What elements of the system of international law are named. International law
System international law is a complex legal norms, characterized by fundamental unity and at the same time ordered division into relatively independent parts (sectors, sub-sectors, institutions).
The material system-forming factor for international law is the system international relations which it is intended to serve. The main legal, moral and political system-forming factors are the goals and principles of international law.
The system of international law is not only complex, but also a relatively new phenomenon, in the process of formation, which has not yet been well studied. In domestic doctrine he was given greatest attention D.B. Levin, G.I. Tunkin, D.I. Feldman, E.T. Usenko. They all proceeded from the fact that there is no generally accepted system of international law.
The system of international law has a structure that is characteristic of it. By structure we mean internal organization system, location and connection of its elements, the nature of their relationship. In other words, this inner form system, a certain ordering of its parts. The stability of the whole depends on the stability of the connections between its parts. The nature of the system as a whole depends on the nature of the connections.
Thus, the system of international law is based on a set of goals and principles, has a structure characteristic of it, certain methods of formation and functioning, and develops in accordance with its inherent laws. The existence of this system is objectively determined, since only as a sufficiently organized system is modern international law able to fulfill its functions.
The fact that the system of international law is a relatively new phenomenon has been repeatedly stated in the doctrine, for example, by the famous lawyer from Finland E. Castren. In the past, there were disparate sets of norms that regulated either local relations (union agreements) or general relations, providing them with elementary rules ( diplomatic privileges). International law did not contain general goals and principles defining the nature of interaction; it treated the goals of peace and the goals of war equally. The criterion was the practice primarily of the great powers. International law was infinitely dispositive. Two or more states could, in their relations, cancel the effect of almost any international legal norm.
Modern international law has determined the main goals of interaction between states, and thereby international legal regulation. As a result, it began to determine not only the forms, but also the content of interaction between states.
The established set of basic principles of international law united, organized and subordinated previously disparate groups of norms. International law has ceased to be only dispositive; a complex has emerged mandatory norms(jus cogens), i.e. generally accepted norms, from which states have no right to deviate in their relations even by mutual consent.
Another sign of the system has appeared - a hierarchy of norms, the establishment of their subordination. The hierarchy of norms makes it possible to determine their place and role in the system of international law, to simplify the process of coordination and overcoming conflicts, which is necessary for the functioning of the system.
Particularly noteworthy is the fact that international law is increasingly regulating the processes of creation and implementation of norms. An international procedural law which is a sign of maturity legal system <*>.
The primary element of the system of international law is the norm. It is a model of a certain international relationship, while the system of international law is a normative model of the system of international relations. These models influence international relations in order to bring them as close as possible to their content.
The system can be a regulator of relationships because separate groups norms in its composition solve their specific problems. Norms influence and presuppose each other. Therefore, the system must be internally consistent; its parts cannot be in conflict. For such an extremely diverse phenomenon as international law, this is not an easy task.
Thus, the unification of norms into the system of international law led to the emergence of their new qualities. Thanks to this, diverse norms are able to regulate international relations systematically, providing a differentiated and at the same time unified impact.
M.P structure:
| Being a legal normative system, international law is, of course, structured to regulate subjects in the form of regulation of groups of norms, which in some cases can only be justified jointly, taking into account one or more norms applied in a particular circumstance. For example, international law includes diplomatic law, maritime law, the law of treaties, the main subject of regulation of which can be called the exploration and development of maritime spaces, the relationship of states, as well as the procedure for concluding and implementing treaties between different countries. IN necessary cases the rules of individual responsibility of states and succession come into force international treaties, compliance with the relevant powers of the United Nations. In other words, all blocks of international legal norms are interconnected in an integral system of international law. In some cases, if there are multilateral or bilateral treaties between states that make acceptable changes to dispositive norms international law, for countries participating in these treaties the corresponding local norms come into force. International law still loses in comparison with national law in structure, in the sense that its systematic presentation in any single (like the National Code of Laws) or several written acts interconnected (like the Criminal and Criminal Procedure Codes), on this moment No. |
Question 3. The emergence of international law and the periodization of its history .
The history of the emergence and development of international law is part of historical development society. At the same time, the opinions of scientists and specialists on the issue of the time of the emergence of international law and its periodization vary significantly. As Professor I.I. rightly noted. Lukashuk, “despite all its significance, the history of international law has not yet attracted due scientific attention. There are many white spots in it. Such a fundamental question as the time of emergence of international law has not been resolved either.”
There are several points of view on the question of the time of the emergence of international law.
