Basic provisions of Article 38 of the Statute of the International Court. International Court. Chapter XIX. Ratification and signature

Introduction 3

1. Concept of sources international law 4

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

2.2 International treaties 17

2.3 Judicial precedents 19

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

Conclusion 26

References 27

Introduction

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

Domestic legislation of states;

International treaties;

Judicial precedents;

International and domestic legal customs and business customs;

Legal doctrine;

Law created by the participants in public relations themselves.

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

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

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

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1. The concept of sources of international law

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

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

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

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

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

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

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

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

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

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

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

Customary rules have the same legal force as treaty rules.

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

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

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

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

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

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

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

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

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

Article 4.

1. The members of the Court are elected by the General Assembly and the Security Council from among the persons listed on the proposal of national groups of the Permanent Court of Arbitration, in accordance with the following provisions.

2. With regard to Members of the United Nations not represented on the Permanent Court of Arbitration, candidates shall be nominated by national groups appointed for this purpose by their governments, subject to the conditions established for members of the Permanent Court of Arbitration by Article 44 of the 1907 Hague Convention for the Peaceful Settlement of International collisions.

3. The conditions under which a State party to this Statute, but not a member of the United Nations, may participate in the election of members of the Court shall, in the absence of special agreement, be determined by the General Assembly on the recommendation of the Security Council.

Article 5.

1. Not later than three months before the day of elections, the Secretary-General of the United Nations shall address a written proposal to the members of the Permanent Court of Arbitration belonging to States Parties to this Statute and to the members of the national groups appointed pursuant to Article 4, paragraph 2 that each national group indicate, within a specified period, candidates who can assume the duties of members of the Court.

2. No group may nominate more than four candidates, and no more than two candidates may be citizens of the state represented by the group. The number of candidates nominated by a group may in no case exceed more than twice the number of places to be filled.

Article 6.

It is recommended that each group, prior to making nominations, seek the opinion of the highest judicial bodies, law faculties, law schools and academies of its country, as well as the national branches of international academies engaged in the study of law.

Article 7.

1. The Secretary General draws up alphabetical order a list of all persons whose candidacies were put forward. Except as provided in paragraph 2 of Article 12, only persons included in this list may be elected.

2. The Secretary General shall submit this list to the General Assembly and the Security Council.

Article 8.

General Assembly and the Security Council proceed with the election of members of the Court independently of each other.

Article 9.

When electing, voters must keep in mind that not only each individual elected must satisfy all the requirements, but the entire composition of judges as a whole must ensure representation main forms civilization and the basic legal systems of the world.

Article 10.

1. Candidates who receive an absolute majority of votes in both the General Assembly and the Security Council are considered elected.

2. Any vote in the Security Council, both in the election of judges and in the appointment of members of the conciliation commission provided for in Article 12, shall be made without any distinction between permanent and non-permanent members of the Security Council.

3. In the event that an absolute majority of votes were cast both in the General Assembly and in the Security Council for more than one citizen of the same state, only the oldest in age is considered elected.

Article 11.

If, after the first meeting convened for elections, one or more seats are left unfilled, a second and, if necessary, a third meeting will be held.

Article 12.

1. If, after the third meeting, one or more seats are left unfilled, then at any time, at the request of either the General Assembly or the Security Council, a conciliation commission consisting of six members, three appointed by the General Assembly and three appointed by the Security Council, may be convened, to elect by an absolute majority of votes one person for each remaining vacant seat and submit his candidacy to the discretion of the General Assembly and the Security Council.

2. If the conciliation commission unanimously decides on the candidacy of a person who meets the requirements, his name may be included in the list, even if he was not included in the candidate lists provided for in Article 7.

3. If the conciliation commission is convinced that elections cannot take place, then the members of the Court already elected shall, within a period determined by the Security Council, proceed to fill the vacant seats by electing members of the Court from among the candidates for whom votes have been cast either in the General Assembly, or in the Security Council.

Article 13.

1. Members of the Court shall be elected for nine years and may be re-elected, provided, however, that the term of office of five judges of the first composition of the Court shall expire after three years, and the term of office of a further five judges shall expire after six years.

2. The Secretary General shall, immediately after the first election, determine by lot which of the judges shall be deemed elected for the initial terms of three years and six years indicated above.

3. Members of the Court shall continue to perform their duties until their seats are filled. Even after replacement, they are obliged to finish the work they started.

4. If a member of the Court submits an application for resignation, this application is addressed to the President of the Court for transmission to the Secretary General. Upon receipt of the application by the latter, the position is considered vacant.

Article 14.

Vacancies that arise shall be filled in the same manner as for the first elections, subject to the following rule: within one month after the opening of the vacancy, the Secretary-General shall proceed to issue the invitations provided for in Article 5, and the day of the election shall be determined by the Security Council.

Article 15.

A member of the Court elected to replace a member whose term of office has not yet expired shall remain in office until the expiration of the term of office of his predecessor.

Article 16.

1. Members of the Court may not perform any political or administrative duties and may not devote themselves to any other occupation of a professional nature.

2. Doubts on this issue are resolved by a ruling of the Court.

Article 17.

1. No member of the Court may act as a representative, attorney or advocate in any matter.

2. No member of the Court may participate in the determination of any case in which he has previously participated as a representative, attorney or advocate for one of the parties, or as a member of a national or international court, a commission of inquiry or in any other capacity.

3. Doubts on this issue are resolved by a ruling of the Court.

Article 18.

1. A member of the Court may not be removed from office unless, in the unanimous opinion of the other members, he no longer meets the requirements.

2. The Secretary General is officially notified of this by the Registrar of the Court.

3. Upon receipt of this notification, the place is considered vacant.

Article 19.

Members of the Court, when performing their judicial duties, enjoy diplomatic privileges and immunities.

Article 20.

Each member of the Court shall, before taking office, make a solemn declaration in open session of the Court that he will exercise his office impartially and in good faith.

Article 21.

1. The Court elects a Chairman and a Vice-Chairman for three years. They can be re-elected.

2. The Court shall appoint its Registrar and may make arrangements for the appointment of such other officers as may be necessary.

Article 22.

1. The seat of the Court is The Hague. This shall not, however, prevent the Court from sitting and performing its functions in other places in all cases where the Court finds it desirable.

2. The Chairman and the Secretary of the Court must reside at the seat of the Court.

Article 23.

1. The Court sits continuously with the exception of judicial vacations, the terms and duration of which are established by the Court.

2. Members of the Court are entitled to periodic leave, the time and duration of which shall be determined by the Court, taking into account the distance from The Hague to the permanent residence of each judge in his home country.

3. Members of the Court are required to be at the disposal of the Court at all times, with the exception of time on vacation and absence due to illness or other serious reasons duly explained to the Chairman.

Article 24.

1. If, for any special reason, a member of the Court considers that he should not participate in the determination of a particular case, he shall inform the President accordingly.

2. If the President finds that any member of the Court should not, for any special reason, participate in a hearing in a particular case, he warns him accordingly.

3. If a disagreement arises between a member of the Court and the Chairman, it is resolved by a ruling of the Court.

Article 25.

1. Except in cases specifically provided for in this Statute, the Court shall sit as a whole.

2. Provided that the number of judges available for the constitution of the Court is not less than eleven, the Rules of the Court may provide that one or more judges may, depending on the circumstances, be relieved in rotation from sitting.

3. A quorum of nine judges is sufficient to constitute a judicial presence.

Article 26.

