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doctrine Concepts about the international law sources, entering into a circle of traditional sources new kinds of forms

As it was marked earlier, for a science of international law the question on the international legal sources is eternal, as is connected with efficiency and possibility of use of norms of international law, obektivirovannyh in these sources.

Besides the scientific concepts already considered in the present work, the concerning nature of sources of international law and their parity, and also form perfection obektivirovanija, about each quarter of the century in the doctrine there is a discussion at conceptual level about possibility to add the habitual classical list of sources of international law new kinds of forms.

it is unconditional, there are concepts which have settled and verified by time concerning traditional sources of international law of the international treaty and the international custom which are accepted for a long time by international subjects, are well studied by the doctrine and, at first sight, are invariable. ’ 94 However, it is represented to us, it does not eliminate necessity to find out, there are now only some tendencies of development of the form of the international law, demanding judgements, or already it is necessary to establish occurrence of new kinds of sources of international law.

besides, to trace in the doctrine any concepts in connection with tendencies of development of the form obektivirovanija international law it is absolutely necessary, that as it was formulated in the performance at session of General Assembly of the United Nations by the chairman of International court of the United Nations M.Ljahe, “... Not to appear in position denying the future” ’ 95 .

the Domestic and foreign literature though pay attention to questions of prospects of development of international law, including, and to concepts about form development obektivirovanija international law legal rules, but is not enough. So, in connection with requirements of 30th years of last century (the first attempts of codification international

the rights within the limits of League of the Nations) by a life it has been caused a lot of monographic

196

works, but later interest of researchers to a question of development of international law and forms obektivirovanija its norms obviously oslab. [142] [143] [144] [145]

to Consideration of the most developed by the doctrine and significant concepts for the practice, having the purpose to enter into a circle of traditional forms obektivirovanija norms of international law new kinds of sources:) concepts concerning giving of quality of an independent source of international law to the general principles of the right; concepts concerning giving of quality of a source of international law to certificates normotvorchestva the international intergovernmental organisations; - will pay attention the author of research in the present paragraph.

) the Estimation of the concept of giving of quality of an independent source of international law to the general principles of the right

In an international law science exists the concept, supporters

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which as a separate and independent source of international law perceive the general principles of the right.

this concept has appeared in connection with specific interpretation of item 38 of the Statute of Constant chamber of the international justice of League of the Nations (1919); and then, item 38 of the Statute of International court of the United Nations (1945) similar maintenance, which obektiviruet a following rule:“ The court which is obliged to solve the disputes transferred to it on the basis of international law, applies: the international conventions, as the general, and the special, establishing rules definitely recognised as the arguing states; the international custom as the proof of the general practice recognised as the rule of law; the general principles of the right recognised as the civilised nations, d)...

Judgements and doctrines of the most qualified experts in the public law of the various nations, as auxiliary means at definition of rules of law... ” .v [146] [147] [148] systems ”as these principles are the general really for all subjects of all legal systems. The term"major principles"is more adequate to concept“ jus cogens generalis ”(main principles of international law). However, in any case if to compare terms“ the general principles "and" major principles ”, undoubtedly clearly, that a difference of the phenomena designated by them in a place occupied in hierarchy of norms (designate norms of different wine) and in the jural sphere (field) of action of norms, but not in the form (obektivirujutsja either in hand-written, or in the unwritten form). Besides, in the English-speaking doctrine of last quarter of XX century (Rosalyn Higgins [149] , for example) main principles of international law designate the term “jus cogens generalis” where “generalis”, on, all probability, imperativeness is used in sense "cores" as “cogens” (kogentnost) persuasiveness with a bias in an irrefutability ”means“, that is.

thus, first of all, before scientists there is a question: what exactly is meant the general principles of the right - principles of the right international, interstate or obshchetsivilizatsionnogo, that is global legal system?

supporters of the concept of a recognition of the general principles of the right principles only international law [150] [151] in protection of the position result following arguments: 1) in item 38 of the Statute of International court it is particularly told, that the Court is obliged to solve affairs on the basis of international law; 2) during item discussion 38 Statutes of International court in the First committee of the Fourth commission on Ñàí*ôðàíöèññêîé conferences in 1945 have been made the offer to add point "with" words: “ In particular, international law principles ”. However this offer was not accepted, as some delegates have declared, that item 38 was always considered as an assuming duty to apply international law, and that therefore the offered addition is represented useless. 20

6 counterbalance of the concept of a recognition of principles of international law independent sources of international law can be noticed, that points“ and "and" ”Statute item 38 classify international law sources according to way of fastening of norms of international law - written (conventions) and usual (the general practice recognised as the rule of law). Accordingly, international law principles, as well as other kinds of norms of international law (maintenance), are covered by points“ and "and" ”Statute item 38 as can be fixed only in two forms: usual or hand-written (contractual). Moreover, as correctly marks I.I.Lukashuk when there was a concept “the general principles of the right”, about main principles of international law yet there was no also a speech, accordingly, the United Nations could not mean them in the formulation of item 38 of Statute MS. [152] Thus, we have come to conclusion, that to item 38 of the Statute of International court of the United Nations there can not be a speech about international law principles. [153]

There is a concept, that the general principles of the right are meant as principles of national legal systems.

with reference to concept criticism about principles of national legal systems as sources international, besides considered before the thesis that right principles (international or interstate) represent a kind of norms which can be obektivirovany in two basic forms: written (in the item formulation 38 Statutes - “the international convention”) or unwritten (in the formulation of item 38 of the Statute - “the international custom”); but not a kind of a source of international law, there are also other objections.

it is known, that the maintenance of legal regulation of the concrete state is defined by economic relations according to which the concrete legal system is created. Differently, material relations define that should be fixed in the right, predetermine character and the maintenance of rules of law of concrete legal system. In a basis of the most effective regulation of public relations of the concrete state certain ideas (beginning) which represent principles of the national legal system lay down.

At the same time, principles of national legal systems from the point of view of hierarchy of norms of global legal system are subordinated both to the general principles of global legal system, and main principles of international law, but in any way on the contrary.

Estimating with reference to a theme the form of existence of principles of national legal systems, it is possible to be guided G.I.Tunkina's by concept which considered that principles of national systems

1M Akehurst M. A Modern Introduction to International Law. L., 1978. P. 52; Viralli M. The Sources of International Law. Malual of Public International Law. L., 1968. P. 144, 147.; Lukin P. I. International law sources. M, I960. With. 95.; Herzegh G. General Principles of Law and the International Legal Order. Budapest, 1968. P. 19*20.; Bogdan M. General Principles of Law and the Problem of Lacunae in the Law of Nations.//Nordisk tidsskrift for international ret V. 46. 1977. P. 42

the rights “... Even when they are outwardly represented identical, in a root are excellent by the nature, a role in a society, purposefulness” 207 . In other words, outwardly (technically, under the fastening form) similar principles of national legal systems are not identical each other under the maintenance. On this basis it is possible to assume, that in point from"item 38 of the Statute of International court of the United Nations there is no speech about internal law principles.

thus, it is obvious, that in point from" item 38 of the Statute of International court of the United Nations international law principles (covered from the point of view of the form of items "and" and “” by this the item) are fixed not And not principles of national legal systems (which the international law system is not subordinated), and about the general principles of that right, which “... By the most nature... priugotovleno to perception vseplanetnogo movements to freedom, universal values, human rights, were their expression and the carrier...” [154] , that is the right covering all global legal system.

the author of research agrees with the concept of the scientists believing, that the general principles of the right are fundamental principles which define the most essential lines of the right as a whole as the historical phenomenon, its maintenance and features as regulator of all weight of public relations. The general principles of the right, being top of all global legal system, extend on all rules of law, with identical force operate in all legal systems, irrespective of character and specificity of relations regulated by them. Also the general principles of the right represent the general principles of legal technics, penetrating all rules of law and being a core of global standard system.

in this sense the author of research agrees as well that the general principles of the right is not the idea hardware (the supervising beginnings) which are

nknn G.I.Teornja of international law. M, 1970. With. 226.

only a part of sense of justice (an estimation and a wish rather

the prevailing law), and what already have found reflexion in rules of law and in

force of it characterise the right maintenance. On the one hand, they express

laws of the right, and on the other hand, represent most

general provisions which operate in all sphere of legal regulation and

subjects extend on all. These norms or are directly formulated in

legal sources, or deduced from the general sense legal 209

SOURCES.

thus the form of fastening of the general principles of the right corresponds to forms obektivirovanija norms of the corresponding legal system: so, for international law system it is two forms - the international treaty or the international custom.