1. International law arose along with the emergence of states, when states began to create legal norms. At the same time, some scientists associate the beginning of the emergence of international law with the emergence of Christianity (for example, the French scientist C. de Vischer).
2 International law arose in the Middle Ages, when states realized the need to create common rules of international law and began to obey them.
3. International law appeared in modern times, when large centralized sovereign states and political unions of states were formed, and the work of the “father” of the science of international law Hugo Grotius at the beginning of the 17th century. marked the beginning of the formation of the science of international law. It seems more reasonable to attribute the origin of international law to the ancient world. In ancient times public relations both within the state and in the interstate sphere arose, supported and developed. Government sanctioned existing pre-state social norms that regulated both intra-tribal and inter-tribal social relations, adapting them to their interests and needs, and also created new legal norms that regulated newly emerging social relations. Therefore, the processes of formation of both domestic and international law spread in parallel, but with varying degrees of intensity.
In conditions subsistence farming, the underdevelopment of commodity-money relations, social relations developed mainly within states, which explains the more intensive development of domestic law compared to international law. Consequently, the emergence of international law is inextricably linked with the emergence of public authority and the creation of states.
The issue of periodization of the history of international law deserves special attention. The following time periods are most often distinguished:
1) until the Congress of Westphalia in 1648;
2) from the Congress of Westphalia in 1648 to the Congress of Vienna in 1815;
3) from the Vienna Congress of 1815 to the Paris Congress of 1856;
4) from the Paris Congress of 1856 to the end of the 19th century;
5) from the beginning of the 20th century. Until now.
The 1984 Dutch edition of the Encyclopedia of Public International Law provides the following periodization:
1) from antiquity to the First World War;
2) from the First World War to the Second World War;
3) from World War II to the present.
Professor F.F. Martin is still in late XIX- the beginning of the 20th century, denying the very possibility of the existence of international law in the Ancient World due to the “complete disunity of peoples and the dominance of physical force between them,” nevertheless, he divided the entire history of international relations and international law into three periods: the first period covers the Ancient World, Middle Ages and Modern Times until the half of the 17th century. or until the Peace Congress of Versailles in 1648; the second period - from 1648 to the Congress of Vienna in 1815, when the dominance of brute force and isolation of peoples is replaced by the idea of political balance; third period - lasts from 1815 to the present.
In modern literature, the periodization of the development of international law, proposed by Professor I.I., deserves attention. Lukashuk:
Prehistory of international law (from ancient times to the end of the Middle Ages); classical international law (from the end of the Middle Ages until the adoption of the Statute of the League of Nations);
The transition from classical to modern international law (from the adoption of the Statute of the League of Nations to the adoption of the UN Charter);
Modern international law - the law of the UN Charter 1.
Summarizing the above points of view and approaches on the issue of periodization of international law, it seems most justified to distinguish the following five main stages in its development:
1) international law of the slave system (until the 5th century);
2) international law of the Middle Ages (V-XVI centuries);
3) international law in the era of bourgeois revolutions (XVII-XIX centuries);
4) international law of the first half of the 20th century;
5) modern international law (since the adoption of the UN Charter in 1945).
Related information.
is a set of interrelated principles and norms governing international legal relations.
The system of international law includes, on the one hand, general legal principles and legal norms, and, on the other, industries as homogeneous sets of norms and intra-industry institutions.
Thus, the system of international law can be divided into the following categories:
- generally accepted principles of international law, which form its core and are fundamental to the international legal mechanism for regulating relations;
- norms of international law, which are generally binding rules of relations between states or other subjects of international law;
- institutions common to international law, which are complexes of norms with a specific functional purpose. Institute of International Law on international legal personality, on international law-making, on international responsibility, on the succession of states;
- branches of international law that are the largest structural divisions systems of international law and regulating the most extensive areas of social relations.
Branches of international law can be classified on various grounds. Branches in international law can be distinguished both on the grounds adopted in domestic law, and on specific grounds of an international legal nature. Generally recognized branches of international law include the law of international treaties, the law of external relations, the law of international organizations, the law of international security, international maritime law, international space law, international environmental law, and international humanitarian law.
The branch of international law may include sub-sectors, if the branch regulates a wide range of relations, institutions of this branch, which are mini-complexes for regulating any individual issues.
Sub-branches in the law of international relations are consular and diplomatic law, the institutions of this branch of law are the institutions of formation of representative offices, the functions of representative offices, immunities and privileges of diplomatic missions, in the law of armed conflicts - groups of norms regulating regimes of military occupation, military captivity.