1. The Court may, as necessary, establish one or more chambers, composed of three or more judges, at the discretion of the Court, to hear certain categories of cases, such as labor cases and cases relating to transit and communications.

2. The court may at any time create a chamber to hear a separate case. The number of judges forming such a chamber shall be determined by the Court with the approval of the parties.

3. Cases shall be heard and decided by the chambers provided for in this article if the parties so request.

Article 27.

A decision rendered by one of the Chambers provided for in Articles 26 and 29 shall be deemed to have been rendered by the Court itself.

Article 28.

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

Article 29.

In order to expedite the resolution of cases, the Court annually forms a chamber of five judges, which, at the request of the parties, can consider and resolve cases through summary proceedings. To replace judges who recognize that it is impossible for them to take part in meetings, two additional judges are allocated.

Article 30.

1. The court draws up Rules of Procedure that determine the manner in which it performs its functions. The court, in particular, establishes the rules of legal proceedings.

2. The Rules of the Court may provide for the participation in the sittings of the Court or its chambers of assessors without the right of a casting vote.

Article 31.

1. Judges belonging to the citizenship of each of the parties retain the right to participate in hearings on the case being carried out in the Court.

2. If a judge of the nationality of one party is present in the judicial presence, any other party may elect a person of his choice to participate in the presence as a judge. This person shall be elected predominantly from among those persons who have been nominated as candidates in the manner provided for in Articles 4 and 5.

3. If there is not a single judge in the judicial presence who is the nationality of the parties, then each of these parties may elect a judge in the manner provided for in paragraph 2 of this article.

4. The provisions of this article apply to the cases provided for in Articles 26 and 29. In such cases, the President requests one or, if necessary, two members of the Court from the Chamber to give way to members of the Court who are the nationalities of the parties concerned, or, in the absence those or, if it is impossible to attend, to judges specially selected by the parties.

5. If several parties have a common issue, they are considered as one party, so far as the application of previous provisions is concerned. In case of doubt on this issue, they are resolved by a ruling of the Court.

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

Article 32.

1. Members of the Court receive an annual salary.

2. The Chairman receives a special annual increase.

3. The Vice-Chairman shall receive a special allowance for each day on which he acts as Chairman.

4. Judges elected in accordance with Article 31 who are not members of the Court shall receive remuneration for each day they perform their functions.

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

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

7. Rules established by the General Assembly shall determine the conditions under which retirement pensions shall be granted to members of the Court and the Registrar of the Court, as well as the conditions under which members and the Registrar shall receive reimbursement for their travel expenses.

8. The above salaries, allowances and remuneration are exempt from any taxation.

Article 33.

The United Nations shall bear the expenses of the Court in the manner determined by the General Assembly.

Chapter II Competence of the court

Article 34.

1. Only states may be parties to cases before the Court.

2. Subject to the terms of and in accordance with its Rules, the Court may request from public international organizations information relating to cases before it, and shall also receive such information provided by said organizations on their own initiative.

3. Whenever in a case before the Court it is necessary for it to interpret the constituent instrument of a public international organization or an international convention concluded by virtue of such an instrument, the Registrar of the Court shall notify the public international organization in question and transmit to it copies of all written proceedings.

Article 35.

1. The Court is open to states that are parties to this Statute.

2. The conditions under which the Court is open to other States shall be determined by the Security Council, subject to the special provisions contained in existing treaties; These conditions can in no case put the parties in an unequal position before the Court.

3. When a State which is not a Member of the United Nations is a party to the case, the Court shall determine the amount which such party must contribute towards the costs of the Court. This regulation does not apply if the State concerned is already contributing to the costs of the Court.

Article 36.

1. The jurisdiction of the Court includes all cases submitted to it by the parties and all matters specifically provided for by the Charter of the United Nations or treaties and conventions in force.

2. States Parties to this Statute may at any time declare that they recognize, without special agreement, ipso facto, in relation to any other State accepting the same obligation, the jurisdiction of the Court as compulsory in all legal disputes concerning:

a) interpretation of the contract;

b) any question of international law;

c) the existence of a fact which, if established, would constitute a breach of an international obligation;

d) the nature and extent of compensation due for the breach of the international obligation.

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

4. Such declarations shall be deposited with the Secretary General, who shall transmit copies thereof to the parties to this Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice which continue to be in force shall be deemed, as between the parties to the present Statute, to be their acceptance of the jurisdiction of the International Court of Justice binding upon them for the unexpired term of those declarations and in accordance with the conditions in them stated.

6. In the event of a dispute about the jurisdiction of the case by the Court, the issue is resolved by a ruling of the Court.

Article 37.

In all cases where a treaty or convention in force provides for the referral of a case to a Court to be established by the League of Nations or to the Permanent Court of International Justice, the case between the parties to this Statute shall be referred to the International Court of Justice.

Article 38.

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

a) international conventions, both general and special, establishing rules expressly recognized by the disputing states;

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

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

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

2. This ruling does not limit the power of the Court to decide a case ex aequo et bono if the parties so agree.

Chapter III Legal proceedings

Article 39.

1. The official languages ​​of the Court are French and English. If the parties agree to conduct the case in French, then the decision is made in French. If the parties agree to conduct the case in English, then the decision is made in English.

2. In the absence of agreement as to which language will be used, each party may use the language it prefers in the court settlement; The decision of the Court is delivered in French and English. In this case, the Court simultaneously determines which of the two texts is considered authentic.

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

Article 40.

1. Cases are initiated in the Court, depending on the circumstances, either by notification of a special agreement, or by a written application addressed to the Secretary. In both cases, the subject of the dispute and the parties must be indicated.

2. The secretary immediately communicates the application to all interested parties.

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

Article 41.

1. The court has the right to indicate, if, in its opinion, the circumstances so require, any provisional measures that should be taken to ensure the rights of each of the parties.

2. Pending a final decision, communication of the proposed measures shall be immediately brought to the attention of the parties and the Security Council.

Article 42.

1. The parties act through representatives.

2. They may be assisted by attorneys or advocates in the Court.

3. Representatives, attorneys and lawyers representing the parties before the Court shall enjoy the privileges and immunities necessary for them to independently perform their duties.

Article 43.

1. Legal proceedings consist of two parts: written and oral proceedings.

2. Written legal proceedings consist of communicating to the Court and the parties memoranda, counter-memoranda and, if necessary, responses to them, as well as all papers and documents supporting them.

3. These communications shall be made through the Registrar, in the manner and within the time limits established by the Court.

4. Any document presented by one of the parties must be communicated to the other in a certified copy.

5. Oral proceedings consist of hearing by the Court of witnesses, experts, representatives, attorneys and advocates.

Article 44.

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

2. The same rule applies in cases where it is necessary to take measures to obtain evidence on the spot.

Article 45.

The hearing of the case is conducted under the direction of the Chairman or, if he is unable to preside, the Vice-Chairman; If neither one nor the other is able to preside, the eldest judge present presides.

Article 46.

The hearing of a case in the Court is held in public, unless otherwise decided by the Court or unless the parties request that the public be excluded.

Article 47.

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

2. Only this protocol is authentic.

Article 48.

1. The court shall order the direction of the case, determine the forms and time limits within which each party must finally present its arguments, and take all measures related to the collection of evidence.

Article 49.

The court may, even before the hearing of the case, require representatives to present any document or explanation. In case of refusal, a report is drawn up.

Article 50.

