relations with each other.
Question 6
International law and ideology The essence of the phenomena is interconnected. They both relate to normative phenomena. Politics and law serve as the most important means of implementing ideological concepts. In turn, politics and law need ideology to provide themselves with social support, as well as theoretical understanding of the tasks facing them. Ideology influences international law both through politics and directly. It includes political, legal, moral, philosophical ideas, principles, and guidelines. Ideology also includes international legal consciousness, which plays an important role in the functioning of international law. For example, during the Cold War, a certain part of Western international lawyers had a strong point of view according to which, due to fundamental differences in ideology, agreements between socialist and capitalist states were impossible. Suffice it to recall the very indicative ideological postulate of US President R. Reagan that the USSR is an “evil empire.” However, Soviet jurists also paid “reciprocally”. The extreme point of view, perhaps, are the statements of A. Hitler: “...Agreements can only be concluded between counterparties who stand on the same ideological platform.”
In turn, MPP influences ideology with its goals, principles, norms, as well as the practice of their implementation. In addition, the IPP regulates the content of ideological activity in the international arena. Propaganda capable of creating or increasing a threat to peace or disruption of peace is prohibited. Nazi ideology, racism, etc. have been outlawed. Currently, there are words about the “de-ideologization” of international relations and law. This should be understood as the elimination from international disputes about the superiority of one or another social system, as well as methods of ideological warfare. As for the struggle of ideas, it remains and serves as a factor in the further development of world development.
Constant interaction also exists between international universal morality and international law . Often, moral norms turn into norms of MSP, or, more precisely, norms that correspond to the norms of universal morality arise in MSP. For example, crimes against peace and humanity were condemned for a long time only by moral standards. However, after the First World War, they gradually turned into the principles of MPP, finally taking shape after the Second World War. “In essence, the entire UN Charter, this the most important document international law, is based on some simple laws of morality and justice... The fact cannot be underestimated that the spirit of modern international law expresses the age-old aspirations of peoples.” 1 It is also significant that the fundamental principle of international law - the principle of conscientious compliance with obligations - is at the same time a key principle of international morality, the international “code of gentlemanly conduct” of a state.
Currently, the role of international law is increasing, since the world community is in a state of another transformation after the elimination of the post-war bipolar model international development . On the one hand, the processes of regionalization of interstate relations are intensifying; on the other hand, a global information space is developing, which increasingly unites the world community; on the third hand, new contradictions are growing in relations between the major powers, which lead to the emergence of new forms of cooperation and the redistribution of political influence; on the fourth hand, the role of international support mechanisms, which generally worked successfully during the Cold War (UN, CSCE, etc.) and so on, is gradually weakening. In these conditions, international law can act as a tool for maintaining order in the world community, ensuring continuity between positive achievements in international cooperation XX century and the upcoming model of international relations of the XXI century. That is why the UN General Assembly at the 60th plenary meeting on November 17, 1989 adopted resolution 44/23 on the proclamation of the 90s. XX century Decade of International Law.
Conclusion. International law is a system, not just a set of norms. The system is based on generally accepted principles and norms that have the highest legal force. The main legal function of international law is to regulate interstate relations.
The characteristic features of this right, its features are generated precisely by the object of regulation, special kind public relations with the participation of sovereign states. This determines both the content of the norms and the entire mechanism of the law.
1 Shishkin A.F., Shvartsman K.A. 20th century and moral values of humanity.- M., 1968.- P.231-232.
The concept of international law. Subject of regulation of international law.
Main features of modern international law.
System of international law. Public international law and private international law.
1. The concept of international law
International law - this is a set of legal norms created by states and interstate organizations through the conclusion of agreements and representing an independent legal system, the subject of regulation of which are interstate and other international relations, as well as certain intrastate relations.
The prototype of international law is the term developed in Roman law jus gentium(“law of peoples”). But interstate law really exists, since it is not created by peoples directly, but mainly by states as sovereign political organizations, and is focused primarily on regulating interstate relations, and is ensured primarily by the efforts of the states themselves.
Monistic theory, dualistic theory.
International law as a special legal system
In domestic science, a characterization of international law as a special legal system has developed. This refers to the real coexistence of two legal systems: the legal system of the state (domestic legal system) and the legal system of interstate communication (international legal system).
The distinction is based, first of all, on the method of legal regulation: domestic law is created as a result of power decisions of the competent authorities of the state, international law - in the process of coordinating the interests of various states.
It is also essential subject of legal regulation: in domestic law, these are relations within the jurisdiction of the relevant state; In international law, these are predominantly interstate relations and other relations that go beyond the jurisdiction of a single state, requiring joint regulation by several or many states or the international community of states as a whole.
So, in the generally accepted understanding, international law is an independent legal system. According to Part 4 of Art. 15 of the Constitution of the Russian Federation “generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system.” Thus, in the constitutional interpretation, international legal norms adopted by the Russian Federation are an integral part of the legal system of the state.
