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§ 2 Conventional principles of international law in sphere of work and sources of their fastening

One of the leading parts in an establishment of the international labour standards in the modern international law of master and servant is played by the conventional principles of international law in this sphere.

In the theory of the international public law terms «main principles of international law», «imperative norms-principles of international law» (jus cogens) are more extended and «the general principles of the right of the civilised nations», which parity with the conventional principles of international law up to the end is not found out and demands separate consideration. At some verbal similarity the basic and conventional principles of international law are not identical. We believe, that as by the present moment obshchepriznanny (are fixed in the Charter of the United Nations and a number of declarations), it is possible to establish all main principles of international law, that they are a kind of the conventional principles of international law. The last cover bolshy a circle of supervising legal ideas, including and the conventional principles of international law in work sphere.

Of a parity of the conventional principles of international law and jus cogens we basically share G.I.Tunkina's opinion which marks: «it is necessary to carry To imperative principles, in essence, all basic conventional principles of modern international law...» [789] To a conclusion about reference of the conventional principles of international law to norms jus cogens V.L.Tolstyh though supposes their existence in the form of legal customs [790] comes also. In our opinion, this conclusion taking into account putting international legal practice can be extended not only to main principles of international law, but also on the conventional principles of the international law of master and servant. Anyway the SQUANDERER considers the principles concerning the basic rights in sphere of work, and also following of its Charter, as obligatory for member states irrespective of the fact of ratification as them of eight fundamental conventions the SQUANDERER.

The conventional principles of international law have similarity and to so-called general principles of the right of the civilised nations which are mentioned in item 1 of item 38 of the Statute of International court of the United Nations. Difference of the general principles of the right from the conventional principles of international law just also consists that the first carry intersystem and obshchetsivilizatsionnyj character («nobody can be the judge in own business», etc.), whereas the second - "product" of international law which this or that impact and on national legal system, however, can make.

As standard base for definition of value of the conventional principles of international law for national legal system the constitutional norms, as a rule, act. According to item 8 of the Constitution of Belarus the given state recognises a priority of the conventional principles of international law and provides conformity with it legislations [791]. Defining value of this constitutional norm G.A.Vasilevich as has capaciously expressed «a vector of development of all legal system» [792].

Let's pay attention, that unlike ch. 4 items 15 of the Constitution of the Russian Federation and ch. 3 items 6 of the Constitution of Kyrgyzstan where in the conventional principles and norms of international law are named by a component of their legal system, admit item 8 of the Organic law of Belarus a priority not norms, but only conventional principles of international law.

For comparison in item 9 of the Constitution of Kazakhstan more streamline formulation about respect of principles and norms of international law contains, and agrees ch. 2 items 3 of the Constitution of Armenia the state provide protection of fundamental laws and freedom of the person and the citizen according to principles and norms of international law.

Legal definition of the conventional principles of international law neither in international law sources, nor in the legislation of member states EAES is not present. We will short consider sights of modern experts in international and in the law of master and servant on the given legal category.

Russian researcher E.J.Zarubaeva carries these principles to «a version of the general principles of the right», «the initial imperative beginnings» [793], O.E.Lapina marks their international legal nature, but at the same time specifies, that «their universality allows to extend sphere of action and in internal legal system» [794]. In opinion And. G.Tikovenko, the status of the conventional principles of international law is given «most to the general and important, usual norms of international law officially recognised as all states all or nearly so as obligatory» [795]. The conventional principles of international law is a product not national, but universal culture in the broad sense of the word. From a position of distinction natural and a positive law there are bases for their reference to the natural death which has incorporated universal values recognised on a global scale (freedom, justice, equality and humanism).

Russian scientist I.K.Dmitriev not without justification notices, that interaction of the international labour norms and the principles laying in their basis, is shown that «they can operate not only within the limits of own legal system, but also in legal system of the Russian Federation» [796]. This conclusion is actual and for other member states EAES.

With reference to interaction international and national (interstate) legal systems the conventional principles and the rights are formed, as a rule, in the beginning within the limits of international law (in the form of legal customs, norms-principles in constituent instruments, declarations, develop in international treaties) and then implementirujutsja in the legislation.

According to authoritative Belarus scientist-lawyer G.A.Vasilevicha, «for international law principles the higher degree standard obobshchennosti is characteristic, that is the conventional principles are such norms of international law which are divided by the world community, possess the higher degree obobshchennosti and normativnosti, that means predetermination of the maintenance of other norms of international law by them» [797]. To a similar conclusion M.V.Lushnikova who has generalised following signs of the given principles has come also: «1) legal fastening in international legal sources; 2) a recognition the international community as a whole;

3) imperativeness (compulsion) and security international legal guarantees »[798]. Marking fruitfulness and scientific value of the above-stated generalisation, we will notice, that the given author has concentrated attention only on formal signs of these legal principles, not having mentioned the intrinsic. We will consider further the above-stated signs, and also we will allocate additional lines of the given phenomenon.