The court may at any time entrust the conduct of an investigation or examination to any person, board, bureau, commission or other organization of its choice.

Article 51.

At the hearing of the case, all relevant questions shall be put to witnesses and experts, subject to the conditions determined by the Court in the Rules referred to in Article 30.

Article 52.

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

Article 53.

1. If one of the parties does not appear in the Court or does not present its arguments, the other party may ask the Court to resolve the case in its favor. The decision must state the considerations on which it is based.

2. Revision proceedings are opened by a ruling of the Court, which definitely establishes the existence of a new circumstance with the recognition of the latter’s nature giving grounds for reconsideration of the case, and announces the acceptance, therefore, of the request for reconsideration.

3. The court may require that the conditions of the decision be fulfilled before it opens review proceedings.

4. The request for review must be made before the expiration of six months after the discovery of new circumstances.

5. No request for review may be made after the expiration of ten years from the date of the decision.

Article 62.

1. If any State considers that the decision of the case may affect any of its interests legal nature, then that State may apply to the Court for permission to intervene in the case. Charter United Nations or under this Charter.

2. Matters on which an advisory opinion of the Court is sought shall be submitted to the Court in a written statement containing a precise statement of the matter on which the opinion is sought; All documents that may serve to clarify the issue are attached to it.

Article 66.

1. The Registrar of the Court shall immediately communicate the application containing the request for an advisory opinion to all States entitled to access to the Court.

2. In addition, the Registrar of the Court shall, by special and direct notice, inform any State having access to the Court, as well as any international organization which, in the opinion of the Court (or its President, if the Court is not sitting), may provide information on the matter that The Court is prepared to accept, within a time limit set by the President, written reports relating to the issue or to hear the same oral reports at a public meeting appointed for this purpose.

3. If such State having the right of access to the Court does not receive the special notification referred to in paragraph 2 of this article, it may wish to submit a written report or to be heard; The court makes a decision on this issue.

4. States and organizations that have submitted written or oral reports, or both, are permitted to discuss reports made by other States or organizations in the forms, limits and time limits established in each special case The Court or, if it is not sitting, the President of the Court. For this purpose, the Registrar of the Court shall communicate in due course all such written reports to the States and organizations which themselves have submitted such reports.

Article 67.

The Court renders its advisory opinions in open session, of which the Secretary General and representatives of the Members of the United Nations directly concerned, other states and international organizations are notified.

(signatures)

Article 38 of the Statute of the International Court of Justice states:

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

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

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

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

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

Is this list an exhaustive list of sources of international law? Does Art. 38 hierarchy of sources? Can the International Court of Justice be guided by other sources when resolving disputes? Is this list mandatory for other international courts and arbitrations?

Case 2. Treaty establishing the European Economic Community

In accordance with Art. 189 of the Treaty establishing the European Economic Community “...the regulation is intended for general application. It is binding in all its parts and is directly applicable in all Member States." The regulations are an act of an international organization and are adopted by the bodies of this organization on the basis of the provisions of the constituent acts and other norms of international law.

In 2000, the EU adopted the Regulation “On the service of procedural documents in civil and trade affairs in Member States." Article 20 of this regulation contains the following provision:

“This Regulation has greater legal force than bilateral or multilateral treaties and agreements concluded by EU Member States, in particular the Protocol to the Brussels Convention of 1968 and the Hague Convention of 1965.”

Is this regulation a source of international law? Is there a violation in this case of the provisions of the Vienna Convention on the Law of Treaties of 1969 regarding the priority of the rules of international law? Can the norms of acts of international organizations take precedence over the norms of international treaties or customs?

Case 3. Advisory opinion of the UN ICJ

The UN General Assembly, at the request of the State of A., appealed to the International Court of Justice for an advisory opinion. The request stated that State A was asking for an interpretation of the peace treaty with State B in order to avoid conflict between them.

What is the advisory opinion of the UN ICJ? Which subjects of international law can submit a request for an advisory opinion to the UN ICJ? Will this request be accepted for consideration? Can the UN ICJ refuse a request?

Case 4. Vienna Convention on the law of treaties between States and international organizations or between international organizations 1986

The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations has not entered into force. However, when concluding international treaties, subjects of international law are guided by the norms of this convention.

What is the source of regulation in this case – agreement or custom?

Case 5. The principle of self-determination

The head of the autonomy of one of the nationalities of the state of A., numbering 20 thousand people, occupying part of the territory, referring to the principle of self-determination, declared its independence and international legal personality.

Exercise 1

In Art. 38 of the Statute of the International Court of Justice, as one of the sources of international law, mentions international custom “as evidence of a general practice recognized as a legal norm.”
What international custom – universal or local – are we talking about in this case? Can a custom consist of a complex international standards? What is meant by proof of the existence of a custom?
Give 2-3 examples of international customs and establish the fact of their recognition by the Russian Federation, using, if possible, the practice of states or any indirect signs confirming it: foreign policy documents, government statements, diplomatic correspondence, a description of a customary norm in national legislation, certain actions indicating the presence of requirements in connection with non-compliance with the custom, the absence of protests against the actions that constitute the custom.

Task 2

To the Arbitration Court Tyumen region in January 2002, court documents and a petition from the Economic Court of the Mogilev Region (Republic of Belarus) were received to recognize and authorize the forced execution of the decision on the territory of Russia of this court on the collection of sums of money to the budget of the Republic of Belarus from a closed joint-stock company located in Tyumen. Among the documents sent to the Russian arbitration court, a writ of execution was presented from the court that made the corresponding decision.
In what order will the decision of the competent economic court of the Republic of Belarus be executed? Is it necessary in this case for the Arbitration Court of the Tyumen Region to issue a ruling on the recognition and authorization of forced execution in the territory Russian Federation foreign judgment?
Justify your answers with references to an international treaty and Russian legislation.

Task 3

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

Text Art. 17 of the Constitution of the Russian Federation in the current version for 2018:

1. In the Russian Federation, the rights and freedoms of man and citizen are recognized and guaranteed in accordance with the generally recognized principles and norms of international law and in accordance with this Constitution.

2. Fundamental human rights and freedoms are inalienable and belong to everyone from birth.

3. The exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons.

Commentary to Art. 17 of the Constitution of the Russian Federation

1. A feature of the current Constitution of Russia is its saturation with principles generally recognized in international law, among which the dominant place is occupied by fundamental ideas in the field of human and civil rights and freedoms.

In accordance with Part 1 of Art. 17 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen are recognized and guaranteed “in accordance with the generally recognized principles and norms of international law.”

The correct understanding of the “generally recognized principles and norms of international law” has become the subject of wide scientific and practical discussion. In domestic legal science, for quite a long time there was an opinion that generally accepted principles and norms exist mainly in the form of custom * (72).

Modern international law and the internal law of states establish a diverse system of principles that predetermine the place of the individual in the state and society, the relationship of the individual with the state and society. The principles of international and constitutional law are divided into basic (fundamental) and additional, general (enshrined in multilateral conventions of global significance) and regional (enshrined in regional conventions), universal and sectoral.

An important place in the system of such principles is occupied by the basic generally accepted principles, which represent the fundamental ideas of the formation, functioning and development of social, international and state-political relations. The criteria for classifying principles as fundamentally generally accepted are their universality and recognition by the majority of states (nations) of the world community. This is, in particular, stated in paragraph “c” of Art. 38 of the Statute of the International Court of Justice: “The Court, which is obliged to decide disputes submitted to it on the basis of international law, shall apply ... the general principles of law recognized by civilized nations.”