How to resolve this discrepancy? The point is, obviously, that the wording of the Constitution proceeds from a broad interpretation of the legal system, without limiting it to a set of legal norms, i.e., law, if we keep in mind the established terminology.
In the legal literature there are attempts at truncated perception and restrictiveinterpretations Part 4 Art. 15 of the Constitution of the Russian Federation and Art. 5 Federal Law dated July 15, 1995 “On international treaties of the Russian Federation” as applicable; to certain sectors, which, due to their specificity, allegedly do not allow the direct application of international legal norms and their priority application in cases of discrepancy with the norms of relevant laws. This approach to criminal law has become the most widespread, which is due to the fact that the Criminal Code of the Russian Federation, as stated in Part 2 of Art. 1, is only “based” on international norms; law, and the fact that it does not contain a provision on the application of the rules of an international treaty in cases of regulation other than in the Criminal Code of the Russian Federation.
This approach is not consistent with the draft Code of Crimes against the Peace and Security of Mankind. In this document, approved by the UN International Law Commission and awaiting conventional implementation, the principle of criminal liability is expressed quite clearly: “Crimes against the peace and security of mankind are crimes under international law and are punished as such, regardless of whether they are punishable under domestic law.” (clause 2 of article 1).
This provision is based on the fact that the UN International Law Commission has recognized the general principle of the direct applicability of international law with regard to personal responsibility and punishment for crimes under international law.
Arguments in favor of the concept have been developed in theory demarcation law created by the state, i.e. domestic, national law, and law applied by the state and in the state. The second complex is much broader and more complex than the first, because, along with the state’s own law, it covers those norms that are outside the scope of national law that are subject to application or can be applied in the sphere of domestic jurisdiction. This refers to the norms of interstate law adopted by the state and intended for internal regulation, and the norms of foreign law, the application of which in specified situations is permitted by separate laws and international treaties.
Subject of regulation of international law
Relations governed by international law determine international legal relations, which include relationship:
a) between states - bilateral and multilateral, among which relations covering the international community of states as a whole are of particular importance;
b) between states and international intergovernmental organizations, primarily in connection with the membership of states in international organizations;
c) between states and state-like entities that have a relatively independent international status;
d) between international intergovernmental organizations.
All of these types of relations can ultimately be qualified as interstate relations, since each international intergovernmental organization is a form of association of states. The political organization of a struggling nation acts as an emerging state, and a state-like entity has a number of characteristics of a state.
Along with international interstate relations, there are international relations of a non-state nature- between legal entities and individuals of different states (the so-called relations “with a foreign element” or “with an international element”), as well as with the participation of international non-governmental organizations and international business associations.
In a special category mixed international relations of a state-non-state nature It is possible to highlight the relations of states with legal entities and individuals under the jurisdiction of other states, as well as with international non-governmental organizations and international economic associations.
When considering international interstate relations, it should be taken into account that such character they acquire because their content goes beyond the competence and jurisdiction of any individual state and becomes the object of the joint competence and jurisdiction of states or the entire international community as a whole.
It is argued that the norms of international law bind the state as a whole, and not its individual bodies and officials, and the competence and behavior of state bodies and officials responsible for ensuring the implementation of international obligations are regulated by the norms of domestic law. A clarification is necessary here: the norms of international law not only oblige, but also provide powers, that is, they authorize. As for the essence of the problem, in real international legal practice the addressee of these norms is not only the state itself. Many international treaties directly formulate the rights and obligations of very specific government bodies and even officials, indicate very specific executors of treaty norms, and directly place responsibility on them for the implementation of obligations. Moreover, there are international treaties, certain provisions of which are directly addressed to individuals and various institutions (legal entities) as potential bearers of rights and obligations established by treaty provisions.
International law exists, as it were, in two dimensions and therefore can be characterized in two aspects.(1) It was formed and functions as part of an interstate system, covering heterogeneous components of relationships within the international community. Accordingly, this approach predetermines the understanding of international law as a regulator of international relations, foreign policy actions of states as a legal complex that exists in the interstate system and only in it.
(2) At the same time, another aspect deserves attention: the characteristics of international law as an integral part of the emerging global legal complex, which includes, along with international law, the legal systems of states, i.e., intrastate, national legal systems. This refers to coordination, interaction, within the framework of which certain norms of international law participate in the regulation of intrastate relations and are directly applied in the sphere of the legal system of the state.
Historically, there has been a distinction between two categories - public international law and private international law. Public international law is a regulator of interstate relations. Private international law traditionally includes the rules of behavior and relationships between participants in international relations of a non-state nature, referring primarily to private law relations complicated by a foreign element. Such rules are contained both in the domestic law of the states under whose jurisdiction the relevant individuals and legal entities are, and in international treaties and international customs.
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