The concept and subject of regulation of international law. Concept, features, functions of international law UN General Assembly
private international law interstate
Private international law (IPL) as an independent legal science emerged relatively recently - in the middle of the 19th century. One of the founders is Joseph Storey, who in 1834 published a book entitled “Commentary on the conflict of laws.” In it, for the first time, an attempt was made to comprehensively analyze the problems of PPL and the term "private international law" was mentioned. formed due to the objective existence in the world of about two hundred legal systems of domestic legislation, each of which regulates the same social relations in its own way. element ", there is a need for additional legal regulation. Private international law regulates relations with a foreign element, in which one of the parties are legal entities and individuals. So, private international law is a set of norms of domestic law, international treaties and customs that regulate civil law, labor and other private law relations, complicated by a foreign element. Such legal relationships arise when concluding foreign trade transactions, licensing agreements, patenting inventions abroad, marriage between persons with different citizenship and in many other cases. Their regulation is possible both by concluding international treaties and by creating norms of domestic legislation. Relations with a foreign element can also be regulated by international and domestic custom (for example, the customs of a seaport), judicial and arbitration precedent (in countries where common law applies) and decisions of international organizations. The purpose of any legal regulation is to streamline public relations falling under the jurisdiction of a particular state. The uniqueness of private international law lies in the fact that the relations regulated by this branch of law are outside the jurisdiction of one state.
International law is a special system of law that exists alongside the system of national law. Features of international law are as follows:
- 1. International law regulates public relations of an interstate nature that go beyond state borders and are not included in the internal competence of the state.
- 2. The norms of international law are created by the subjects of international law themselves on the basis of the free expression of the will of equal participants in international communication.
- 3. Enforcement of international legal norms is carried out by the subjects of international law themselves (individually - through the institution of international legal responsibility, or collectively - through the International Court of Justice, sanctions of the UN Security Council, various committees and commissions).
- 4. Sources of international law are created by the subjects of international law themselves through free agreement and exist in the form of international treaties and international customs.
- 5. The subjects of international law are sovereign states; nations and peoples fighting for their independence and self-determination; international intergovernmental organizations; state-like formations.
As a special system of law, International law is distinguished by its own subject of regulation. Relations that are the subject of international legal regulation, according to their subject composition, can be divided into interstate and non-interstate.
TO interstate relationships include:
- 1) Between states (for example, relations on the reduction of armed forces);
- 2) Between states and nations fighting for independence (for example, assistance by states to the people to gain independence);
The norms of the MP are aimed, first of all, at the regulation of relations between the main subjects of interstate relations - states. As a matter of fact, until very recently the MP developed exclusively as an interstate one.
Non-interstate relations mean those relations in which the state is only one of the participants or does not participate at all. At present, the circle of participants in international communication has greatly expanded and many relations (for example, the fight against crime) have moved from the category of "matters falling within the internal competence of the state" into the sphere of "common interests of states."
Along with international interstate relations, there are non-state international relations- 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.
The subject of any branch of law should be understood, first of all, a certain type of social relations - the object of legal regulation of this branch. The subject of international law is international relations, the participants of which are states, international organizations, nations and peoples fighting for their independence, and some other subjects. In other words, international law regulates the relations that develop between states as subjects of public authority, bearers of state sovereignty.
It is important to remember that not all international relations are subject to international law. In principle, any public attitude can be called international if it is, to one degree or another, burdened by a foreign element. For example, the state can issue a license for a certain type of activity to a foreign legal entity, prosecute foreigners who have committed a crime, register marriages between citizens of different countries, conclude agreements with foreign public associations, etc. However, all these relations cannot be considered a subject of public international law, since in these cases the state acts exclusively on the basis of its domestic legislation and is not opposed by a similar entity. International public law, as its very name implies, regulates only those relations that develop in the sphere of public power between states as such, that is, between states as official structures authorized to exercise power functions. In practice, on behalf of the state, all actions in the international arena are performed by the head of state, the highest legislative and executive bodies, specially authorized bodies and persons.
According to the indicated criterion - the presence of public interest in a legal relationship - one should distinguish between the subject of legal regulation of public international and private international law. For private international law, a situation is typical when at least one party of the legal relationship (an individual or legal entity) acts in it in his personal capacity, and not on behalf of his state as a whole. In this case, it does not matter whether the given party is a state body or an official. For example, the head of state or the head of a diplomatic mission can act in the international arena as private individuals, and this or that state body - only on its own behalf (for example, when concluding a civil law contract).