Currently, there is no single, established classification of generally accepted principles. Both in international legal acts and in acts of domestic law one can find a variety of regulation in this matter.

Recognizing that such principles should be common to international and domestic law, some scientists believe that they “cannot be of a legal nature, that is, be legal norms, since there are no legal norms common to both international and domestic law”*( 73). It seems that such a view does not correspond to current realities: modern national law of states is literally permeated with the principles general, enshrined in international legal documents.

As in other countries that build their legal system on the basis of “generally recognized principles and norms of international law,” legislators, courts, prosecutors and other law enforcers in Russia are faced with the need for a uniform understanding of the generally recognized principles and norms of international law, as well as the principle of their direct actions. In solving this problem great importance have the legal positions of the Constitutional Court of the Russian Federation, as well as decisions of the Plenum of the Supreme Court of the Russian Federation.

The Constitutional Court of the Russian Federation, regularly referring to international legal acts in the reasoning part of its decisions, is indirectly forced to interpret certain aspects of the understanding and application of generally recognized principles and norms of international law. The application by ordinary courts of generally recognized principles and norms of international law, enshrined in international covenants, conventions and other documents, and the rules of international treaties of Russia is oriented by the decisions of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice "*(74) and dated October 10, 2003 No. 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation.”

The key aspects that have theoretical and practical significance and, accordingly, need clarification are the distinction between generally accepted principles and norms of international law, the definition of their concept and content. In domestic theory and law enforcement practice, certain steps have been taken in this direction.

Of particular importance in the correct understanding and application of generally recognized principles and norms is the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 10, 2003 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation.” In this Resolution, the Plenum of the Supreme Court of the Russian Federation clarified all the most important provisions arising from the influence of international law on the Russian legal system.

The Plenum of the Supreme Court of the Russian Federation in the Resolution of October 10, 2003 gave the concept and defined the main types of generally recognized principles and generally accepted norms of international law.

He pointed out that the generally accepted principles of international law should be understood as the fundamental peremptory norms of international law accepted and recognized international community states as a whole, deviation from which is unacceptable.

“The generally recognized principles of international law, in particular,” noted the Plenum of the Supreme Court, “include the principle of universal respect for human rights and the principle of conscientious fulfillment of international obligations.”

The Russian Federation consolidates the validity on its territory of all rights and freedoms of man and citizen recognized by the international community, regardless of whether they are directly enshrined in the Constitution of Russia or not. According to Part 1 of Art. 55 of the Constitution of the Russian Federation, the enumeration in the Constitution of fundamental rights and freedoms should not be interpreted as a denial or derogation of other generally recognized rights and freedoms of man and citizen. In particular, the Russian Basic Law does not enshrine the right to an adequate standard of living, which is provided for in Art. 11 of the International Covenant on Economic, Social and Cultural Rights. However, this right, based on constitutional and legal principles, also applies on the territory of the Russian Federation.

Not only constitutional, but also international law applies to the provisions of Part 2 of Art. 55 of the Constitution of the Russian Federation, according to which laws should not be issued in the Russian Federation that abolish or diminish the rights and freedoms of man and citizen.

Russia constitutionally recognized all the fundamental rights of man and citizen, proclaimed the equality of citizens, the human right to a decent life and freedom. The current Constitution of the Russian Federation enshrines such humane goals as the abolition of the death penalty and the creation of a jury. The Basic Law of Russia established a number of fundamental principles legal status of the individual, enshrined in international legal documents on human rights. In particular, the internationally recognized principle is the provision enshrined in Part 1 of Art. 19 of the Constitution of the Russian Federation, according to which “everyone is equal before the law and the court.”

In accordance with international law, the Constitution of the Russian Federation determined the legal status of foreign citizens and stateless persons located in Russia. Persons who are not Russian citizens and are legally located on its territory enjoy rights and freedoms and fulfill the duties of citizens of the Russian Federation, with exceptions established by the Constitution, laws and international treaties of the Russian Federation (Part 3 of Article 62). In essence, this category of persons is granted national treatment in Russia.

IN modern period The current legislation of the Russian Federation has also begun to converge with international legal standards: the main restrictions on traveling abroad have been abolished, the situation in the field of freedom of thought, conscience, religion, freedom of everyone to express their opinion has significantly improved, some types of criminal penalties have been abolished, the scope of the possibility of using the death penalty has been reduced executions, a comprehensive reform of the penal system is being carried out * (75). Such measures were implemented, in particular, by the Federal Law of March 20, 2001 “On Amendments and Additions to Certain Legislative Acts of the Russian Federation in Connection with the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

Currently, the norms of international law are widely used when making decisions on cases of protecting the labor rights of citizens, refugees, voting rights of citizens, on the adoption of children by foreign citizens, in cases related to international transportation, and other categories of cases.

The range of application of international law in the field of criminal proceedings is wide. Russia has concluded agreements on legal assistance with many countries. On the basis of concluded international treaties and in accordance with international law, Russian courts in 2002 appealed to other states 20 times with demands for extradition.

The Constitutional Court of the Russian Federation has repeatedly referred to international legal principles and norms in support of its decisions, pointing out the inconsistency with them of the provisions of certain laws affecting human rights and freedoms. Moreover, in some cases, the Constitutional Court relied on generally recognized norms on rights and freedoms that were not directly enshrined in the Constitution of the Russian Federation. For example, in the decision of February 2, 1996, in the case of checking the constitutionality of a number of provisions of the Criminal Procedure Code in connection with a complaint from citizens, it was noted that the International Covenant on Civil and Political Rights, based on the material content of justice and the priority of human rights in it, emphasizes , that the purpose of correcting judicial errors serves as the basis for reviewing the final decisions of the courts, “if any new or newly discovered circumstance conclusively proves the presence of a judicial error” (clause 6 of Article 14). The Constitutional Court of the Russian Federation noted that this international legal norm establishes broader opportunities for correcting judicial errors than the Criminal Procedure Code of the RSFSR, and by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation, being integral part legal system of Russia, has priority over domestic legislation in matters of protection of rights and freedoms violated as a result of judicial errors * (76).

A feature of most international legal acts defining rights and freedoms is that the norms they create are formulated in the most general form and their provisions cannot always directly regulate relations between subjects of law. This is often emphasized in the international legal acts themselves. Thus, the preamble of the UN Universal Declaration of Human Rights states that its provisions are considered “as a task to which all peoples and states should strive,” therefore most of its provisions are declarative in nature. The International Covenant on Economic, Social and Cultural Rights (Article 2, paragraph 1) guides states towards the gradual implementation of their obligations, taking into account available opportunities, including through the implementation of legislative measures.

International treaties occupy a significant place in the system of regulatory legal acts of Russia regulating rights and freedoms. The Russian Federation ratifies treaties in the form of a federal law, after which these acts become in legal force superior to ordinary federal law. This follows from the provisions of Part 4 of Art. 15 of the Constitution of the Russian Federation, establishing that if an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply.

2. The Russian Constitution distinguishes such a category as fundamental human rights and freedoms; they are declared inalienable and belonging to everyone from birth.

Fundamental human rights and freedoms are those fundamental natural legal capabilities of subjects of the right to enjoy certain benefits, without which the individual could not exist and develop as a self-sufficient, full-fledged person.