From the above it follows that the system of international law is a set of interrelated elements, generally accepted principles, legal norms, as well as institutions of international law.
Various combinations of these elements form branches of international law.
2. System of international law
System of international law- 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 system elements make up branches of international law(maritime, diplomatic, law of international treaties, etc.). Each industry is an independent system, which can be considered a subsystem within the framework of a holistic 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 generally recognized branches of international law include(without touching on the issue of name) the following industries:
law of international treaties, law of external relations (diplomatic and consular law), law of international organizations, international security law, international humanitarian law (“human rights law”), international maritime law and others.
3. Basic principles of international law
Principles of international law va- these are the guiding rules of behavior of subjects arising as a result of social practice, legally established principles of international law. Principle of international law- this is first of all norm of international law.
The principles of international law are formed by customary and contractual means. They simultaneously perform two functions: they contribute to the stabilization of international relations, limiting them to a certain normative framework, and consolidate everything new that appears in the practice of international relations.
Characteristic feature principles of international law is their versatility. The principles of international law are a criterion for the legality of the entire system of international legal norms m.
The basic principles are enshrined in the UN Charter. Their content is disclosed in the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the UN Charter, adopted by the General Assembly in 1970, as well as in the final act of the Conference on Security and Cooperation in Europe in 1975. In addition, a number of principles are devoted to special resolutions of the UN General Assembly. As a result, the principles became established in general international law as generally recognized customary norms. The International Court of Justice has indicated that some of the principles, most notably the principle of non-use of force, existed as a rule of customary international law before the adoption of the UN Charter.
Declaration of Principles of International Law 1970 to the number basic principles attributed: non-use of force, peaceful resolution of disputes, non-interference, cooperation, equal rights and self-determination of peoples, sovereign equality, faithful fulfillment of obligations under international law. Final Act of the CSCE added three more to them: inviolability of borders, territorial integrity, respect for human rights.
The principle of sovereign equality of states. The main social purpose of this principle is to ensure legally equal participation in international relations of all states, regardless of differences of an economic, social, political or other nature.
According to the 1970 Declaration, the concept of sovereign equality includes the following elements:
1). States are legally equal.
2). Each state enjoys the rights inherent in full sovereignty.
3). Each state is obliged to respect the legal personality of other states.
4) The territorial integrity and political independence of the state are inviolable.
5) Each state has the right to freely choose and develop its political, social, economic and cultural systems.
6) Each state is obliged to fulfill fully and conscientiously its international obligations.
The principle of non-use of force and threat of force. According to paragraph 4 of Art. 2 of the UN Charter, “all Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”
The UN Charter provides only two cases of lawful use of armed force: for the purposes of self-defense (Article 51) and by decision of the UN Security Council in the event of a threat to the peace, a breach of the peace or an act of aggression (Articles 39 and 42).
The principle of the inviolability of state governments ranits. This principle constitutes one of the most important foundations for the security of European states. It was formulated in the Final Act of the Conference on Security and Cooperation in Europe in 1975, which, inter alia, states that “the participating States regard as inviolable all the borders of each other, as well as the borders of all States in Europe, and will therefore refrain now and in the future from any encroachment on these borders.”
Therefore, recognition of this principle also means the renunciation of any territorial claims. The main content of the principle of inviolability of borders can be reduced to three elements:
1). Recognition of existing borders as legally established in accordance with international law.
2). Refusal of any territorial claims now or in the future.
3). Refusal of any other encroachment on these boundaries. The principle of territorial integrity of states. The name of the principle has not been finally established, so one can find references to both territorial integrity and territorial inviolability.
In paragraph 4 of Art. 2 of the UN Charter establishes that each state:
1. “Must refrain from any action aimed at disturbing the national unity and territorial integrity of any other state or country.”
2. “The territory of a State shall not be the subject of military occupation resulting from the use of force in violation of the provisions of the Charter.”
3. “The territory of a State shall not be the object of acquisition by another State as a result of the threat or use of force.”
The principle of peaceful resolution of international disputes. According to paragraph 3 of Art. 2 of the UN Charter, “all Members of the United Nations shall settle their international disputes by peaceful means, in such a manner as not to endanger international peace, security and justice, through negotiation, inquiry, mediation, conciliation, arbitration, judicial proceedings, recourse to regional bodies or agreements.” or by other peaceful means of your choice.”
The principle of non-interference in internal affairs. The concept of non-intervention does not mean that states can arbitrarily attribute any issues to their internal competence. The international obligations of states, including their obligations under the UN Charter, are a criterion that allows for the correct approach to resolving this issue.