The conventional principles of international law were initially formed in the form of the international customs, then fixed in constituent instruments, declarations and some other documents of the universal international organisations (the United Nations and the SQUANDERER) [799], and further were detailed in international treaties (pacts, conventions, etc.).

According to E.A.Ershovoj, «the conventional principles of international law first of all reflect steady, settled and long time applied in pravoprimenitelnoj to practice the basic, initial legal statuses, the general basic beginnings developed and recognised as the international community of the states, a deviation from which in pravoprimenitelnoj to practice is inadmissible» [800]. In the offered understanding of the conventional principles of international law causes objection such sign, as «long time applied in pravoprimenitelnoj to practice». There is a natural question: what can be pravoprimenitelnaja practice in relation to the conventional principles, concerning the basic rights in work sphere if in system the SQUANDERER in general is not present pravoprimenitelnyh bodies, and only normotvorcheskie, control and informatsionnoanaliticheskie? Long and extensive interstate pravoprimenitelnoj experts on application of the given principles in member states EAES also it is not observed, though their priority is fixed in some constitutions.

As writes S.I.Kobzeva, «the system of the conventional principles of international law can be built by different criteria, for example, on action sphere (universal, interbranch, branch), (the states,), etc.» [801] Continuing this thought, it is possible to speak human rights to an intrinsic orientation about the conventional principles of international law in sphere of work, social security etc.

A.I.Semeshko has offered the following legal definition for inclusion in ch. 1 items 10 TK the Russian Federation: « The conventional principles and norms of international law in work sphere are the basic mandatory provisions regulating fundamental questions of labour and other relations directly connected with them, expressing the adjusted will of the international subjects, fixed in the United Nations Charter, the Charter the SQUANDERER and Declarations the SQUANDERER about basic principles and the rights in work sphere »[802]. Marking fruitfulness of attempt to formulate legal definition of investigated concept, we will specify in some its lacks. First, not clearly, that the author under fundamental questions means: not settled areas of public relations or something another. Secondly, the conventional principles and norms of international law directly do not regulate the relations labour and directly connected with them, and only express the fundamental, basic beginnings constituting basis of the international standards of work. Thirdly, the fact of a recognition of these principles (the will coordination) not simply "international subjects", and the world community is important, i.e. Overwhelming majority of the states. Under "obshchepriznannostju" norms in international law the recognition of these norms «by all states all or nearly so irrespective of their social system» [803] is understood.

The conventional principles of international law in work sphere, representing the legal base of the international law of master and servant, simultaneously urged to define a vector of development national normotvorchestva in the field of the relations labour and directly connected with them. As it was already marked, under the maintenance, and partly and under the fastening form, the given principles should be carried to ideas and norms of the natural law of master and servant though they can also "pozitivirovatsja" (to become and norms of a positive law) as a result of perception national constitutions and laws, by means of them implementatsii in national legal system, for example, by direct perception, joining to the universal international treaties developing these principles.

Compulsion for the states of the conventional principles of international law is caused by the treaty obligations not so much voluntary taken up, how many obshchepriznannostju these principles, their support from the international public, the high status and authority of the international organisations involved in their formulation, membership of the state in these organisations. Such high status and authority on the international community with reference to human rights and the international standards of work, undoubtedly, possess the United Nations and the SQUANDERER to what the quantity of member states of these universal international organisations (in the SQUANDERER testifies now also, 187 countries enter into the United Nations - 193 states).

Some general principles of international law are fixed in the United Nations Charter (item 2 item 2 - Pacta Sunt Servanda, etc.) [804]. The conventional principles of international law contain also in the General Declaration of human rights accepted and proclaimed the Resolution of General Assembly of the United Nations from 10.12.1948 № 217 A (III) according to which each person has the right of equal access to public service (item 21 item 2), the right to work, work freedom, a fair payment (item 23) are guaranteed, a number of other labour standards [805] contains. About obshchepriznannosti, prioritetnosti the norms-principles proclaimed in the given declaration many scientists-lawyers wrote:

E. M.Ametistov, And. M.Kurennoj, V.D.Zorkin, R.A.Kalamkarjan [806]. We will agree with A.I.Zybajlo's opinion and E. V.Sjargovets, that many positions of the specified Declaration really reflect today norms of usual international law [807].

As the proof obshchepriznannosti the principles of international law proclaimed in the General Declaration of human rights, that fact serves, that many of its positions in second half HH century have been transferred to organic laws of tens states and by that are recognised from the world community as international legal custom. Thus the given positions of the specified Declaration became obligatory owing to authority of the United Nations and fastening of principles of the right divided by the world community.