Fundamental human rights usually include the right to life, liberty, security, private property, physical and mental integrity, personal dignity, personal and family secret and other fundamental rights and freedoms, which are certainly enshrined in the constitutions of states and recognized at the international legal level. In recent years, some rights of the “third” and “fourth” generations have been added to this list, for example: the right to development, to peace, to the use of cultural achievements or favorable (healthy, clean) natural environment, death and personal identity. It is believed that these rights cannot be granted or alienated by state authorities through their acts and actions. The peculiarity of many of these rights is that their bearers can be not only individuals, but also groups.

Fundamental rights and freedoms differ from derivative, acquired rights and freedoms from the point of view of the alienation regime. Derivative rights and freedoms, for example, the right of ownership of a certain object, can be alienated. Thus, provided for in Art. 8, 9 and, especially, in Art. 34-36 of the Constitution of the Russian Federation, the right to own property and land is a fundamental right. But the specific right of ownership of an individual to a certain object based on it is already a derivative right, and not a fundamental one. An owner who owns a certain thing or land can sell or donate it. This possibility, however, does not infringe on the basic human right to own property.

The basic inalienable rights and freedoms that belong to an individual by virtue of his birth are called natural rights and freedoms. It was under the slogans of natural inalienable human rights that representatives of the “third estate” - the revolutionary bourgeoisie - opposed the arbitrariness of absolute monarchs and the enslavement of the individual by the medieval church. The demand for the protection of human rights is still being put forward various movements directed against authoritarianism and totalitarianism.

Natural human rights and freedoms have the following characteristics: 1) belong to the individual from birth; 2) develop objectively and do not depend on state recognition; 3) have an inalienable, inalienable character, recognized as natural (like air, earth, water, etc.); 4) are directly acting.

To realize such natural human rights as the right to life, to a dignified existence, to inviolability, only the fact of birth is sufficient and it is not necessary that a person possess the qualities of an individual and a citizen. The exercise of most acquired rights requires that a person be a citizen and be recognized as a full-fledged person. Such human rights are derived from the state and society, which determines their system, content and scope.

3. A person and citizen lives in society and the state, coexisting and communicating with his own kind. The rights and freedoms he exercises to one degree or another affect the interests of other people, social groups or society as a whole. Balance of interests, tolerance, achieving compromises between divergent goals and actions, public harmony and social partnership are the main features of civil society. That is why, when exercising one’s own rights and freedoms, the rights and freedoms of others should not be violated.

In part 3 of Art. 17 of the Constitution of the Russian Federation establishes a generally recognized legal principle: the exercise of rights and freedoms should not violate the rights and freedoms of other persons. In fact, we are talking about a particular expression of the international legal principle of the prohibition of “abuse of law(s).” According to Part 2 of Art. 29 of the Universal Declaration of Human Rights 1948, in the exercise of his rights and freedoms, everyone shall be subject only to such restrictions as are prescribed by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and satisfying the just requirements of morality, public order and the general welfare in democratic society. Article 5 of the 1966 UN International Covenants on Rights provides that the rights provided for in those instruments cannot be interpreted to mean that any state, any group or any person has the right to engage in any activity or perform any action aimed at destroying any rights or freedoms recognized in the Covenants, or at limiting them to a greater extent than provided for therein. A similar provision is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.

The effect of the constitutional principle under consideration is ensured by the consolidation in current legislation of the limits and restrictions of specific rights and freedoms.

The subjective right of a person and a citizen in the Russian Federation is clearly defined by boundaries, strictly “dosed” by law (the age at which legal capacity begins, the period of military service, the amount of pension, etc. are determined). This is done so that each individual knows the limits of permitted behavior and does not interfere with the legitimate interests of other individuals, the state, and society. Only under this condition can all people freely exercise their rights and freedoms.

One of the means of establishing and maintaining such order in society is legally enforced restrictions on rights and freedoms. We are talking about legal restrictions on the rights and freedoms of man and citizen. The reasons for such restrictions may be:

a) offenses, especially crimes that are most harmful to other persons, the state and societies;

b) behavior, although not recognized as an offense, but affecting the interests of other persons, society and the state;

c) agreements of the persons themselves.

If an unlawful act is committed that infringes and violates the rights and freedoms of other persons, punitive measures are used as a means of limiting the rights and freedoms of offenders.

Principles of private international law

The principles of international private law are the basic principles, the rules that form the basis legal regulation international private relations. Firstly, the law to be applied to civil relations involving foreign citizens or foreign legal entities or civil legal relations complicated by another foreign element, including in cases where the object of civil rights is located abroad, determined on the basis of international treaties of the Russian Federation, Russian legislation and customs recognized in the Russian Federation (clause 1 of Article 1186 of the Civil Code of the Russian Federation ).

Moreover, if it is impossible to determine the law to be applied, the law of the country with which the civil legal relationship, complicated by a foreign element, is most closely connected, is applied, and if an international treaty of the Russian Federation contains substantive legal norms that are subject to application to the corresponding relationship, the determination is based on conflict of laws rules of law applicable to matters fully regulated by such substantive rules are excluded. Thus, it is legally enshrined the principle of close connection between the legal nature of relations and the law to be applied. Thus, the goal is to create a most favored nation regime for the most effective resolution of disputes.

This principle appears repeatedly. For example, in Art. 1188 of the Civil Code of the Russian Federation establishes the rule for applying the law of a country with multiple legal systems. It allows, in cases where the law of a country with more than one legal system is to be applied, to determine the applicable legal system in accordance with the law of that country. If it is not possible to determine, according to the law of that country, which legal system is to be applied, the legal system with which the relationship is most relevant shall apply. closely related. This means that if several different legal systems operate within one state, then the court must choose the law of the region that is inherently close to the legal nature of the dispute. Such states include, for example, the United States, where the law of one state may differ significantly from the law of another. Therefore, when indicating the applicable law, it is advisable for the parties to also indicate the region (subject of state, state) of the applicable law of the country.

Analyzing the content of Art. 1187 of the Civil Code of the Russian Federation, we can conclude that the legislator adhered to the establishment of a national regime in Russian law. So, general rule states that when determining the law to be applied, the interpretation of legal concepts is carried out in accordance with Russian law, unless otherwise provided by law. If, when determining the law to be applied, the legal concepts requiring qualification are not known to Russian law or are known in a different verbal designation or with a different content and cannot be determined through interpretation in accordance with Russian law, then foreign law may be applied when qualifying them.

Foreign law is subject to application in the Russian Federation regardless of whether Russian law is applied in the relevant foreign state to relations of this kind. However, it may work principle of reciprocity, which means that in the Russian Federation the application of foreign law is possible only if Russian law is applied to similar relations on the territory of a foreign state.

In cases where the application of foreign law depends on reciprocity, it is assumed that it exists unless otherwise proven (Article 1189 of the Civil Code of the Russian Federation). Reciprocity can have a reverse side and can be expressed as retorsion (lat. retorsio - reverse action), i.e. reciprocal restrictions on property and personal non-property rights of citizens and legal entities of those states that have special restrictions on property and personal non-property rights Russian citizens and legal entities (Article 1194 of the Civil Code of the Russian Federation). Retorsions are established by the Government of the Russian Federation. The procedure for establishing retorsions is partly regulated by Art. 40 of the Federal Law of December 8, 2003 No. 164-FZ “On the fundamentals of state regulation of foreign trade activities”, and in accordance with which the federal body executive power collects and summarizes information related to the violation by a foreign state of the rights and legitimate interests of the Russian Federation, constituent entities of the Russian Federation, municipalities and Russian individuals.