At the same time, the sphere of interests of public international law may include not only political or military relations between states, but also those that are more characteristic of the sphere of private interest. States can conclude with each other contracts of purchase and sale, lease, money loan, etc. Despite the pronounced civil law nature of such agreements, they are governed by international public law, since in all these cases we are talking about states as such, and the legal relationship is based on an interstate agreement.
In this way, the subject of international law is international relations of a public-power nature, the participants of which are states as bearers of state sovereignty ... Part of the subject of public international law is relations with the participation of international intergovernmental organizations, nations and peoples fighting for their independence, as well as individual self-governing political-territorial entities.
At the same time, in the theory of international law, there is a point of view about the so-called combined subject of legal regulation, when a particular set of relations is regulated by both international and national law. The institution of the legal status of the individual, the institution of legal aid, legal regulation of investments, etc., are cited as examples. From this point of view, public international law can directly regulate relations between the subjects of national legal systems.
Numerous definitions of MT can be divided into two groups:
1. Definitions in which, as a distinctive feature international law indicates the way of formation of its norms. For example: "International law is a system of legal principles and norms that are created by states and other subjects of international law."
2. Definitions characterizing the considered branch of law on the subject of regulation. For example: "International law in its legal (normative) aspect, it is, first of all, a set of legal norms that regulate interstate (in a broad sense - international) relations ”.
There are various variants of definitions of this kind: to the objects of regulation, in addition to relations of states, some scholars refer to relations of international organizations; nations (peoples) fighting for their liberation; "Other subjects of international law", and this refers to the type of legal entities.
Sometimes, as a distinctive feature of international law, both the method of formation of the norms of international law and the subject of its regulation are indicated. "International law is a system of principles and norms that are applied in relations between all states, regardless of their social system."
Relations governed by international law are relations between states - bilateral and multilateral; between states and international intergovernmental organizations, primarily in connection with the membership of states in international organizations; between international intergovernmental organizations.
The specificity of international, interstate relations lies in the fact that in their content they go beyond the competence and jurisdiction of any individual state, become the object of joint competence and jurisdiction of states or the entire international community as a whole. There are three categories of cases (issues) that characterize the subject of international regulation:
Cases that are inherently interstate and cannotbelong to the internal competence of any state, cannotbe resolved by unilateral acts of the state, as they affect common interests. These are international security, disarmament, global ecological processes, the regime of the high seas, outer space.
Cases, although not related to general human interests, but resolvable only by joint efforts of two or more states on the basis of accounting mutual interests. This is the establishment and regime of the state border, the provision of legal assistance, dual citizenship, visa or visa-free entry procedures.
Cases, the settlement of which is within the internal competence of each state, but which, in order to solve them more efficiently, it is advisable to regulate by joint acts of states. This is the provision and protection of human rights and freedoms, assistance in the event of a nuclear accident or radiation emergency.
The originality of international law in comparison withdomestic:
Firstly, on the subject of regulation, since international law regulates public relations exclusively with the participation of a public foreign element, while domestic law regulates relations with the participation of international aspects only "including", giving priority to internal relations in a given society.
Secondly, if the subjects of domestic law are individuals and legal entities, state bodies, then the subjects of international law are mainly entities that have a public character in the international arena (states, nations and peoples, state-like entities, etc.).
Third, domestic and international legal systems differ in the dominant source forms. If the first is dominated by a normative act in the form of a law, then in the second, customs and contracts are preferable.
Fourth, different rule-making mechanism in these two legal systems. Since there is no legislative body in the interstate system, the norms of international law are created by the subjects of international law themselves, primarily by states, through an agreement, the essence of which is the coordination of the wills of states and other subjects of international law. In other words, if domestic norms are created “from top to bottom”, then international legal norms are created “horizontally”.
Fifthly, in contrast to local norms of national law, the nature of which depends on the social nature of a given state, norms of international law are mainlygeneral democratic character.
Sixth, since in the interstate system there are no judicial and executive bodies identical to those existing in states, the functioning of international law and, above all, its application, differ significantly from the functioning and application of domestic law.
1. International law: concept and subject of regulation. System of international law.
International law is a complex set of 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 domestic relations.