In accordance with paragraph 7 of Art. 2 of the UN Charter, the Organization does not have the right “to interfere in matters essentially within the internal competence of any state.”
However, some events occurring within the territory of a state may be qualified by the Security Council as not falling solely within the latter's internal competence.
Principle of universal respect for human rights. The formation of the principle directly with the adoption of the UN Charter. In Art. 1 of the Charter as the goal of the members of the Organization states cooperation between them “to promote and develop respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.”
According to Art. 55 of the Charter, according to which “the United Nations shall promote:
1). Raising living standards, full employment and conditions for economic and social progress and development.
2). Universal respect and observance of human rights and fundamental freedoms..."
The principle of self-determination of peoples and nations. This principle was developed as a mandatory norm after the adoption of the UN Charter. One of the most important goals of the UN is “to develop friendly relations between nations on the basis of respect for the principle of equality and self-determination of peoples...” (Clause 2 of Article 1 of the Charter). This goal is specified in many of its provisions.
The 1970 Declaration of Principles of International Law emphasizes: “The establishment of a sovereign and independent State, free accession to or association with an independent State, or the establishment of any other political status freely determined by a people, are forms of the exercise by that people of the right of self-determination.”
The principle of international cooperation. The idea of international cooperation between states, regardless of differences in their political, economic and social systems, is the main provision in the system of norms contained in the UN Charter. The principle of cooperation is enshrined in the charters of many international organizations, in international treaties, numerous resolutions and declarations.
The principle of faithful fulfillment of international obligations. This principle arose in the form of the international legal custom pacta sunt servanda in the early stages of the development of statehood, and is currently reflected in numerous bilateral and multilateral international agreements.
According to the Vienna Convention on the Law of Treaties, “every treaty in force is binding on its parties and must be performed by them in good faith.”
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What elements of the system of international law are named in the text (list three elements)? What feature of the creation of international legal norms in comparison with domestic law did the authors note? Based on your knowledge of the social science course, explain the meaning of the concept of “objective law”.
Read the text and complete tasks 21-24.
A norm of international law is understood as a rule of behavior that is recognized by states and other subjects of international law as legally binding.
The norms of international law should be distinguished from the so-called customs, or norms of international politeness, which subjects of international law observe in mutual relations. However, if international legal norms are legally binding rules of conduct, then customs, or norms of international politeness, lack the quality of legally binding ones. Violation of international law provides grounds for international legal responsibility, but violation of custom does not entail such responsibility...
A number of norms of international law are called principles. Although these are the same international legal norms, some of them have long been called principles, others began to be called so because of their significance and role in international legal regulation. At the same time, there are certain principles that are general in nature compared to other international legal norms and are of utmost importance for the international community in maintaining international legal order. Among the principles are the basic principles of international law, which form the foundation of the international legal order. A violation by a state of any basic principle may be considered by the international community as an attack on the entire international legal order. The main principles include the principles of sovereign equality, non-interference in internal affairs, prohibition of the use of force or threat of force, compliance international obligations, peaceful resolution of international disputes, etc. Legal norms and institutions are united in the branches of international law. Some branches (for example, international maritime law and diplomatic law) have existed for a long time, others (for example, international atomic law and international space law) have arisen relatively recently...
The process, methods and forms of creating norms of international law differ from the creation of norms of domestic law. In international relations there are no legislative bodies, which could adopt legal norms without the participation of the subjects of the system of international law themselves. International legal norms are created by the subjects of international law themselves. The only way to create international legal norms is through agreement between subjects of international law. Only subjects of international law give certain rules of their behavior the quality of legal obligation.
Since there are no supranational enforcement bodies in international relations, compliance and implementation of international legal norms is mainly carried out by the subjects of this system of law on a voluntary basis...
In the process of participating in international communication, constantly entering into relations with each other, subjects of international law not only act in accordance with existing norms of international law, but also make the necessary clarifications, additions and changes to their content, and also create new norms.
Thus, the creation of international legal norms is a continuous process.
(Y. Kolosov, V. Kuznetsov)
What two groups of norms governing international relations are considered by the authors? What is the difference between these norms?
Explanation.
1) two groups of norms:
Norms of international law and norms of international politeness (customs);
2) difference:
Violation of international law provides grounds for international legal responsibility, but violation of custom does not entail such responsibility.
Explanation.