At a sight of the author of dissertational work, the general principles of the right represent a general intrinsic and substantial category which reflects legal gains of a civilisation in a concrete stage of its development; these are the norms similar to principles of any legal system (within the limits of global legal system), but the highest level (that is visible, in particular, on international law model). 208 [155] [156]

So, for summarising, once again we will address to the review of points of item 38 of Statute MS the United Nations.

from our point of view, the item "and" and the item “ ”Items 38 of the Statute of International court of the United Nations are sharply differentiated among themselves according to criterion of the form of fastening of rules of law (hand-written or unwritten). These two points reflect forms in which the general principles of the right in international law system - the international custom and the international treaty can be reflected.

the point“ d ”, unlike all previous points, contains a direct reference on auxiliary 2 ” character of judgements and doctrines “... The most qualified experts in the public law of the various nations...” Specified in the given point “... As means for definition of rules of law”. That is, it is a question of possibility of use of the specified auxiliary means by judicial consideration of dispute as it is adjusted by the states at acceptance of the Statute of International court of the United Nations.

not clear there are only instructions on the general principles of the right in point "with". We already noticed, that under the general principles of the right, fundamental principles which define the most essential lines of the right in whole, its maintenance and features as regulator of all weight of public relations, irrespective of concrete legal systems are understood. It is international -

to execution), perpetua lex, cst, nullam ligem humanam ac positivum perpetuam esse; et clausula quae abrogationem excludit ab Initio non valet (the eternal law in that consists, that no human or positive law should be eternal; n position which excludes law cancellation, is insignificant from the very beginning), privatis pactionibus non dudium est non laedi jus cactcrorum (private agreements do not mention the right of other persons), quae praeter consuetudinem et vorem majonim fiunt neque recta videntur (those veshi which become against custom and customs of our ancestors, neprinjaty and seem wrong), quia impotentia excusat legem (in view of impossibility of execution the law releases from the obligation), quod alias bonum ct justum cst, si per vim vel fraudem petatus, malum ct ingustum effcctitus (that under other conditions well and fairly, becomes bad and unfair if it is reached by violence or a deceit), quod cst inconvcnicnts, aut contra rationim non permissum cst in lege (that, «on more unseemly or unreasonably, the nanosecond is authorised the law), etc.

legal and national legal systems, judging by works of representatives of the doctrine of the various countries, do not offer other form obektivirovanija the general principles of the right, as hand-written norm and opinio juris. Our reasonings have again returned to a question on the form, that is to points "and" and to"item 38 of the Statute of International court of the United Nations.

concerning point"with"we will construct reasonings by contradiction. As, how by us it was already underlined, the maintenance of norms of a kind“ the general principles of the right ”is covered from the point of view of their form of fastening by concepts“ the hand-written rule of law ”and"custom", whether it was necessary to enter into Statute article one more point on purpose to designate the general principles of the right as a separate source of international law? As it would be incorrect, visible, the category of the general principles of the right is specified in the item“ With ”with other purpose.

besides, even if to assume, that in each of points“ and "," "and" with ”it is a question really of independent sources of international law how to adjust this number of points, considering, that the point“d”interrupts this number and narrates about judgements and the doctrine which it is unequivocal (obshchepriznanno) an independent source of international law are not.

in the light of told it is possible to assume, that as a whole in item 38 of the Statute of International court of the United Nations mechanisms and means which the Court can use at the consent to it of the parties-states, and at all osushchestvl only are listedena classification of sources of international law in narrow sense of this word.

most likely, there is a problem not enough the accurate and correct formulation of item 38 of Statute MS the United Nations which as already by us it was underlined, "have removed" to this document from much earlier document - the Statute of Constant chamber of the international justice of League

P | Even on sense of an English verb “subside” - auxiliary, additional.

the nations. By the moment of formation of the United Nations (1945) questions of the general principles of the right, as well as institute of main principles of international law, still nanosecond have been mastered enough by the doctrine of international law and practice. In this connection the problem of the formulation of item 38 of Statute MS the United Nations has not been in due time designated in an international law science, have not tried syo to solve and the states.

Nevertheless, despite seeming clearness and the simplicity, the designated problem, according to the author of the present research, still demands the theoretical permission as can lead to consequences of following character:) to create hindrances in osoznavaemosti concepts of unity of global legal system, to bring mess in a problem of hierarchy of norms of global legal system, to limit a problem of the permission of gaps in law, destroying one of the major steps of application of the right as a whole.

the author of research believes, that the problem should have the following decision: The general principles of the right should be considered not as a separate source of international law (form), and as a special sort of norms (maintenance) which can be obektivirovany both in hand-written, and in the unwritten form, norms of the higher order to which submit both international law principles, and principles of national legal systems, and, accordingly, all other kinds of legal rules.

on the basis of the made conclusions the author of dissertation offers to refuse completely in the doctrine about sources of international law the concept concerning giving of quality of sources of international law to the general principles of the right.

) the Estimation of the concept of giving of quality of a source of international law and value of certificates normotvorchestva the international intergovernmental organisations

the Exit in normotvorcheskoe the priest within the limits of the international relations of the big number of the international intergovernmental organisations is at first sight capable to shake reliable conservative views on existence in international law of two basic forms obektivirovanija legal rules - the international treaty and the international custom, created mainly the states.

last quarter of XX century of one of the important lines of the status of the international organisations in the doctrine name their ability to participate in creation of norms of international law. [157] [158]

About normotvorcheskoj to activity of the international organisations speak in

following senses: Meaning, that norms of international law

are created by the international intergovernmental organisations

together with other international subjects by the conclusion

international agreements, between international

the intergovernmental organisations, meaning, that international 213

the organisation can create norms of international law individually.