The subject of international law is 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 statelike entities;
Between international intergovernmental organizations.
2. Application of international law in the field of domestic
relationships.
3. Norms of international law: concept, features, order of creation, types.
Norms - these are generally binding rules for the activities and relationships of states and other subjects of small businesses, designed for repeated use.
International legal norms have their own characteristics:
Norms enshrined in the contract
Usual norms
In the subject of regulation. Regulates interstate relations and others.
In the order of its creation. The norm is created not as a result of command, but as a result of the alignment of interests.
By the form of attachment. Allocate:
There are no special rule-making bodies in the MP, the norms of the MP are created by the subjects of the MP themselves, mainly by the state.
In the process of creating norms - 2 stages:
1. reaching agreement on the content of the code of conduct
2. Expression of consent to be bound by this rule of conduct.
Classification of international law:
Imperative
Dispositive
Universal norms (not limited not geographically, nor by the number of participants)
Local regulations (limited; for example, CIS charter)
Regional
Non-regional
Multilateral norms
Bilateral norms
Binding norms
Prohibitive norms
Authority norms
Documented norms
Usual norms
By legal force
By scope
By the number of participants
By regulation method
By the form of attachment
4. The principles of international law: the concept and acts that consolidate and concretize them.
The principles of international law are the most important and generally recognized norms of behavior of subjects of international relations regarding the most important issues of international life, they are also a criterion for the legality of other norms developed by states in the field of international relations, as well as the legality of the actual behavior of states.
The main sources of the principles of international law are the UN Charter, the 1970 Declaration of Principles of International Law and the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.
There are ten universal principles in the doctrine of international law:
Principle of non-use of force and threat of force
For the first time, this principle was enshrined in paragraph 4 of Art. 2 of the UNPO Charter, later it was concretized in documents adopted in the form of UN resolutions, including the Declaration of Principles of International Law of 1970, the 1974 Definition of Aggression, the 1975 CSCE Final Act, the Declaration on Strengthening the Effectiveness of the Principle of Non-Threat of Force or its application in international relations in 1987. The duty of non-use of force extends to all states, not just UN member states.
Principle of settlement of international disputes by peaceful means
According to paragraph 3 of Art. 2 of the UN Charter. This principle is concretized in the 1970 Declaration of Principles of International Law. The UN Charter grants the parties to a dispute the freedom to choose such peaceful means as they deem most appropriate to resolve the dispute. Many states in the system of peaceful means prefer diplomatic negotiations, through which most disputes are resolved.
The principle of non-interference in matters within the internal competence of states
The modern understanding of this principle in a general form is fixed in paragraph 7 of Art. 2 of the UN Charter and specified in the 1970 Declaration on the Principles of International Law. International law does not regulate the issues of the internal political situation of states, therefore, any measures of states or international organizations with the help of which they try to prevent a subject of international law from resolving matters within its internal competence are considered interference.
The principle of the obligation of states to cooperate with each other
In accordance with the UN Charter, states are obliged to "carry out international cooperation in resolving international problems of an economic, social, cultural and humanitarian nature," and are also obliged to "maintain international peace and security and take effective collective measures to this end." The specific forms of cooperation and its volume depend on the states themselves, their needs and material resources, and internal legislation.
The principle of equality and self-determination of peoples
Unconditional respect for the right of every people to freely choose the paths and forms of their development is one of the fundamental foundations of international relations. In accordance with paragraph 2 of Art. 1 of the UN Charter, one of the most important goals of the UN is “to develop friendly relations between nations based on respect for the principle of equality and self-determination of peoples
The principle of sovereign equality of states
This principle is reflected in paragraph 1 of Art. 2 of the UN Charter, which states: "The Organization is based on the principle of the sovereign equality of all its Members." Since states are equal participants in international communication, they all have fundamentally the same rights and obligations.
The principle of fulfillment in good faith of obligations under international law
The principle of conscientious fulfillment of obligations is enshrined in the UN Charter, According to paragraph 2 of Art. 2 of the Charter, "all Members of the United Nations fulfill in good faith the obligations assumed under this Charter in order to ensure to all of them in the aggregate the rights and advantages arising from membership in the membership of the Organization."