If, as a result of consideration of the received information, this federal executive body concludes that it is advisable to introduce retaliatory measures in connection with violations, it submits to the Government of the Russian Federation a report containing proposals agreed with the Russian Ministry of Foreign Affairs on the introduction of retaliatory measures. The decision to introduce retaliatory measures is made by the Government of the Russian Federation. Before introducing retaliatory measures, the Russian Government may decide to hold negotiations with the relevant foreign state.

The Russian government may introduce restrictive measures foreign trade goods, services and intellectual property (response measures) in the event that a foreign state does not fulfill its obligations under international treaties in relation to the Russian Federation; takes measures that violate the economic interests of the Russian Federation, constituent entities of the Russian Federation, municipalities or Russian persons or the political interests of the Russian Federation, including measures that unreasonably deny Russian persons access to the market of a foreign state or otherwise unreasonably discriminate against Russian persons; does not provide Russian persons with adequate and effective protection of their legitimate interests in this state, for example protection from anti-competitive activities of others; does not take reasonable actions to combat the illegal activities of individuals or legal entities of this state on the territory of the Russian Federation.

The principle of comitas gentium International politeness) suggests that international relations, which are not strictly regulated by legal norms, must be built on mutual goodwill and voluntary concessions to each other. Civilized peoples are guided by the principle of international politeness; for example, English jurists reduced even the norms of strict law to international politeness and based all modern international law, both private and public, on it.

The principle of exclusion of return sending means that any reference to foreign law should be considered as a reference to the substantive, and not to the conflict of law, laws of the relevant country. This principle allows you to choose the law of the country that is to be applied, but law refers only to the norms of substantive law. This principle allows us to avoid confusion in situations where a reference was made to foreign law, which, in turn, referred back to Russian law. In this regard, the possibility of establishing a reverse reference of foreign law to Russian law remains only in relation to the norms defining the legal status of an individual.

When applying foreign law, the court establishes the content of its norms in accordance with their official interpretation, practice of application and doctrine in the relevant foreign state. In order to establish the content of norms of foreign law, the court may, in accordance with the established procedure, seek assistance and clarification from the Russian Ministry of Justice and other competent bodies or organizations in the Russian Federation and abroad, or involve experts. Persons participating in the case may submit documents confirming the content of the norms of foreign law to which they refer to substantiate their claims or objections, and otherwise assist the court in establishing the content of these norms. For requirements related to the implementation by the parties entrepreneurial activity, the burden of proving the content of foreign law norms may be placed by the court on the parties. If the content of the norms of foreign law, despite the measures taken, is not established within a reasonable time, Russian law is applied.

When applying the law of a country, the court may take into account mandatory norms the laws of another country having a close connection with the relationship, if, according to the law of that country, such rules should govern the relevant relations regardless of the law to be applied. In doing so, the court must take into account the purpose and nature of such norms, as well as the consequences of their application or non-application. In the draft amendments, mandatory rules are referred to as rules of direct application, since when applying the law of a country, the court may take into account the mandatory rules of law of another country that has a close connection with the relationship, if, according to the law of that country, such rules are rules of direct application. In doing so, the court must take into account the purpose and nature of such norms, as well as the consequences of their application or non-application.

Public Policy Clause. A norm of foreign law to be applied is not applied in exceptional cases, when the consequences of its application would clearly contradict the fundamentals of legal order (public order) of the Russian Federation. In this case, if necessary, the corresponding norm is applied Russian law taking into account the nature of the relationship, complicated by a foreign element.

A refusal to apply a rule of foreign law cannot be based solely on the difference between the legal, political or economic system of the relevant foreign state from the legal, political or economic system of the Russian Federation.

Article 15 of the Constitution of the Russian Federation

The latest edition of Article 15 of the Constitution of the Russian Federation reads:

1. The Constitution of the Russian Federation has supreme legal force, direct effect and is applied throughout the entire territory of the Russian Federation. Laws and others legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation.

2. Organs state power, organs local government, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws.

3. Laws are subject to official publication. Unpublished laws do not apply. Any regulatory legal acts affecting the rights, freedoms and responsibilities of man and citizen cannot be applied unless they are officially published for public information.

4. Generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply.

Commentary to Art. 15 KRF

1. The meaning of the concept of “supreme legal force” used in the first sentence of the commented part is revealed in its second sentence (about which see below). Simply put, a constitution is the law of laws, the supreme law of the state. It is mandatory for absolutely all state and self-government bodies, institutions and organizations, public associations, any officials, as well as private legal and individuals located on Russian territory, regardless of their nationality. It is mandatory for foreign government bodies, institutions and organizations of Russia, their officials and other employees, for citizens of Russia and its legal entities outside its borders.

A certain exception is provided by diplomatic and consular missions of foreign states, representative offices of international organizations, their employees enjoying diplomatic and consular immunity, as well as foreign or international armed formations legally located on Russian territory (if this occurs on the basis of international treaties of the Russian Federation). However, they are also obliged to respect the Constitution of the Russian Federation and not violate it, except in cases provided for by international law.

The direct effect of the Constitution means that it is, in principle, subject to implementation regardless of the presence or absence of normative acts specifying and developing it. There are, of course, constitutional norms that cannot be implemented without such acts. For example, the provision of Part 1 of Art. 96, which states that the State Duma is elected for four years, can be directly implemented only in relation to the term of office of the Duma. In what order the Duma should be elected remains unknown, and it is no coincidence that Part 2 of this article provides that this procedure is established by federal law. But even in this case, the direct effect of the Constitution lies in the fact that Part 2 directly implies the obligation of the legislator to issue the corresponding federal law, moreover, within a reasonable time after the entry into force of the Constitution.

The majority of constitutional norms may well be applied directly, however, without their legislative specification and development, undesirable inconsistency could arise in their application and numerous large and small gaps would gape in the system of legal norms. But if there is no specific normative act, the law enforcer is obliged to make the necessary decision directly on the basis of the Constitution. Whether this decision is correct or not will be decided in the event of a dispute by the proper court. Its correctness will be determined not by the fact that it is expedient, but by the fact that it does not contradict the Constitution and is within the scope of powers of the state or self-government body or the official who made the decision.

On October 31, 1995, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” (Bulletin of the Supreme Court of the Russian Federation. 1996. No. 1). In paragraph 2 of this Resolution, among other things, it is said:

“The court, when resolving a case, applies directly the Constitution, in particular:

a) when the provisions enshrined in the norm of the Constitution, based on its meaning, do not require additional regulation and do not contain an indication of the possibility of its application, subject to the adoption of a federal law regulating the rights, freedoms, duties of man and citizen and other provisions;

b) when the court comes to the conclusion that the federal law in force on the territory of the Russian Federation before the entry into force of the Constitution of the Russian Federation contradicts it;

c) when the court becomes convinced that a federal law adopted after the entry into force of the Constitution of the Russian Federation is in conflict with the relevant provisions of the Constitution;

d) when a law or other regulatory legal act adopted by a constituent entity of the Russian Federation on subjects of joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation contradicts the Constitution of the Russian Federation, and there is no federal law that should regulate the legal relations considered by the court.

In cases where an article of the Constitution of the Russian Federation is referenced, when considering cases, courts must apply the law regulating the legal relations that have arisen.”

The resolution draws the attention of the courts to a number of provisions of the Constitution that the courts must keep in mind when considering certain categories of cases.