Normotvorchestvo the international organisations together with other international subjects (mainly the states and the international organisations) by the conclusion of international agreements for today it is recognised by a full source of international law. [159]

This kind normotvorchestva has the features in comparison with normotvorchestvom the states:) the legal personality of some participants is limited; a number of subjects does not have quality of the sovereignty; Other is the order of registration of the consent of participation of subjects in the course of creation of a source of international law.

with the known admission and in connection with functional requirement of the state have decided to recognise also the legal personality of the international intergovernmental organisations in joint law-making (the conclusion of international agreements) with other international subjects. Today the similar source of law which has received on the basis of the Viennese convention on the right of international treaties between the states and the international organisations or between the international organisations of 1986 [160] corresponding name - "international treaty", organically joins a general series of sources of international law and admits the doctrine though has the features connected as with features of participation of the international interstate organisations in pravotvorcheskom process, and with possibility of that only in case of the consent of primary international subjects - the states.

also in the doctrine the concept according to which the international interstate organisations can participate indirectly and in the course of creation of usual (unwritten) norms of international law has settled. Namely: Certificates (decisions and resolutions) bodies international

the interstate organisations can become an initial link in process pravoobrazovanija; though these certificates also do not lead directly to occurrence of norms of international law, but, in case of a tacit recognition and performance by the states obektivirovannyh in these documents of norms, the last find quality usually-legal.

in this connection a question I.I.Lukashuka's concept which depending on a way of "origin" of legal idea to a recognition its states has differentiated two kinds of usual norms is fair: the first - traditional (that is the customs generated as a result of consecutive practice and a tacit recognition of the states); and the second - norms, which “... At first are formulated either in contracts, or in such nepravovyh as resolutions of the international organisations and meetings, and further behind them recognise the status of norms of the general international customs” [161] .

a little this question in the concept offered by JU.M.Kolosov differently sees. He considered, that, operating within the limits of the international organisations, create norms nevertheless the states, as “... The will of the international organisations in all cases is cumulative will of the states entering into it. It nanosecond can arise differently, than through the compromise between intentions of member states. In this sense the collective will of the states issued in the form of the decision of the international organisation, is an international treaty version” [162] . However, despite the non-standard approach to an estimation of joint law-making of the states and the international intergovernmental organisations, JU.M.Kolosov did not deny a known role of the last in the course of creation of sources of international law. We believe also, that a version of the international treaty of the resolution cannot be owing to that procedure of creation of these documents other, than at creation of sources of international law.

as to direct (individual) law-making of the international organisations on this question the doctrine expresses not so unequivocally.

6.1. Criticism of concepts concerning giving of quality of a source of international law to some certificates from area of "domestic law" of the international interstate organisations

One of concepts in this sphere - the concept concerning a recognition of competence of the international interstate organisations on own (authorised, statute) pravotvorcheskuju activity, [163] which results name "domestic law" of the international organisations. As more often the states try to follow accurately to instructions of certificates of "domestic law" of the international intergovernmental organisations (that similar on observance of legal rules), the impression as if process of the international law-making (meaning creation of a source of international law and narrower, than process normotvorchestva) comes to the end with "domestic law" certificates can be made. Thereby against seeming implicit compulsion of certificates of "domestic law" for the states which are carrying out these certificates owing to own good will, there is an illusion of legal compulsion of considered certificates, as if already and not dependent on the further will of so significant international subjects, as the states.

some similarity to norms of international law to norms of "domestic law" of the international intergovernmental organisations is given by results of realisation of the last: For example, creation or liquidation of committee of the international intergovernmental organisation on the basis to it own resolution, etc. However to consider, that such consequences are possible only in case of action of legal rules, would mean to deny any practice behind any others, than legal, social norms.

supporters of the concept of "domestic law" of the international intergovernmental organisations aspire to give to some kinds of certificates from this area the form of a source of international law and as a substantiation of the position group questions of internal functioning of the international interstate organisations as follows:

1) Individual decisions. These decisions do not create rules of law as are personified and directed on the permission of a concrete situation. They have character of certificates of application of rules of law (executive, reglamentarnyh). Absolutely fairly doctrine as sources of international law does not perceive the designated certificates.

2) a number of scientists (Malinin S.A., Shibaeva E.A., Kovalyova T.M., Margiev V. I) Offer the concept of that norms of international law can be created by the international interstate organisations unilaterally, by acceptance of corresponding legislative decisions, such, as procedure rules, financial and budgetary rules, personnel rules, statutes of subsidiary organs.

in a substantiation the authors adhering of the designated concept, as a rule, result following arguments: the international organisations carry out the specified certificates normotvorchestva definitively (that is entirely), carry out on the basis of own competence given by it by the states, along with obvious (it is active

the organisations. M, 1986.; Margiev V. I. The Domestic law of the international organisations.

expressed) the tacit acceptance form their states (when passive silence means the consent) exists the form of acceptance of regulations of the international interstate organisations the states. [164]

Also supporters of the concept of giving of quality of sources of international law nspersonifitsirovannym to certificates of the international interstate organisations from area of so-called "domestic law" underline specific character of participation of the international interstate organisations in the considered form normotvorchestva: 1) enactments of such kind of the international interstate organisations as specialised agencies provide for introduction of regulations in action the simplified order; 2) texts of regulations after their acceptance by bodies of specialised agencies cannot be changed member states any more.

Thus, the listed substantiations allow supporters of the concept to draw the general conclusion on ability of the international interstate organisations independently to create norms of international law.

so, for example, it was specified to K.Skubizhevskim, that a role of the international organisations “... Fluctuates from auxiliary functions at formation of norms by the states before development by the organisation of obligatory rules, including such which have character of rules of law” [165] .

However, it is necessary to specify that this position of nanosecond is absolutely correct: investigated certificates do not contain norms of international law and are inherently certificates corporate (rsglamentarnymi) for following reasons. Norms reglamentarnyh certificates differ from norms of international law on a number of criteria: on creation procedure (simple voting without procedure supplementing it - signings, ratifications, etc.) ; On object of regulation (regulate nanosecond interstate, and intraorganizational relations); on a way of maintenance (are provided with forces of the organisation, instead of the world community); for reglamentarnyh certificates the vertical, and a horizontal in the decision of questions from equal to equal (from derivative to derivative) unlike international law bodies where there is a strict hierarchy is in most cases inherent not.

many scientists (I.I.Lukashuk, F.Djurante, G.I.Morozov, M.V.Mitrofanov, G.M.Velyaminov) agree that in this case is a question of special norms, about the norms inherent in internal ability to live of the international intergovernmental organisations, standing on the place second, actually, in tables of ranks of international subjects; but certificates, obektivirujushchie these norms, cannot be considered as an international law source as the rights, first of all, the interstate.

so, of M. Velyaminov, for example, fairly specified, that “... Norms of international law arise only as a result of the coordination vol the states...”, that is pravoobrazujushchaja the will belongs only to the states, and, hence, “... The intergovernmental organisation basically cannot possess pravoobrazujushchej will” [166] .

As well I.I.Lukashuk it is perfect obosnovanno agreed that “... There is an expansion carried out organizational (reglamentarnylsh - italics our Island L) norms of functions, including such which are considered as an international law prerogative...”, but underlined thus, that “... It is difficult to agree...” With the characteristic of the specified norms, as legal rules, thus also being an international law part.

the author of dissertational research believes, that in the present case one only doktrinalnymi calculations it is impossible to "make" the international organisations in high-grade founders of sources of international law. [167] it is unconditional, for the decision of this question are necessary not only theoretical workings out, but also concrete pravoustanovitelnye actions from the basic international subjects - the states. [168]

we Will bring a result: today in connection with the review of offered concepts to speak about occurrence of a new source of international law in the form of certificates of "domestic law" of the international intergovernmental organisations prematurely. Distinctions between the requirements shown to a source of international law, and real conditions of creation of social norms in considered area the international interstate organisations are unequivocal and great enough. We believe, it is possible to speak only about the outlined tendency, or, even less that, the new phenomenon which actively develops in the international life and should be under steadfast attention of the doctrine and practice.

unfortunately, the developed interstate practice of underestimation nejuridicheskih and their roles in a regulation of the international relations have led to desire to give to these norms bolshy an impulse and to include in structure of international legal norms, that, apparently from earlier considered, brings mess in hierarchy of norms of global standard system.

