<<
>>

§2. Questions of direct application by the states of the international norms about human rights.

The recognition of the rights and freedom of the person at the international level has designated a duty of protection of these rights for community.

In an international law science there are various opinions concerning direct application of the international norms in sphere of interstate relations.

But in my opinion, crucial importance the formulations of normative acts based on position ч.4 item 15 of the Constitution of the Russian Federation have. Mean norm ch. Z Federal act item 5 «About international treaties of the Russian Federation» about direct action of certain contracts, ч.2 item 7 of the Civil code of the Russian Federation about direct application of the international norms etc.

The sovereign equality of the states, non-interference to their internal affairs and respect of the rights and freedom of the person - these three principles of international law admit all states as the important elements of the modern world law and order. At the same time interaction of these principles generates considerable number of questions on limits of application of each of them, about their parity and certain discrepancy. Whether the sovereignty of the state from the point of view of its right any way is possible and irrespective of existing international norms and standards to define a mode customs and freedom of the person, and whether the principle of respect of human rights from the states of observance of this principle, despite their references to own sovereignty, on the other hand, allows to demand?

Considering this question, A.P.Movchan noticed, that by working out of the formulation of a principle of respect of human rights and fundamental freedoms of the state-participant of the all-European Meeting have come to conclusion, that all principles stated in the Final act «will be equally and to be applied strictly at interpretation of each of them taking into account others». However A.P.Movchan's conclusion does unequivocally in favour of a sovereignty principle - «thus, the principle of respect of human rights should be applied taking into account principles of the sovereignty and non-interference to internal affairs of the states, - principles which, in particular, provide, that« the state-participants will abstain from any intervention... In internal or the foreign affairs entering into the competence of other state-participant, irrespective of their mutual relations ».1

V.I.Zubrilin adheres to other position: «the Recognition of a principle of respect of the state sovereignty as a basis of relations between the countries does not mean, that the discretion of the states in definition of any actions has no limits or restrictions. In process of development of mankind,

' Movchan A.P.human right and the international relations. M, 1982.

С.22.

Strengthenings of its interdependence the maintenance of the state sovereignty is exposed to essential changes. Their mainstream consists that the states agree about the voluntary submission to rules and the decisions developed in common or accepted within the limits of the various intergovernmental organisations, going thereby on a way of self-restriction of the sovereign rights ». [21]

Activity of the states on maintenance of realisation of norms of international law requires, somewhat, even more steadfast attention, rather than them pravotvorcheskaja activity.

As marked A.S.Gaverdovsky: «any system of legal rules, it is as though brilliant it it has been developed, has no right to existence if it really does not influence a public life... Without right realisation, without filling of its norms by the live practical maintenance there can not be a legal regulation of public relations» [22]

Importance of research of a problem of realisation of norms of international law speaks as well certain specificity of their influence on adjustable relations. The basic feature that with the advent of each new norm of international law there are two kinds raznoporjadkovyh legal relations: on the one hand, legal relations between international subjects concerning the rights fixed in it and duties and, with another - between corresponding bodies of the states concerning realisation following from such norm international legal

Obligations. '

Questions of interaction international and the internal law were discussed both in domestic, and in a foreign science for a long time already and in detail enough. A number of statements had sharply negative character.

G.I.Tunkin wrote, that intrusion of regulating influence of international law into area of human rights does not mean that human rights are regulated by norms of international law directly, what they have ceased to be basically state internal affairs?

«Cannot be and speeches on international legal regulation of interstate relations», believed V.G.Butkevich, - «the state cannot oblige the physical person to execute norm of international law. The imperious instructions in this occasion can create only interstate norm which will execute the physical person»? S.V.Chernichenko objecting even against statement of a question on possibility of application of international law in interstate sphere »is especially categorical?

The supporter of a similar position E.T.Usenko says that owing to the state sovereignty in its territory its will can operate only.

41 ro^f ** ’? ***

The state sovereignty basically excludes possibility limits of its territory of the state will of other states, including the adjusted will concluded in the form of international law. That the rule representing norm of international law, has got a validity within national law action, it should get force national-rule of law, that can be reached the edition corresponding national-legal акта.1

Thus, those facts are not compared, that at «the adjusted will of the states concluded in the form of international law» there is also a will of the specified state that is why and it is not clear why the will of this state cannot operate in its territory directly. «Participating in creation of norms of international law, the state aspires to the maximum embodiment in them (protection) of the interests. The norm of international law reflects either identity of interests or their balance»?

Thus, if to hold the opinion E.T.Usenko, according to which necessary condition of compulsion of norm of international law for the concrete state the consent of the last to its acceptance the conclusion is not consolatory is - the modern international law does not give possibility to go in regulation and protection of human rights further, than on it the certain state will agree. [23 [24]

As much more effective the international law in sphere of protection of the rights of the individual appears if to recognise that there are areas, in

Which the states have no to recognise right not compulsion for themselves certain international legal instructions. Supporters of such approach name as similar certainly obligatory positions an interdiction of aggressive war, a genocide, aparteida etc. These scientists differently concern international legal regulation of human rights in the country.

For example, Canadian lawyer Dzh. Hamfri believed, that after the Second World War in international law there were «revolutionary changes» and the states any more have no right to refer to the internal jurisdiction at an establishment of a legal regime of the citizens. The individual, in its opinion, is nowadays protected directly by international law. [25]

The American professor R.Folk has been assured, that the concept of the sovereignty of the states and internal jurisdiction are incompatible with maintenance of the rights and freedom of the person. [26]

Achievement of efficiency of international legal efforts of the states on maintenance of a survival and well-being of mankind depends on their behaviour on international scene and substantially from realisation of accepted international legal obligations in the country national means, R.M.Valeev, including - by restriction in certain degree of the sovereign rights-writes?