The principle of inviolability of state borders
This principle regulates the relations of states regarding the establishment and protection of the border separating them and the resolution of controversial issues in connection with the border. The idea of inviolability of borders first received its legal form in the agreement between the USSR and the FRG of August 12, 1970, and then in the agreements between the People's Republic of Poland, the GDR and Czechoslovakia with the FRG. Since that time, the inviolability of borders has become a norm of international law. And then in the 1970 UN declarations on principles and the CSCE 1975.
The principle of territorial integrity of states
This principle was confirmed with the adoption of the UN Charter, which prohibited the threat or use of force against the territorial integrity (inviolability) and political independence of any state.
The principle of respect for human rights and fundamental freedoms
Indicated in the preamble to the UNPO Charter and in various declarations. They are an internal affair of the state.
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The Charter of the United Nations (Article 1) enshrines the main goals of international cooperation between states at the present stage, namely:
1. Maintain international peace and security and, to this end, take effective collective measures to prevent and eliminate threats to peace, as well as to suppress acts of aggression or other violations of the peace and to implement peaceful means in accordance with the principles of justice and international law to settle or resolve international disputes or situations that could lead to the disruption of the peace.
2. To develop friendly relations between nations based on respect for the principle of equality and self-determination of peoples, as well as to take other appropriate measures to strengthen global peace.
3. To carry out international cooperation in solving international problems of an economic, social, cultural and humanitarian nature and in the promotion and development of respect for human rights and fundamental freedoms for all, without distinction of race, sex, language, religion, etc.
The very content of these goals determines that they can be achieved only through communication between states in accordance with the principles of international law. Such international relations regarding the solution of economic, social, humanitarian and other problems determine the emergence of their regulator: legally binding rules, norms of behavior for the participants in these relations. There is a process of emergence of the norms of international law, which in turn regulate the relations of states and other subjects of international law among themselves.
At the beginning of the development of the subject of public international law, the legal norms on social relations that are regulated by them are often confused. It should be emphasized that this perception of legal norms is erroneous, not as a regulator, but as a subject of regulation. Such perceptions and such views can lead to the dissolution of law in factual relationships. Understanding this is essential for the development of the science of law.
It is also advisable to emphasize that the scope of international law is always narrow from the scope of international relations, and is much more important for the legal norms that regulate. In general, the law can only get closer to realities, but is never able to embrace them in their entirety. However, it is an effective regulator of international relations.
We use the term "international relations" in a broad sense. These are bilateral or multilateral relations between states, and various types of relations between states, international, intergovernmental organizations and power-supported formations and other participants in international communication.
The process of mutual influence and interdependence of international relations and international law has been the subject of research in the theory of international law for a long time. So, at the end of the XIX century. Professor of Kiev University (St. Vladimir) A. Eichelman, while preparing his "Reader of Russian International Law", noted that laws and treaties determine the international relations of Russia. And the Vienna agreements of 1815 created a "system of European international relations" after the defeat of the Napoleonic army.
Thus, it becomes obvious definitions, the subject of international legal regulation is international relations:
International economic relations;
International cultural relations;
International political relations;
International social relations and the like.
International relations regulated by the norms of international law are international legal relations, include the following types:
Relations between states are bilateral and multilateral, that is, covering the international community as a whole;
Relations between states and international intergovernmental organizations;
Relations between states and powers are structured;
Relations between international intergovernmental organizations;
Relations between states and other subjects of international law, etc.
Object of international law
To understand the essence of public international law, the question of its object is very important. This concept should not be confused with the object of law and legal relations that are part of the internal competence of the state. For international law, only those phenomena are of importance, about which international relations are established by sovereign states and other subjects.
The object of international law is everything about which the subjects of international law enter into legal relations on the basis of the principles and norms of international law.
Such an object can be:
Material and intangible benefits,
Action or refraining from action.
At the same time, the material and intangible benefits, the interests of states that are inseparable from them, mean, for example, common peace and security of peoples, mutually beneficial economic and other cooperation, and cultural development of peoples. This list is not exhaustive.
For example, the main event of the state visit to Ukraine of the President of the Russian Federation was the signing by the presidents of the two states of the Treaty of Friendship, Partnership and Cooperation (May 31, 1997). The treaty contains provisions on the status of the Black Sea Fleet on the territory of Ukraine. In this case, it is the parameters of the division of the Black Sea Fleet, mutual settlements and the conditions for its basing in Sevastopol that are the object of international legal relations between Ukraine and the Russian Federation.
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