Thus, it is necessary to see, on the one hand, that the norms accepted by the international interstate organisations - an essential way of a regulation of the international relations, but their equating with legal rules leads to belittling of value of legal rules and at all thus does not raise authority of moral and political norms.

6.2. The criticism of the concept concerning giving of quality of a source of international law to certificates from area of "the external right” some international intergovernmental organisations

One more scientific problem concerning to individual normotvorchestvu of the international interstate organisations, is connected with area so-called “the external right” international intergovernmental organizatsy and recognition attempt to some extent a validity behind the certificates turned to the states of "the external right” international intergovernmental organisations - declarations and resolutions. The scientific discussion which has arisen on this basis first of all is turned to normotvorchestvu the United Nations as universal international interstate organisation, its specialised agencies, the regional international organisations, as the most significant for the modern world community of tools of cooperation of the states.

estimating a situation, scientists offer following concepts for syo permissions: the concept of an unqualified recognition of a validity behind resolutions and recommendations; the concept of "the soft right” (a relative recognition of a validity behind resolutions and declarations); the concept of giving to resolutions and declarations of quality of "auxiliary" sources of international law.

So, according to the concept of an unqualified recognition of a validity behind resolutions and declarations, researchers safely carry declarations and resolutions of principal organs and United Nations specialised agencies, and also the regional international organisations

224

to international law sources.

so, for example, to one of authors it is written: “ In 1993 the General Assembly of the United Nations has accepted the Declaration on liquidation of violence against women - the universal legal document ” [169] [170] . Apparently, by the author of the citation of norm of the Declaration of HECTARES of the United Nations are allocated not only a validity, but also and quality universalizma.

it is not obviously possible to agree with the specified judgement, as as we already marked, norms of the international organisations - norms reglamentarnogo character. They differ from legal rules a number of criteria: creation procedure (simple voting without procedure supplementing it - signings, ratifications, etc.) ; Consequences of non-observance of norms (in case of non-observance of legal rules action is entered by specially developed legal mechanisms).

in this connection to the authors, dividing the concept about a validity of the certificates turned to the states individual normotvorchestva the United Nations, syo specialised agencies and the regional international organisations, investigating norms containing in these documents, nevertheless it is necessary to do reservations that these norms “... Do not form an independent standard basis of occurrence of interstate legal relations...”, as “... The model of legal behaviour in these norms nekonkretna, does not contain neither the rights, nor duties. The maintenance of this version of norms includes only components from area of the purposes, problems, intentions, motives, etc.” [171] .

a little bit other concept of a recognition of a validity behind certificates of "domestic law" of the international interstate organisations some authors (for example offered, E.A.Shibaeva), meaning, that in case in the resolution (declaration) there is a reference to norms of the general international law (customs or universal international treaties), at least, in this part the resolution (declaration) is valid, equal to force of a source of international law.

however, according to the author of the present research, the decision of the designated situation should look as follows: The behaviour of derivative international subjects (the international intergovernmental organisations, in this case) cannot be other, than it is offered primary subjects (states), therefore references in resolutions and declarations of the international intergovernmental organisations on norms of sources of international law - the natural order of things which are not influencing an estimation of resolutions and declarations with reference to forms of international law.

according to another (it is more moderate sorientirovannoj) the concept scientists, recognising insufficiency of the argument in favour of a recognition of resolutions and declarations of such significant international interstate organisations as the United Nations and its specialised agencies, the regional international interstate organisations, international law sources, nevertheless, aspire to give to a corresponding category of documents and norms containing in them the status very close to the legal. Thus authors appeal to high moral and political value of documents containing such norm, to aspiration of the states to adhere to the instructions containing in these documents, in the practice. For a designation of the status of the specified documents and norms containing in them supporters of the considered concept use the term “the soft right” (soft law) [172] .

the Concept of "the soft right” [173] not seems to us convincing on following bases:

first, the term “the soft right” is incorrect: or the right or is not right, as any special signs distinguishing group designated by this term of norms others nejuridicheskih, created by the international intergovernmental organisations, the nanosecond exists (their nanosecond supporters of the concept) result also;

secondly, the considered concept does not maintain criticism under the form normotvorchestva, the same as also the concept about presence at resolutions and

declarations of the international interstate organisations legal

. 229 FORCES.

the Resulted arguments, according to the author of the present research, show a concept inconsistency of "the soft right”.

one more concept connected with attempt to define a place of certificates of "the external right” international interstate organisations of the highest level - the concept of "auxiliary sources” international law. 2 0

the Criticism of the concept of "auxiliary sources” international law in the form of resolutions and declarations of the international interstate organisations, not represented to us enough weighed, is addressed as to the term “an auxiliary source”, and to procedure normotvorchestva in a considered case.

First, whether there can be a source of law auxiliary? The source of law - a way obektivirovanija a standard material and giving to it of a validity. According to such definition nejuridichsskaja the norm cannot simply contain in the source of law. Therefore the term “an auxiliary source” is incorrect and more pertinently, from our point of view, to use the term “auxiliary means” as it and is formulated in item 38 of the Statute of International court of the United Nations. It is obviously necessary to pay attention that in item 38 of the Statute of International court of the United Nations in connection with which erroneous interpretation there was a concept of auxiliary sources of international law, not the term “the auxiliary source” is used, and in the item “d” the term “auxiliary means” (“is used... as subsidiary means for determination of rules of law...” ).

Secondly, procedure of creation of resolutions and declarations of the international interstate organisations as already it was marked earlier, mismatches procedure of creation of sources of international law, that the nanosecond allows to consider norms containing in them legal.

thus, it is necessary to establish a concept inconsistency of "auxiliary sources” international law, no less than before the considered concepts concerning giving of a validity to certificates “external normotvorchestva” international interstate

see: International law. The Dictionary-spravochnnk. Infra Th, 1997. With. 91. About necessity of specification of the term “the auxiliary source 1 ’ with reference to resolutions and declarations of the international intergovernmental organisations see: Kovalyov A.A.one more the sound textbook.//MZHMP. 1999. ¹ 1. With. 188-189.

the organisations (the United Nations, its specialised agencies, the regional international interstate organisations).

In connection with stated, it is represented logical to draw a conclusion about impossibility of a recognition behind the resolutions turned to the states and declarations of the international interstate organisations (even with so high status as at the United Nations, of its specialised agencies, the regional international interstate organisations) not only the force equal to sources of international law, but also quality of the sources strongly approached to international legal, as the procedure of creation of these norms (and obektivirujushchih their not legal sources) does not meet the requirements, shown to process of creation and existence of norms of international law.

Thus, the author of the present research suggests to refuse in the doctrine of international law from following concepts, - concepts of an unqualified recognition of a validity behind resolutions and declarations of the international intergovernmental organisations, concepts of "the soft right” (a relative recognition of a validity behind resolutions and declarations), concepts of giving to resolutions and declarations of quality of "auxiliary" sources of international law, - which supporters defend the point of view about a recognition of quality of sources of international law behind certificates so-called “the external right” some (the most significant for the world community) the international interstate organisations.