Some supporters of positive interaction international and the national law believe, that it is necessary «to pass from stereotypes of transformation of the international treaty in the domestic law to direct application of the contract by our vessels, physical both legal bodies and official bodies» [27 [28]; «direct action on state territory of the contract and the international custom is the general tendency of the modern world»?

Analyzing this question in application to the Russian legal system, G.V.Ignatenko notices, that the modern international law is focused on all branches of the Russian right, to all aspects of a legal status of the person and a legal regulation of ability to live of the state and a society. Application of norms of international law any more is not a prerogative of the states in their mutual relations; such application becomes function of public authorities, including vessels at realisation of justice, various law enforcement bodies, officials, civil servants, the public associations, managing subjects. [29]

Its opinion supports also S.J.Marochkin, noticing, that being a part of legal system of the Russian Federation, norms of international law operate as those and generate legal effects in common (dress)

With norms of the domestic law?

On a question on, whether problems enter be sewn up human rights only in domestic jurisdiction of the state cannot the unequivocal answer. If on state territory there are the roughest and mass infringements of the personal rights is cannot remain internal business of the state and thus has no value, participates or not this state in the corresponding international treaty.

The majority of authoritative international lawyers approve, that at least an interdiction of such actions as slavery and a slave-trade, a genocide, aparteid, tortures, massacre, long any holding in custody, a regular racial discrimination, became usual norm international права.2

Thus, it is possible to draw a conclusion, that if the direct regulation of human rights, their protection and maintenance are carried out by the domestic law the maintenance of norms about human rights should be adjusted with international law. R.A.Mjullerson believes, what the state should soobrazovyvat the law-making in this area with corresponding international obligations?

As marks L.Henkin: «Those questions which are regulated by international law or agreements, are not ipso facto affairs,

’ Marochkin S.JU.action of norms of international law in legal system of the Russian Federation. Tyumen, 1998. With. 166-167.

2См.; Schachter O International Law in Theory and Practice. R.D.C. 1982. V.178-V. P.336; D, Amato A. International Law; Process and Prospect. N.Y. 1987. P.145.

’ Mjullerson R. A. Human rights; ideas, norms, a reality. M, 1991

С.21.

Entering into domestic jurisdiction »?

Developing the international certificates about human rights, the states have intentionally included in their structure the special block implementatsionnyh the norms which purpose - to provide the maximum unification of actions of the separate countries on their realisation. It has been caused by necessity of achievement of uniform understanding of essence of certificates about human rights and their realisation at national level.

However, as absolutely fairly notice A.B.Suntsov and JU.V.Sushchevsky, efficiency of realisation of norms of international law in bolshej to a measure depends on that, the national legislation will be how much prepared for this problem... 2

Presence of the international procedures and mechanisms, and also the international norms regulating protection of the rights and freedom of the person does not mean that interstate means should be bypassed or put on the second plan. On the contrary, special mechanisms and procedures and the international regulation of interstate mechanisms of protection of the personal rights urged to become an additional guarantee of performance by the states of their international obligations.

In those limits in which questions of protection of human rights do not enter into domestic jurisdiction of the state, the care of community of their observance is not intervention in domestic jurisdiction, but also to be shown such care should in the forms corresponding to international law.

’ Henkin L. Human Rights and “Domestic Jurisdiction”//Human Rights, International Law and the Helsinki Accord. Ed. T. Buergenthal. N.Y., 1979. P.22.

2Сунцов A.B., Sushchevsky JU.V.theoretical of a problem implementatsii norms of the international criminal law in Russia//the Moscow Magazine of International law. 1997. № 2. S.92-97.

<< | >>
A source: Samovich Julia Vladimirovna. the INTERNATIONAL MECHANISM of PROTECTION of the RIGHTS And FREEDOM of the PERSON: UNIVERSAL And EUROPEAN ASPECT. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 1999

More on topic §2. Questions of direct application by the states of the international norms about human rights.:

  1. Section 1. The ORDER of JOINT APPLICATION of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS In CONFRONTATIONS
  2. § 2.2. Interrelation of norms about human rights and the international ecological norms in regulation of rational use of fresh water
  3. Rusinova Belief Nikolaevna. HUMAN RIGHTS In CONFRONTATIONS: the PARITY of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2015, 2015
  4. Chapter 3. THEORIES of the PARITY of NORMS of the INTERNATIONAL HUMANITARIAN LAW And INTERNATIONAL LAW of HUMAN RIGHTS
  5. Implementatsija international legal norms about protection of a human life on the sea in the national legislation of the United States of America
  6. § 2. Problems of application of international law of human rights ratione loci
  7. §1.2. The maintenance of freedom of the discretion of the states as intrabranch principle of the right of the international protection of human rights
  8. § 3. Problems of application of international law of human rights ratione personae
  9. § 2. Methods of the permission of collisions between norms of the international humanitarian law and international law of human rights
  10. Chapter 2. International legal maintenance of rational use of fresh water with norms about human rights
  11. §1. Freedom of the discretion of the states as an intrabranch principle of the right of the international protection of human rights
  12. Chapter 2. BORDERS of APPLICATION of INTERNATIONAL LAW of HUMAN RIGHTS In CONFRONTATIONS
  13. character of international legal interaction between courts of justice of member states of the Council of Europe and the European court under human rights
  14. main principles of the international space law both their application and their application by the international organisations and the states.
  15. possible collisions of the Islamic concept of human rights with the international documents in the field of human rights
  16. § 1. The conventional principles and norms of international law and the norms of the Russian right regulating civil relations: Application priorities
  17. § 1. Participation of bodies on assistance to human rights and their protection in the international mechanism of protection of human rights