It followed from this that courts of general jurisdiction supposedly have the right to themselves establish a contradiction of a federal law or other normative act of the Constitution of the Russian Federation and on this basis not to apply such an act, whereas, according to Part 1 of Art. 120 of the Constitution, judges of these and other courts are subject to federal law. In its Resolution No. 19-P of June 16, 1998 in the case on the interpretation of certain provisions of Art. 125, 126 and 127 of the Constitution of the Russian Federation (SZ RF. 1998. N 25. Art. 3004) The Constitutional Court of the Russian Federation in the operative part indicated:

"1. The power provided for in Article 125 of the Constitution of the Russian Federation to resolve cases of compliance with the Constitution of the Russian Federation of federal laws, regulations of the President of the Russian Federation, the Federation Council, the State Duma, the Government of the Russian Federation, constitutions of republics, charters, as well as laws and other regulations of the constituent entities of the Russian Federation, issued on issues related to the jurisdiction of state authorities of the Russian Federation and the joint jurisdiction of state authorities of the Russian Federation and state authorities of the constituent entities of the Russian Federation, falls within the competence only of the Constitutional Court of the Russian Federation. Within the meaning of Articles 125, 126 and 127 of the Constitution of the Russian Federation, courts of general jurisdiction and arbitration courts cannot recognize the acts named in its Article 125 (paragraphs “a” and “b” of Part 2 and Part 4) as not complying with the Constitution of the Russian Federation and therefore losing legal force.

2. A court of general jurisdiction or an arbitration court, having come to the conclusion that a federal law or a law of a constituent entity of the Russian Federation is inconsistent with the Constitution of the Russian Federation, does not have the right to apply it in a specific case and is obliged to apply to the Constitutional Court of the Russian Federation with a request to verify the constitutionality of this law. The obligation to apply to the Constitutional Court of the Russian Federation with such a request, within the meaning of parts 2 and 4 of Article 125 of the Constitution of the Russian Federation in conjunction with its Articles 2, 15, 18, 19, 47, 118 and 120, exists regardless of whether the case was resolved , considered by the court, which refused to apply the unconstitutional, in its opinion, law, on the basis directly current standards Constitution of the Russian Federation.

3. Articles 125, 126 and 127 of the Constitution of the Russian Federation do not exclude the possibility of courts of general jurisdiction and arbitration courts, outside the consideration of a specific case, checking the compliance of the normative acts listed in Article 125 (clauses “a” and “b” of part 2) of the Constitution of the Russian Federation below the level of federal law to another act of greater legal force, other than the Constitution of the Russian Federation.”

The provision that the Constitution applies throughout the entire territory of the Russian Federation would seem to go without saying. In constitutions foreign countries such a provision is usually absent, and this does not mean at all that some part of the territory of a state can be excluded from the scope of its constitution. The need to include this provision in the Russian Constitution was due to the activities of radical nationalist forces in individual republics of Russia, which sought to place the constitutions of these republics above the all-Russian one. From the federal structure of Russia it follows that the federal Constitution throughout the country has unconditional priority over any constitutional acts of the constituent entities of the Federation. Her supremacy is guaranteed Constitutional Court RF (see commentary to Article 125).

The second sentence of the commented part establishes the necessary framework for legislative activity that specifies, develops and supplements constitutional provisions. They are valid in general for all state and self-government activities formalized by legal acts - rule-making and law enforcement.

The term “laws” used in the commented sentence and in the remaining parts of the commented article covers both federal laws, including federal constitutional laws, and laws of the subjects of the Federation, including their constitutions and charters. The expression “other legal acts” covers both regulatory and individual legal acts of any level. Their consistency with the federal Constitution is a necessary prerequisite for the formation of a rule-of-law state in Russia.

In order to determine whether a legal act contradicts the Constitution or not, it is necessary first of all to find out whether the relevant state or self-government body is authorized to issue such legal acts. This power may arise directly from the norms of the Constitution (for example, clause “c” of Article 89 of the Constitution authorizes the President of the Russian Federation to issue pardons) or from the norms contained in other normative acts issued in accordance with the Constitution and not contradicting it in their content. For example, the Federal Law of June 12, 2002 “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation,” as amended. and additional (SZ RF. 2002. N 24. Art. 2253) regulates the status of the Central Election Commission, authorizing it, in particular, within its competence, to issue instructions on the uniform application of this Federal Law, mandatory for execution (Part 13, Art. 21).

It should be borne in mind that not a single government body, other state body or self-government body, not to mention their officials, has the right to issue legal acts on issues that the Constitution or other relevant documents normative act are not under his jurisdiction. If such an act is issued, it should be recognized as contrary to the Constitution. The same applies to acts that are adopted in violation of the order established by the Constitution or other normative act corresponding to it. If, say, the President signed and promulgated a federal law that amends the federal budget, but was not considered by the Federation Council, this would contradict paragraph “a” of Art. 106 of the Constitution.

Next, it is necessary to make sure that the legal act does not contradict the Constitution in its content. If, for example, the law of any subject of the Federation prohibited local governments from establishing local taxes and fees, this would contradict Part 1 of Art. 132 of the Constitution.

Compliance, i.e. consistency with the Constitution of federal laws, regulations of the President of the Russian Federation, chambers of the Federal Assembly, the Government of the Russian Federation, constitutions or charters of the constituent entities of the Federation, their laws and other regulations issued on issues of federal jurisdiction or joint jurisdiction of the Russian Federation and its constituent entities is verified, as noted, by the Constitutional Court of the Russian Federation (see comments to Article 125), and other legal acts - by courts of general jurisdiction and arbitration courts (see comments to Article 120).

2. The universal obligation to comply with the Constitution and laws established in the commented part is also one of the necessary prerequisites for the formation of a rule-of-law state in Russia. It lies in the fact that the listed entities must: firstly, carry out the orders of the Constitution and laws and not interfere with their implementation; secondly, do not violate the prohibitions contained in them and do not contribute to their violation. An example of a constitutional command is contained in the first sentence of Part 3 of the commented article, examples of a constitutional prohibition are contained in its second and third sentences.

It should be noted that state and local government bodies, their officials, as well as other government bodies and officials entrusted with public authority, including administrative, functions (for example, the Central Bank of the Russian Federation, rectors of state higher educational institutions, notaries), are also obliged, in accordance with their competence, to observe, execute and apply the Constitution and laws.

3. The official publication (promulgation) of laws and other acts of general effect is aimed at bringing their content to the public, which is absolutely necessary for their implementation. At the same time, it is the official publication that serves as a guarantee that the published text fully corresponds to the original, i.e. the text that was adopted by the competent authority or referendum and signed by the competent official. The date of entry into force of the act also depends on the date of publication. So, according to Art. 6 Federal Law of June 14, 1994 “On the procedure for publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly,” as amended. Federal Law of October 22, 1999 (SZ RF. 1994. N 8. Art. 801; 1999. N 43. Art. 5124) federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly come into force simultaneously throughout the entire territory of the Russian Federation according to the expiration of 10 days after the day of their official publication, unless the laws themselves or acts of the chambers establish a different procedure for their entry into force.

According to Part 1 of Art. 3, specified by the Federal Law, federal constitutional laws and federal laws are subject to official publication within 7 days after the day of their signing by the President of the Russian Federation. According to Part 1 of Art. 4 of the said Federal Law, the official publication of a federal constitutional law, a federal law, an act of the chamber of the Federal Assembly is considered the first publication of its full text in the “Parliamentary Gazette”, “ Rossiyskaya newspaper"or "Collection of Legislation of the Russian Federation". Any other publications through any media or individual publications are therefore not official.