. Z. Concepts, concerning possibilities moral and political

norms

the Concept essentially opposite to earlier considered concepts about giving to resolutions and declarations of the international interstate organisations of the status of sources of international law, the scientists recognising behind the investigated category of documents character of exclusively recommendations offer.

so, for example, S.JU.Kolosov referred in the scientific article to a number of declarations (about the rights of the child of 1959, about the rights of mentally retarded persons of 1971, about the rights of invalids of 1975, etc.) which named the documents containing the recommendations to the states. [174] Also ML. Entin specified, that “... Resolutions of Parliamentary Assembly of the Council of Europe have recommendatory character...” [175] .

the authors cited as an example under the term "recommendatory", most likely, mean absence of compulsion at a considered category of documents and norms containing in them. However, it is represented, it is necessary to specify, what quality of the norm named the recommendatory; whether its observance is necessary at any level or it can renounce absolutely without serious consequences?

on this theme, with reference to certificates SBSE, A.Krajkemajer argued as follows: “ Statement of a question on the legal nature of arrangements within the limits of SBSE [176] is natural. From the point of view of international law these documents do not carry a binding character: here it is a question of statements and intentions ” [177] . Apparently, the author has initially emphasised on neobjazatelnosti a considered category of norms, however, thus, complained that“... Such approach in the field of human rights often had a negative legal estimation. In the given area it is especially important to aspire to a binding character of documents, otherwise such position can lead to non-observance of human rights ” [178] . As a result of reasonings the same author has unexpectedly come to the opposite previous thesis to a conclusion:“ To arrangements within the limits of SBSE concern, as a rule, as international treaties. They have got a binding character in any measure... Arrangements within the limits of SBSE have stimulating influence. [179] They are capable to regulate behaviour of the states on a level with norms of international law (everywhere in the paragraph our italics - Island L) They can be considered as the indicator of occurrence new mezhdunarodnopravovyh ­ standards ”. [180]

A.Krajkemajsr's Concept about recommendatory value of a considered category of norms not seems to the author of the present research convincing on following bases: resolutions and declarations are the rules containing the rights and duties, which states were obliged to observe (that is reflected in constituent instruments of the United Nations, its specialised agencies, the regional international interstate organisations); on the basis of constituent instruments of the corresponding organisation for non-observance of the norms created by the organisation, sanctions are provided.

opposite, compulsion of considered documents and norms containing in them is reflected in A.V.Torkunova's concept which, addressing for example the General declaration of the rights and freedom of the person of 1948, underlined that exist:“ ... Base principles and the values approved by the General declaration as a standard and practical target problem, to which performance should aspire all (italics to us - Island L) the people and the states ” [181] . We will underline only, that the people and the states should aspire to observance of norms, obektivirovannyh not only in the General declaration of the rights and freedom of the person, but in all sources both legal, and moral and political character.

I.P.Blishchenko's also underlining the importance and compulsion of the considered category of certificates concept is similar:“ ... A Number of resolutions of General Assembly recognise even more often as obligatory... The Fact remains the fact, that the states are obliged to observe a number of decisions (our italics - the Island). For example, the General Declaration of human rights, the Declaration on declaration of independence to the colonial countries and the people or other documents of General Assembly accepted unanimously ” [182] .

However, also it is necessary to concretise what to recognise as obligatory for execution“ a number of resolutions ”as has formulated it I.P.Blishchnko, and all resolutions, and also declarations of the United Nations, its specialised agencies, the regional international interstate organisations as compulsion of these documents is indisputable though it is compulsion not in legal, and in other (morally - political) a sphere of action follows not. As acknowledgement to it serves as well that Charters of the mentioned international intergovernmental organisations do not demand unanimous will of member states for acceptance of resolutions and declarations, - for them there is a order of an establishment of compulsion, - the norms fixed thus are other, than legal, with a kind of norms and operate on other (not legal) level.

One more example: M.L.Entin, classifying the norms, in prison Parliamentary Assembly of the Council of Europe under the Russian demand (further, the Conclusion) which named "recommendations", has divided them into some groups.

to one of groups the author has carried those norms of the Conclusion “... In which the list of the major conventions of the Council of Europe is given, without participation in which the full membership all the same remains incomplete...” [183] . It is obvious, that "recommendations" (as names their M.L.Entin) if they did not assume compulsion of observance, nanosecond could influence volume of the rights of a member of the international organisation, that once again underline necessity of observance of norms of resolutions and recommendations of the international interstate organisations, which though and on other, than legal, level, but are nevertheless a kind of norms.

One more group of norms, according to M.L.Entina, “... Form the recommendations, concerning continuations of transformations already existing in Russia... These recommendations identify areas of an internal life of our country which cause the greatest concern (our italics - Islands L) From the point of view of the European standards ” [184] .

It is necessary to notice, that as a member of the Council of Europe, Russia is obliged (already at legal level as it is fixed in the Articles of incorporation which are also the international treaty - an international law source) to observe, including, decisions SE concerning the European standards (in the form of resolutions and declarations); and consequently to designate considered kinds of certificates and norms containing in them only as recommendations, from our point of view, incorrectly.

on the basis of a doctrine and practice estimation it is possible to draw a conclusion: the norms containing in decisions and resolutions international intergovernmental organizatsy, not being legal, are, nevertheless, rules, norms, though also other, than legal, level; it is impossible to substitute their maintenance for the term the "recommendation" concerning more likely to a semantic way of a formulation of the rights and duties.

that considered norms are obligatory at moral and political level that bear corresponding (moral and political) responsibility for their default of the state, I.I.Lukashuk has underlined, in particular: “ ... Absence at resolutions of General Assembly of a validity at all does not mean, that them it is possible to consider in general to what nanosecond obliging. They oblige morally-politically and have the mechanism of influence on the international relations ” [185] . The Same thought has been once again underlined by I.I.Lukashukom when he suggested to add the name of arising branch of international law“ Responsibility of the states "word-combination" on international law ”. I.I.Lukashuk has proved the offer, in particular, that“... Responsibility can be not only legal, but also moral or political ” [186] .

In connection with stated it is represented to the author of research what to use the term “recommendatory norm” in relation to the norms containing in resolutions and declarations of the international interstate organisations (the United Nations, its specialised agencies, the regional interstate organisations), incorrectly. This term from perception positions weakens force of norms of resolutions and declarations, can provoke the scornful relation to them in practice, and also, leads to that, wishing to defend high value morally - the political norms, some researchers resort to another dangerous

extreme measures: equate them to the legal rules containing in sources of international law, weakening value of the last.

It is thought, it is necessary to refuse the term “recommendatory norm”, having replaced with its term “moral and political norm”. It is represented justified as many authors, not using the term “morally - political norm” it is direct, mark this quality behind norms of declarations, resolutions and as a whole certificates so-called “the external right” international interstate organisations.

so, for example, M.L.Entin, arguing on a main objective of inter-parliamentary cooperation within the limits of the Council of Europe, Parliamentary Assembly reflected in documents, has considered, that this purpose consists in “... The statement some kind of political and a cultural accessory, formation of a certain European generality of all those who participates in work of Assembly and refers to it” [187] . As it is represented, the author of the citation has underlined moral and political character of a considered category of documents.

Moral and political norms and obektivirujushchie their sources operate in the international system of standard regulation near to legal, and in some cases in the absence of legal mechanisms can remain unique regulators of the international relations for a long time. Advantage of moral and political norms and, accordingly, obektivirujushchih their moral and political sources, is simplicity of creation (as the multistage system of the coordination vol as it is provided for process of creation of legal rules and sources is not necessary), and, owing to it, as much as possible immediate readiness for application.

in a sense it is possible to name Moral and political norm and the auxiliary mechanism of development of all system of the international legal rules as frequently it acts the "trial" legal rule before acceptance of the similar maintenance: To the states in some situations can be easier to begin settlement of any question with norm of moral and political character.

this phenomenon was underlined at the fiftieth session of the Commission on United Nations international law in 1999 by the Australian professor Dzh. Crawford when, arguing on formation of the right of the international responsibility as international law branches, has told: “ The governments concern codification of the right of responsibility rather cautiously. Therefore at the first stage it is expedient to codify only obshi º principles and to issue them in the form of the declaration of General Assembly of the United Nations. Results of the first stage will be considered in the subsequent work. Such approach will give the chance to accelerate acceptance of main principles of responsibility that has serious practical value ” 244 [188] .

