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§2.2. The Rules of law supposing application of the doctrine of freedom of the discretion of the states in international law

For deep studying of cases of application of the considered Doctrine it is necessary to pay attention to the above-named groups of rules of law with certain degree of "illegibility" in instructions and for the Doctrine role in a context of application of such norms.

In the general plan it will be a question of provisional rules. On expression of the professor And. V.Malko, provisional rules «order a behaviour variant, but thus give to subjects possibility within lawful means to settle relations at own discretion» [78]. Professor V.S.Nersesjants in turn notices, that «Such norms gives ample opportunities to the contract parties to define obligation conditions» [79].

Speaking about norms of international law, I.I.Lukashuk recognises: «Being the general rule, the norm cannot represent the optimum decision for all cases, more likely, it serves for this purpose as a starting point. In the course of application of norm specificity of a case cannot be ignored» [80]. Apparently, such understanding of norm of international law initially assumes possibility and expediency of application of the Doctrine.

I.I.Lukashuk, not naming the Doctrine, precisely describes its application in case of so-called norms of "the soft right»: «In new areas of international legal regulation frequently it is rather difficult to achieve a consensus on concrete norms. In such cases norms of" the soft right », differing bolshej flexibility to the aid come. As an example can serve dogovory on environment protection. In them type formulations« are used will undertake efforts "," how much it is possible "," when it is expedient »and t.p. It is represented, that norms of" the soft right »- the necessary element of international legal system solving problems, which not on a shoulder to" the firm right »» [81].

Professor V.V. Lazarev also allocates «rather certain norms» which, in its opinion, «do not contain all instructions and suppose possibility of variants with the account konyokretnyh circumstances. Such norms, in turn, podrazdeyoljajutsja on situational and alternative. The first suppose possibility of the discretion of the addressee of norms depending on situayotsii, and the second - give possibility of a choice from oboznayochennyh in the normative act of variants» [82].

Concerning the first group of considered norms of norm of "estimated" character, "rationality" and "necessity" [83] operate with such uncertain categories as, for example. The maintenance of norms of estimated character as professor N.M.Marchenko approves, «reveals in the course of right realisation» [84]. Existence of such norms expediently as it is in advance impossible to foresee all conditions in which will occur pravoprimenitelnaja activity. In this case the Doctrine will possess systematising action, giving, in particular, criteria of an estimation which can be used at implementatsii norms of "estimated" character (as it occurs in Court practice as we will be convinced later).

It is necessary to carry permissive rules to the second group. According to professor N.M.Marchenko, «social sense of permissive rules - granting to citizens and other subjects of law of certain possibility of the behaviour guaranteed by corresponding duties of other persons» [85].

It is necessary to note how «behaviour possibility» expression of professor N.M.Marchenko is close to the phenomenon studied by us. The doctrine with permissive rules will serve in a case as a principle establishing limits of measures which can undertake the states for realisation of the rights.

Into the third group of considered norms enter tselepolagajushchie norms. Some authors, for example, G.V.Ignatenko [86], name the given type of norms "program".

Characterising tselepolagajushchie norms, I.I.Lukashuk specifies, that the last «at first admit quality of international legal norms, and then gradually affirm as practice of the states. The principle of respect of human rights which for considerable number of the states has program character as a result of unavailability of their sociopolitical systems to realisation of the international standard in full» [87] is especially indicative.

The given type of norms does not explain, how this or that purpose should be reached. So occurs, for example, in a case to obligations of the states concerning maintenance economic and social rights of citizens [88]. Other example can be found in the system of regulatory legal acts existing in the European union (further – "EU"). Namely, EU instructions also are program documents [89].

In a context tselepolagajushchih norms the Doctrine will be the basic method implementatsii such norms.

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It is thought, that the revealed cases of use «discretion freedom» - application and interpretation by the states of norms of international law - open essence and the Doctrine status. It can be characterised as a principle of international law of protection of human rights with the two-uniform legal nature: it simultaneously and powers of the states on execution of instructions of international treaties, and a method of regulation of the international relations with participation international kvazisudebnyh the instances defining, whether is admissible Doctrine use at application of the given norm, and, in case of the positive answer, what limits of given freedom of the discretion [90].

So, the object of research is the live, progressive legal phenomenon generated by judiciary practice. The doctrine is not "Doctrine", the source of law in sense of article 38 of the Statute of International court of the United Nations. It acts, more likely, a principle of application of the international law, allowing to define limits of powers of the states at execution of international treaties by them, that in turn allows the international degrees of jurisdiction to check, whether compatibly such decision with norms of the international treaty.

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A source: Orehov Oleg Sergeevicð. Doktrina of freedom of the discretion of the states in practice of the European court under human rights. The dissertation on competition of a scientific degree of the master of laws. Kazan. -201

More on topic §2.2. The Rules of law supposing application of the doctrine of freedom of the discretion of the states in international law:

  1. §2.1. A role of the doctrine of freedom of the discretion of the states in international law
  2. the Chapter I. Concept and a place of the doctrine of freedom of the discretion of the states of international law
  3. §5. Application of the doctrine of freedom of the discretion of the states in practice of the international degrees of jurisdiction
  4. §6. Practice of application of the doctrine of freedom of the discretion of the states on affairs against the Russian Federation
  5. §3. Distinctions of cultural and historical type as the basis of necessity of application ofthe doctrine of freedom of the discretion of the states
  6. §4. Practice of application of the doctrine of freedom of the discretion of the states on affairs about a discrimination interdiction (as Convention item 14)
  7. §5. Practice of application of the doctrine of freedom of the discretion of the states on affairs about deviation from observance of obligations (as Convention item 15)
  8. §2. Freedom of the discretion of the states as the international legal doctrine: formation and development
  9. §2. Practice of application of the doctrine of freedom of the discretion of the states on affairs about protection of personal liberties (as item 8 item, 9, 10 and 11 Conventions)
  10. §3. Practice of application of the doctrine of freedom of the discretion of the states on affairs about property right protection (as the item of item 1 and 2 Reports № 1 Conventions)
  11. §1.1. The doctrine of freedom of the discretion of the states and right principles
  12. main principles of the international space law both their application and their application by the international organisations and the states.
  13. §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