When publishing a federal constitutional law or federal law, the name of the law and the date of its adoption (approval) are indicated. State Duma and the Federation Council, the official who signed it, the place and date of its signing, registration number. If changes or additions have been made to the law, it can be re-officially published in full (Parts 2 and 4 of Article 9 of the said Federal Law).

The Constitutional Court of the Russian Federation in its Resolution No. 17-P of October 24, 1996 in the case of verifying the constitutionality of Part 1 of Art. 2 Federal Law of March 7, 1996 “On Amendments to the Law of the Russian Federation on Excise Taxes” (SZ RF. 1996. N 45. Art. 5203) in paragraph 6 of the motivational part drew attention to the fact that the day on which the issue dates “ Collections of Legislation of the Russian Federation” containing the text of the act cannot be considered the day of promulgation of this act. The specified date, as evidenced by the output data, coincides with the date of signing the publication for publication, and, therefore, from this moment it is not yet possible to actually ensure that its recipients receive information about the contents of the act. The day of publication of the issue of the “Rossiyskaya Gazeta” (or the “Parliamentary Newspaper”, if its issue with the text of the act was published simultaneously or earlier) should be considered the date of promulgation of the act.

It should be emphasized that it is completely unacceptable after the adoption of a federal constitutional law or a federal law Federal Assembly, as well as the adoption (approval) of the text of the law by the relevant chamber, to make semantic changes to this text in the order of editing, because thereby, in essence, the legislative power of parliament would be usurped. Neither parliamentary committees and commissions, nor even the chairmen of chambers and the President of the Russian Federation have the right to do this.

Shortly before the aforementioned Federal Law was adopted, the President issued Decree No. 662 of April 5, 1994 “On the procedure for the publication and entry into force of federal laws” (SAPP RF. 1994. No. 15. Art. 1173; as amended) , maintaining its effect. According to paragraphs 1 and 2 of this Decree, federal laws are subject to mandatory publication and are submitted for inclusion in the reference bank of legal information of the scientific and technical center for legal information "Sistema". The texts of federal laws distributed in machine-readable form by the scientific and technical center for legal information "Sistema" are official.

The prohibition contained in the second sentence of the commented part is intended to guarantee the implementation of the norm formulated in the first sentence. Until the law is officially published, it cannot come into force and therefore cannot be applied. In this case, other forms of its implementation are also impossible: compliance, execution, use. If it is assumed that a citizen is obliged to know the laws (actual ignorance of the laws does not exempt from responsibility for violating them), then their publication is necessary condition obtaining such knowledge by a citizen.

The prohibition contained in the third sentence of the commented part also applies to legal acts other than laws: decrees, resolutions, instructions, orders, instructions, decisions, agreements, etc. In principle, it is possible to issue such acts without their official publication, if they are intended only for employees of state and self-government bodies, institutions, organizations, to whose attention these acts are brought to the attention of them by sending out their official texts. This applies mainly to acts containing information constituting a state secret or information of a confidential nature.

However, such acts must meet at least two requirements:

- they must be published on the basis and in pursuance of laws, i.e. do not go beyond the limits established by laws (see, for example, comments to part 1 of article 115, part 2 of article 120);

- they cannot affect the rights, freedoms and responsibilities of man and citizen.

Violation of these requirements results in the invalidity of the relevant acts and may entail liability for the officials who issued or signed them.

The appearance of this prohibition in the Constitution is due to the desire to prevent the revival of the practices of the communist regime, which was characterized by the publication of secret regulations that not only affected, but, moreover, violated the constitutional rights and freedoms of citizens.

It is obvious that since decrees and other legal acts mentioned affect the rights, freedoms and duties of man and citizen, an intermediate interval must be established between their official publication (promulgation) and entry into force so that interested persons and bodies can prepare in advance for the implementation of these acts. This especially applies to cases where such acts provide for certain encumbrances on individuals and legal entities or restrictions on their activities. The procedure for publishing acts of the President of the Russian Federation, the Government of the Russian Federation, and federal executive bodies is regulated in detail by Decree of the President of the Russian Federation of May 23, 1996 N 763 “On the procedure for the publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies "(SZ RF. 1996. N 22. Art. 2663; as amended). According to paragraphs 1 and 2 of this Decree, decrees and orders of the President of the Russian Federation, decrees and orders of the Government of the Russian Federation are subject to mandatory official publication, except for acts or their individual provisions containing information constituting a state secret or information of a confidential nature. The listed acts are subject to official publication in the Rossiyskaya Gazeta and the Collection of Legislation of the Russian Federation within 10 days after the day of their signing. The official publication of these acts is considered to be the publication of their texts in the “Rossiyskaya Gazeta” or in the “Collection of Legislation of the Russian Federation”, and in addition, their texts distributed in machine-readable form by the scientific and technical center of legal information “Sistema” are also official.

According to clauses 5-10 and part 2 of clause 12 of the Decree, acts of the President that are of a normative nature come into force simultaneously throughout the entire territory of the Russian Federation after 7 days after the day of their first official publication. Government acts affecting the rights, freedoms and duties of individuals and citizens, establishing the legal status of federal executive bodies, as well as organizations, come into force simultaneously throughout the entire territory of the Russian Federation after 7 days after the day of their first official publication. Other acts of the President and the Government, including acts containing information constituting a state secret or information of a confidential nature, come into force from the date of their signing. Acts of the President and the Government may establish a different procedure for their entry into force.

Regulatory legal acts of federal executive bodies affecting the rights, freedoms and responsibilities of man and citizen, establishing the legal status of organizations or having an interdepartmental nature, which have passed state registration with the Ministry of Justice of the Russian Federation, are subject to mandatory official publication, except for acts or individual provisions containing information constituting a state secret or information of a confidential nature. These acts are subject to official publication in the Rossiyskaya Gazeta within 10 days after the day of their registration, as well as in the Bulletin of Normative Acts of Federal Executive Bodies of the Legal Literature Publishing House of the Administration of the President of the Russian Federation. The specified “Bulletin”, distributed in machine-readable form by the scientific and technical center of legal information “System”, is also official.

Regulatory legal acts of federal executive bodies, except for acts and their individual provisions, which contain information constituting a state secret or information of a confidential nature that has not undergone state registration, as well as registered but not published in the prescribed manner, do not entail legal consequences as have not entered into force and cannot serve as a basis for regulating relevant legal relations, applying sanctions to citizens, officials and organizations for failure to comply with the instructions contained therein. These acts cannot be referred to when resolving disputes.

Regulatory legal acts of federal executive authorities, which contain information constituting state secrets or information of a confidential nature and which are not subject to official publication in connection with this, come into force from the date of state registration and assignment of a number in the Ministry of Justice of the Russian Federation, if by the acts themselves no longer installed late date their entry into force.

4. The provisions of Part 4 of the commented article establish a formula for the interaction of international law and domestic law of Russia. The nature of the interaction between the two legal systems is determined by the fact that generally recognized principles and norms of international law and international treaties of the Russian Federation are included in the country's legal system. In addition, the preemptive effect of international treaties of Russia is recognized when they establish rules of conduct other than those provided for by national law.

Consequently, the Russian legal system does not include international law as a whole, but only those principles and norms of international law that are called generally recognized, and international treaties.