To advantages in certain situations of certificates morally - political character of the most significant international interstate organisations before international law sources as it will seem it is paradoxical, it is possible to carry absence of a validity of norms, obektivirovannyh in such form. Thereupon A.Krajkemajer, analyzing character of certificates SBSE, has noticed, what exactly“... Unessential {it is visible, legally unessential - our italics, Island L) Character of arrangements can facilitate the general development of process SBSE as provides to institutes SBSE necessary flexibility ” [189] .

Practice shows, that working out of very many universal sources of international law was preceded by acceptance ­ moralnopoliticheskih documents of the similar maintenance. For example, the Convention on the rights of the child of 1989 was preceded by the Declaration on the rights of the child of 1959; Pacts about human rights of 1966 were preceded by the General declaration on human rights of 1948. This list can be continued, that, in turn, once again confirms, that the legal rule and ìîðàëüíî* political norm - not same.

it is necessary to notice separately, that among norms (moral and political), accepted the international organisations, allocate one more group of norms demanding judgement from the point of view of the doctrine of a source study. The unified technical standards which are created annually by the international authorisation of technical rules mean.

it is necessary to underline, that it is a question of the documents having the form of certificates of the international intergovernmental organisations, instead of on Conventions and Additional reports to them, being international treaties and according to the Viennese Convention on the right of international treaties of 1969 having also a validity [190] .

Norms in the field of the technical standards, accepted by the international organisations, name "prozelitnymn", making a start from the Greek word "prozelit", meaning transition in new quality. Similar, but narrower, transfer has a word "prozelit" and from other languages: From English - "novoobrashchyonnyj" (to turn into the belief) [191] , from German - also "novoobrashchyonnyj" (in the doctrine, the belief, the new adherent [192] , aspiration to hire, win round [193] ). The Italian and Latin dictionaries of transfer of nanosecond offer.

concepts of scientists of a place prozelitnyh norms in

normotvorchestve the international intergovernmental organisations are various. So,

E.A.Shibaeva, differentiating normotvorcheskuju activity international

the intergovernmental organisations on 1) the conclusion of contracts with participation

the international organisations and 2) participation of the international organisations in

normotvorcheskom process of the states, allocated within the limits of the second point

following two kinds of participation:) acceptance of texts of multilateral conventions in

frameworks and under the aegis of the international organisations; Acceptance international

administrative and technical regulations. [194] [195] In frameworks normotvorchestva,

designated in the item, the named author allocated acceptance actually

the international administrative regulations, and also preparation

“technical norms (rules ¿*. And, in spite of the fact that E.A.Shibaeva

carried technical rules and administrative regulations to one kind

normotvorchestva the international organisations, it divided among themselves these

kinds of documents, seeing the main distinction between them preparations, acceptances, and, probably, cancellation are perfectly in order w 252

.

other concept is offered T.M.Kovalyovoj who also allocated“... Administratively-reglamentatsionnye certificates published by the international organisations... ” As display normotvorchestva the international intergovernmental organisations, however, did not divide regulations and standards, underlining, that “... For the name of the given category of decisions the general concept“ regulations "or" standards ” [196] will be used. It is obvious, that it only terminological distinction between regulations and the standards, explained by the tradition which has developed in the concrete international interstate organisation admitted.

not all authors divide the concept about necessity of allocation of technical standards as a special kind normotvorchestva the international organisations. So, So-called neshataeva has generalised all certificates so-called"external"normotvorchestva international

the interstate organisations under the general concept“ recommendation resolutions - ” [197] . At the same time it is known, that within the limits of the same international interstate organisation resolutions (the higher or plenary body) are accepted, and also administrative or technical regulations, rules or standards which have procedure of working out distinct from resolutions [198] are developed and published.

it is obviously important to Author of the present research to delimit technical standards from other certificates individual normotvorchestva the international organisations as these certificates differ from the others both acceptance procedure, and a functional purpose: it, first of all, technical specifications which establish level of requirements to professionalism of the experts using and maintaining technical devices; also these norms forbid use of those means which are recognised by the world community of the states by harmful or unsafe.

Technical standards are not automatically obligatory for member states (for example, standards MAGATE are obligatory for application only Agency in its own activity) and the essence of these documents is that, that, being are turned to member states the concrete international interstate organisation as to the international subject, their final addressees are physical and legal bodies of member states as participants of the international economic relations. In particular, commercial rivalry predetermines interest in prozslitnyh norms and high level of their observance.

thus, working out by the international interstate organisations fixed in standards and technical rules prozelitnyh norms is justified, as this category of norms is quickly created, practically immediately comes into effect and also can be quickly replaced by new group of standards.

Interest in norms of standards (technical rules), the attentive relation and performance by the states (and, mainly, their physical and legal bodies) these norms in the conditions of economic competitive struggle can provoke visibility of affinity prozelitnyh norms to legal, as misleads some authors.

as an example of such error we will result following judgement: “ Inherently prozelitnaja the norm is symbiosis of technical standards and legal establishments in which result it is formed difficult juridiko - a technical design ” 256 .

it is not obviously possible to agree with the author of the citation. In practice prozelitnaja the norm on a way normotvorchestva differs nothing from norm of moral and political character and is its version. This kind nejuridichsskih the norms created by the international interstate organisations, is allocated with only substantial component: prozelitnaja the norm reflects requirements to technical standards and prospective level of competitiveness.

thus, the author of research believes erroneous to carry to a category prozelitnyh the norms reflecting any technical requirements, but containing in legal international documents: both in international treaties, and in appendices to them, and other components. For example, the International convention on protection of a human life on the sea includes a number of the norms fixing the requirements to the case of a sea vessel and its device; the Convention on preparation and diplomirovanii seamen and execution of watch 1978/95 establishes requirements to knowledge of members of a ship command, including in technics area. These containing in conventions, norms differ from prozelitnyh both subjects normotvorchestva, and acceptance procedure, and non-observance consequences, and also order of their (norms) of change or cancellation as are legal.

on the basis of stated it is possible to speak with definiteness about necessity to apply the term “prozelitnaja norm” only to the technical standards developed by the international interstate organisations, and not to apply this term to norms with a maintenance, but fixed in legal documents.

Nevertheless, absence of force of a source of international law at prozelitnyh norms at all does not belittle their value. These norms are convenient, necessary and even are favourable to the states (mainly, to their managing subjects), therefore, as a rule, are honesty observed by the last; so, in the field of the international marine law the regulation of questions of sea navigation, in the field of the international space law - questions of remote sounding of the earth, in the field of the international air law - questions of system of air movement is actual.

generalising all considered in connection with possibilities of norms individual normotvorchestva the international interstate organisations, it is necessary to notice, that these norms represent important though also distinct from legal instructions, a category and possess following qualities;) participate in regulation of the international relations (often on a level with legal rules); Are easier perceived by the states in quality

gi Nomokonova E.I1. International legal regulation navigating

obligations (because of absence of a validity);) can act as a "trial" variant before fastening of the legal rule of the similar maintenance; create uniform (though also not legal) rules for regulation of relations of the states in special areas.

in this connection, the author of research believes, that it is necessary to refuse in the doctrine of international law the designation concept "recommendatory" the norms containing in resolutions and declarations of the international interstate organisations (the United Nations, its specialised agencies, the regional international interstate organisations), having left in the use the term “morally - political norms”.