The correct answer should cover the principles and give appropriate explanations, for example:
1) the principle of sovereign equality presupposes that all states are legally equal to each other as sovereign independent participants in international communication, generally enjoy the same rights and bear equal responsibilities, despite the differences in their economic, social and political systems (the implementation of this principle excludes discrimination against states and related international conflicts);
2) the principle of non-interference in internal affairs implies a ban on states and international organizations to interfere in the internal affairs of states and peoples in any form (the implementation of this principle prevents wars of aggression and national liberation, trade and other wars and conflicts);
3) the principle of compliance with international obligations presupposes the inadmissibility of arbitrary unilateral refusal of undertaken obligations and legal responsibility for violation of international obligations (the implementation of this principle prevents military and other hostile actions of states whose rights have been violated).
Other principles may be revealed and explained.
Suggest what might lead to the creation of new international legal norms (indicate any two circumstances). What international organizations can be involved in resolving international legal conflicts? Indicate any two organizations and their areas of competence.
Explanation.
The correct answer must contain the following elements:
1) circumstances, for example:
The emergence of new social realities that require legal regulation;
Creation of new states, change of political regimes in existing states;
(Other circumstances may apply.)
2) international organizations and their sphere of competence, for example:
International Court of Justice (resolves legal disputes between states).
ECHR (cases brought by individuals and legal entities against states and international organizations;
UN International Tribunals (bringing individuals to justice for violations of international humanitarian law).
Other international organizations may be specified
Explanation.
The correct answer must contain the following elements:
1) elements of the legal system:
Institutes;
Branches of law;
2) feature:
The only way to create international legal norms is through agreement between subjects of international law.
3) explanation of the meaning of the concept, for example:
Objective law is a set of generally binding norms that regulate legal relations in society and are protected by the power of state coercion.
Elements of the answer can be given in other, similar in meaning formulations
System of international law is an interconnected and interdependent set of its following structural elements (components):
- – principles of international law;
- – international legal norms;
- – institutions of international law;
- – branches of international law.
The core (center) of the system of international law is the basic principles of international law enshrined in the UN Charter of 1945, the Declaration of Principles of International Law of 1970, the Final Act of the Helsinki Conference on Security and Cooperation in Europe of 1975 and other sources of international law .
International legal norms – these are the rules of conduct of subjects of international law, created by them on the basis of the voluntary expression of their wills in order to regulate international interstate relations in various areas of international cooperation. The norms of international law are contained in international agreements and are of a generally binding nature for all subjects of international relations.
The classification of international legal norms is clearly conditional. They can be classified into:
- – imperative (generally obligatory) and dispositive (providing for freedom of choice of rules of conduct for subjects of international law);
- – personalized (addressed to a narrow circle of participants in international relations, for example, contained in bilateral international agreements) and not personalized (addressed to all subjects of international law without exception, which are generally binding, failure to comply with which may result in measures of international legal responsibility).
Institutes of international law - this is a complex (set) of international legal norms relating to various relations of subjects of international law on any object of international legal regulation or regulating, establishing the international legal status or regime of use of a certain area, object, sphere or space. For example, the institution of the high seas, the institution of international legal responsibility, succession of states, etc.
Institutes of international law can be classified into two groups:
- – are common for all international law, institutions, for example, international legal responsibility, international succession;
- – industry institutions, i.e. operating only within one branch of international law, for example, the institutions of territorial and high seas in international maritime law.
Branches of international law – this is a more voluminous component of the system of international law, which includes the following interconnected categories: international legal norms, industry guidelines and institutions that regulate international interstate relations only in one, broader area of cooperation between subjects of international law.
Branches of public international law can be classified into two groups :
- – traditional, which formed into such a long time ago, for example, the law of international treaties, the law of international security, international economic law, human rights, etc.;
- – young branches of international law, formed as such relatively recently: international environmental law, international space law, etc.
The following main ones can be identified peculiarities modern system of international law.
- 1. All of the above listed elements (components) of the system of international law are based on the basic principles of international law, which represent a logical, whole system fundamental, imperative and universal norms of international law. They form the foundation of the entire system of modern public international law; not a single norm of international law can contradict them, but, on the contrary, must be based on them.
- 2. Taken together, all structural components (elements) of the system of international law form a logical, interconnected and integral system, in which each component (element) is regulated in certain international agreements.
- 3. Modern system international law seems to be a very dynamic category, since all the changes that occur within the framework of modern international relations are certainly reflected in international agreements.
- 4. The degree of implementation of all components of the system of international law depends not only on the conscientious fulfillment of their own international obligations of subjects of international law within the framework of bilateral and multilateral agreements, but also on ensuring the application of the principles of international law, on the level of international legal culture of subjects of international law. Only in this case is it possible to achieve the global goal of international law - ensuring universal peace and international security.