Besides, among moral and political norms the group prozelitnyh norms which are allocated in connection with special qualities is isolated: besides already designated qualities inherent in all moral and political norms, the first possess additional characteristics owing to that are created specially for settlement of economic competitive struggle between the states (in a broad sense):) they are claimed, being in close interaction with economy, and are caused by it; they are quickly created and practically at once start to operate, but also quickly and are replaced with new standards; they are honesty carried out by the states (and their managing subjects) because of unwillingness to miss benefit (for example, commercial, in a situation of statutes IKAO, IMO);

they reflect tendencies of occurrence of new international standards;

they differ simplified (temporalnym) a change principle: The late norm changes early without additional procedures, only on request of competitive struggle.

on the basis of doctrine and practice research, the author of dissertational work believes also, that in an international law science

Safety: package approach.//MZHMP. 2000. ¹ 3. S.

it is necessary to refuse the perception concept in quality prozelitnyh the norms of rules of a maintenance fixed in sources of international law; also it is necessary to give due to justice of the concept of that prozelitnymn norms are only norms of technical rules and the standards, developed individually international

mezhgosudarstvenny mi body izatsija mi.

Finishing the paragraph, it is necessary to notice also, that the tendency of penetration of the international organisations in process of the international law-making now is obviously traced. However today, as it is represented to the author of the present research, this phenomenon can be considered only as the tendency demanding the careful analysis and tracing as the norms created as a result normotvorchestva of the international interstate organisations, do not type all necessary characteristics which would allow to equate them to the legal.

the questions arising in the doctrine about sources of international law, in connection with normotvorchestvom interstate integrativnyh formations (on EU example)

Interstate integrativnye formations, such as the European Union, Nordic Council, Commonwealth of the independent states, as a whole new to system of international law of the phenomenon, concerning a question on the nature and on specificity normotvorchestva which exist concepts opposite inherently.

For the analysis of concepts the author of the present research has chosen the European Union as structure the most developed, having brought themselves an attention to the question, in what measure (at a today's stage of development of EU) tendencies of occurrence of new kinds of sources of international law and what features normotvorchestva EU, first of all, with reference to the doctrine about international law sources can be found out.

to classify certificates of law-making of EU, in the doctrine at debatable level terms "original right" and “the secondary right” European Union are entered. As sources of "original right" of EU understand documents of constituent character - dogovory on which basis are created and the organisations of the European community and the European Union, that is indisputable sources of international law (international interstate dogovory) function. [199]

sources of "the secondary right” are understood as the documents published by bodies of EU on the basis and according to certificates of higher validity, - sources of "original right" of EU to which they cannot contradict, and, in case of the contradiction, are replaced with the last.

one of the problems arising in the doctrine about sources of international law, concerns a question concerning, whether certificates of "the secondary right” EU as international law sources can be considered.

the matter is that the impression as if "legislation" of the European Union has the same mechanism of action in relation to member states, as obektivirovannye in sources of international law of norm of international law as a whole under the relation to the states on which extend is at first sight created.

there are following bases for a conclusion about such similarity: Certificates of law-making of the European Union extend to all sovereign EU member states more often; in some cases are obligatory even for those participants of the European Union who have not expressed on it the consent; insubordination to instructions of these certificates leads to application concerning the states-infringers of sanctions.

in other words, a number of certificates of the European Community possesses in territory of each country-participant the higher validity, destroying norms of the corresponding national legislation contradicting them even if the certain country voted against acceptance of the concrete document of EU: [200] it is valid, the higher, but not a representative body of the European Union (Commission) zakonodatelstvuet concerning the competence in such a manner that its decisions operate in territory of EU member states without the additional consent of the last [201] . The special judgement is demanded by that fact, that collisions between the right of EU and the national law dare in favour of the European right [202] .

It is represented expedient to address to consideration of legal acts of EU which are published in the form of regulations, instructions, decisions, frame decisions, decisions, reference points. From the listed documents in connection with the purposes of the present research the greatest interest is represented by regulations and instructions.

so, the regulations, have a binding force and direct action in EU territory 26 ’; thus does not demand ratification for the introduction into action as so EU member states have agreed, accepting constituent instruments; member states cannot change norm of regulations for the internal legislation [203] [204] . By means of regulations as tool of unification of EU uniformly regulates public relations in all territory.

the edition instruction Community generates a duty of member states to bring the current legislation into accord with its rules (to accept the novel to cancel or make amendments to existing laws and others legal and pravoprimenitelnye certificates), thus independently defining a way of inclusion in national legal system of the harmonised norms. The instruction is obligatory “for each member state to which it is addressed, concerning expected result, but keeps behind the national authorities freedom of choice of forms and methods of actions” (item 249 of the Contract on EU). However, for a case when member states did not incorporate instruction position in the specified term in the national legislation, the European Court obliged “... To provide preservation of uniformity of the right at interpretation...” (Item 164 of the Contract on EU), has broad interpreted documents of Community and has enacted, that the rules containing in instructions, can be valid direct action if has expired term of their incorporation; if they (instructions) are unconditional and exact enough; if they allocate citizens and legal bodies with the rights concerning public authority bodies. In this connection, probably, it is possible to speak EU about one more institute of direct action “secondary right”.

to sources of "the secondary right” European union it is accepted to carry also the international treaties concluded by the European communities or the Union as a whole with “the third countries” (the countries, nanosecond entering into EU) and the international organisations. [205]

to consider “the secondary right” EU as an international law source, followed prove, that “the secondary right” EU regulates the same subject (interstate interimperious relations), as international law, a method inherent mezhdunarodnopravovomu ­(exclusively individually-conciliatory).

the Essential role in the decision of this question reference of the European union to the concrete form of the device - to a federative state, the international organisation or confederation would play.

for example, such scientists as K.Hartli, K.H.Kurt and others fairly agree, that lines of a federative state at the European Union at the moment much more [206] , than lines of the international organisation. [207]

However, there is also a concept of that the European Union cannot apply for the federative state status yet (B.N.topornin, A.JA.Kapustin) on a number of essential signs. [208]

Also in a science concepts (A.Spinelli) that EU - international “were put forward... The political organisation with own status...” [209]

it is valid, the European Union has been organised originally as three international organisations on the basis of international treaties though since then much has changed to that acknowledgement - the facts mentioned earlier.

however as has fairly noted B.N.topornin, “... The European Union has not received the requisites, allowing to consider it as the independent international organisation...” [210] . Is not present “... Even a hint that in member states the legal capacity recognised as national legislations for legal bodies is given to the Union. To the European Union thereby is given up in right to get and alienate movable and real estate and to act as the party in legal proceedings...” [211] .

Thus, it is represented to us, is extremely problematic to consider EU as the international organisation in full sense of this word.

the essence of the nature of the European Union does not fall and under confederation signs.

opinions that EU - special independent political system, excellent as from international law system, so j from systems of the national law of member countries (D.Oppermsn, R.A.Mjullerson, S.J.Kashkin, A.JA.Kapustin) are expressed also. [212]

Except the listed lines coinciding with lines of traditional political structures, this system has absolutely special lines. So, feature of certificates of "the secondary right” EU is expressed in “... A known mismatch between hierarchy of these sources, on the one hand, and, on a being, a horizontal parity publishing them pravotvorcheskih Community bodies. . Certificates of a various validity are published by the same bodies ” [213] .

Frequently and in documents of EU the idea about EU as to special legal system is spent. For example, in the decision of the European Court on business of Headlights Hent end Lu 6/64 it is specified, that“... Unlike usual international treaties the Contract on the European Community has created own legal system ”.

B.N.topornik so has fairly commented on this problem:“ Though the legal nature of the Union is distinct from communities, "does not hold out" to them, the Union at the same time is beyond the traditional interstate Union. On a number of parametres of EU continues to develop principles of the Union of special type ” [214] .

At the same time, many scientists consider a modern condition of the European Union transitive from the international organisation to federation (Since Hartli, S.J.Kashkin, A.JA.Kapustin [215] , and mark mobility of the right of EU,“... As, having arisen as international, EU right more and more evolves in a direction of the right national ” [216] .

Doing similar forecasts, scientific, as a rule, mark (and the author of the present research agrees with similar care), that is not known (at the given stage of development of EU), whether will result this“ a transition period ”Community in federalism, or to any other political structure. In B.N.topornina's fair opinion“. . The European Union in its present shape is considered not as the fallen asleep, definitively generated structure, and as a dynamical, developing phenomenon... ” [217] .

It is necessary to agree, that integrativnye the associations, similar EU (the CIS, to Nordic Council), represent new enough to a science of international law of the phenomenon. The problem of their legal nature and, in particular, the status of their certificates of law-making is not resolved today by a science of international law and requires in serious doktrinalnom research.

thus, coming back to a question on specificity normotvorchestva EU, is obviously necessary otmstit, that not uniform picture of kinds of certificates, addressees of certificates and accepting bodies, ways of acceptance and mechanisms is observed. Therefore, the author of research believes, that now, it is necessary to speak only about the positive tendency of development normo - and law-makings within the limits of EU, io nanosecond testifying by all means about occurrence of a new kind of sources of international law (it is a question of traditionally hand-written norms), and is faster about the tendency confirming readiness of the states to adapt to a new order normotvorchestva in connection with specificity of EU as special intergativnogo of association.

Coming back to a question on possibility to consider “the secondary right” EU as international law sources, the following is important to notice certificates. Perhaps, it would be necessary to refuse conservative views (if they have turned to dogmas) that international law sources can be created only with the assistance of the states and include in a circle of subjects of law-making and integrativnye associations in relations with member states on EU model. [218] Finally, criterion of obligatory participation of the states in the international law-making (not belittling its importance) is artificial, that is developed by a civilisation with the account of those means which are accessible to a civilisation at a certain stage of its development (once, for example, and the international organisations did not admit the international subject).

At the same time it is represented, that this question demands not only theoretical judgement, but also long practical check to see what reaction of EU member states (in particular) on the occurring phenomena. After all it is known, for example, that the states have ambiguously concerned euro introduction, and process of creation of EU has caused misunderstanding and even disagreement of a considerable part of the population of the states which have entered into it. [219]

It is represented also, that (“the secondary right” as it was already marked) to number of sources of international law it is possible to give the unequivocal answer to a problem of possibility of reference of the European right only with the reservation, that for today and at this stage of development of the European Union, in our opinion, “the secondary right” (concerning those sources of law of EU which are not classical international interstate contracts as dogovory EU member states with the third countries) the European union cannot be considered as an international law source.

276

with. 149

we Will bring results of the second chapter of research.

at first sight, can seem, that now the theme of sources in the international law doctrine is far not such monolithic and unequivocal as it was earlier. However by consideration of existing concepts concerning form development obektivirovanija norms of international law, the opinion affirms, that the table of ranks in the source study doctrine is not shaken yet.

the considered concepts concerning form development obektivirovanija norms of international law it seemed to the author of dissertational research expedient to differentiate on two independent "layers": concepts concerning perfection of classical forms of international law and the concept concerning attempts to enter into a circle of traditional sources of international law new forms.

having investigated the first group of concepts (concerning perfection of classical forms of international law), the author has come to conclusion, that representatives of the doctrine of international law who have traced new lines at classical forms of the international law, evolutions of the last reflecting objective process are right the hardware: First, occurrence of the universal contract and its subspecies as special form of the international treaty; in - the second, formation of a new (additional) way of formation of the international custom (passing a stage of long practice of application).

These conclusions of the doctrine are important because advanced kinds of classical sources of international law should take the place in the doctrine and adequately be perceived in practice.

concerning other considered group of scientific concepts (the concept concerning attempts to enter into a circle of traditional sources

international law new forms) the author of dissertational research has come to a following conclusion.

It is represented, that concerning perception of the general principles of international law as international law sources in the doctrine it is necessary to refuse the concept definitively as the general principles of the right are legal rules (a substantial part), instead of a special kind of sources of international law (form). Besides, Positions of this concept break hierarchy of norms of global legal system.

passing to the concepts which supporters approve, that as a result of development of the tendencies connected with normotvorchestvom of the international interstate organisations (both from "domestic law" area, and from area of "the external right”) and normotvorchestvom interstate integrativnyh associations (similar to the European Union) can arise new kinds of sources of international law, it is necessary to sum up, that for today such conclusion does not follow with necessity, as procedure of creation of considered documents (except for international treaties of EU member states with the "third" states which certainly are international law sources) cardinally differs from procedure of creation of legal international sources.

However, certainly, development tendencies normotvorchestva the international interstate organisations and interstate integrativnyh formations are necessary for tracing and comprehending within the limits of the doctrine so that the international law science did not lag behind practice. At a sight of the author of research, admissible for the doctrine as criterion of detection of new tendencies of development of the form obektivirovanija norms of international law practice judicial and the arbitration bodies, exclusively carefully concerning selection of an applied standard material to a certain extent can act.

in communication by the designated author of dissertation by distinction in procedures of creation of legal and not legal international sources, and also in connection with an incorrectness of terms against which corresponding concepts lean, it is offered to refuse in the doctrine of international law concepts: “ The soft right ”(as the legal rule cannot be more loyal, than from it it is required), and“ auxiliary sources ”international law (as in the item“ d ”item 38 of the Statute of International court of the United Nations in connection with which incorrect interpretation there was this concept, the term auxiliary means”, but not “an auxiliary source”) is fixed.

Coming back to the norms fixed in not legal international sources, developed by individually international interstate organisations, it is necessary to notice, that they should not be considered as only recommendations to the states as such norms are important and obligatory for the states and all world community, but on other, rather than legal, level. It is represented expedient in the international law doctrine to designate such norms the term “morally - political”.

- prozelitnye norms, according to the author of the present work, it is necessary to consider the Version of moral and political norms as norm which ìîãóò* to contain only in certificates individual normotvorchestva the international interstate organisations (technical standards) and in any way in international law forms as are not legal and are obligatory at other level even if on the textual expression are identical to legal rules.

according to the author of dissertation, the tendency of possible "development" moral and political (including, prozelitnyh) norms in legally obligatory, even in case of its positive end, will be realised long enough, and, that is more important, on other remedial basis. Dealing with of doctrine problems about international law sources, the author of dissertational research has found out, that each quarter of the century with necessity there is a question on approach to sources of international law of any group of the norms participating in regulation of the international relations as a whole.

nevertheless, the doctrine about sources as it sees, at present is not shaken, and consequently with an estimation of the designated tendencies it is necessary to be the extremely cautious as any disbalans with increase of a role of that an international law source is not, or, on the contrary, with understating of a role of that is a source, will inevitably be reflected in decrease in a role and belittling of value of original sources of international law.

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A source: LUTKOVA OKSANA VIKTOROVNA. the BASIC CONCEPTS of SOURCES of INTERNATIONAL LAW. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2004. 2004

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