In Russia, unlike other member states EAES, there is a special decision of Plenum of the Supreme Court in which the questions connected with application both conventional principles and norms of international law are explained to vessels, and international legal contracts and customs. So, in item 1 of the decision of Plenum of the Supreme Court of the Russian Federation from 10.10.2003 № 5 «About application by vessels of the general jurisdiction of the conventional principles and norms of international law and international treaties of the Russian Federation» definition of the conventional principles of international law as which it is offered to understand «the basic mandatory provisions of international law accepted and recognised as the international community of the states as a whole is made, the deviation from which is inadmissible». Plenum of the Supreme Court of Russia, in particular, has carried To the conventional principles of international law «a principle of general respect of human rights and a principle of diligent performance of the international obligations» [808].

As N.L.Ljutov has truly noticed, the Supreme Court of the Russian Federation in the above-stated explanation has in essence identified the conventional principles of international law with mandatory provisions of the general international law (jus cogens) [809]. In this connection we will remind, that according to item 53 of the Convention of the United Nations about the right of international treaties of 1969 the mandatory provision of the general international law is norm which is accepted and admits the international community of the states as a whole as norm, the deviation from which is inadmissible also which can be changed only the subsequent norm of the general international law having the same character [810]; the same definition is fixed and in item 53 of the Convention of the United Nations about the right of contracts between the states and the international organisations or between the international organisations 1986 [811] (further - the Viennese conventions).

So, we will formulate signs with which norms of international law for a recognition should possess their conventional principles of international law:

1) their essence is constituted by the initial, basic legal beginnings defining a vector of development of other norms of international law and influencing national legal systems;

2) universality of action, i.e. A recognition from the world community;

3) initial fixing and (or) the subsequent acknowledgement in the concentrated kind in constitutional instruments and (or) declarations of the universal international organisations;

4) imperativeness, i.e. Compulsion as norms jus cogens owing to membership of the states in the international organisations;

5) garantirovannost their observance by means of international legal means of reaction for their non-observance.

The above-stated signs of the conventional principles of international law in refraction to work sphere should consider branch specificity (a predominating role the SQUANDERER in their formulation, distribution and the control over observance by member states; aiming at a subject domain of the law of master and servant).

The conventional principles of international law in work sphere are divided by the world community imperative basic trudopravovye the beginnings expressed in the concentrated kind in constituent instruments and (or) declarations of the universal international organisations, obligatory for observance of these organisations by all member states, guaranteed mezhdunarodnopravovymi means of reaction in case of their non-observance, developments of norms of the international law of master and servant defining a direction, influencing on national trudopravovuju to the policy, systems of the law of master and servant and the legislation.

As versions of the conventional principles of international law basic principles and the rights in sphere of work which were fixed and developed in international legal documents the SQUANDERER act. In the concentrated kind they are formulated in constituent instruments and declarations the SQUANDERER: in the Preamble to At stavu the SQUANDERER [812], in the Declaration on the purposes and problems of the International organisation of the work accepted 10.05.1944 at 26th General conference the SQUANDERER which is a component of the Charter the SQUANDERER (the appendix to it), in the Declaration the SQUANDERER about basic principles and the rights in the sphere of work accepted 18.06.1998 at 86th General conference the SQUANDERER (further - the Geneva declaration of 1998) [813], in the Declaration the SQUANDERER about social justice with a view of the fair globalisation accepted 10.06.2008 at 97th General conference the SQUANDERER [814]. We will be reserved, that the Tripartite declaration the SQUANDERER, concerning multinational corporations and social policy 1977 [815], it has been accepted on Administrative council in which representatives only some member states the SQUANDERER participate, and, hence, it does not fix the conventional principles of international law. As the given declaration was not discussed and was not accepted at General conference, it can be carried to «the soft right». Apparently, the separate positions proclaimed in declarations of the United Nations and the SQUANDERER, become in due course the conventional principles of international law, passing from categories soft law or conventional norms in the category of norms jus cogens. Taking into account the above-stated, it is difficult to agree with those authors who carry norms - principles of the Geneva declaration of 1998 The SQUANDERER about basic principles and the rights in work sphere to «the soft right» [816].

The problem of definition of the list of the conventional principles of international law (including in work sphere) is difficult and debatable, on what known Russian scientist-komparativist I.J.Kiselyov [817] paid attention.

From the comparative interpretation of a preamble of the Charter the SQUANDERER, the Filadelfijsky declaration the SQUANDERER as appendices to the Charter the SQUANDERER and the Geneva declaration of 2008 follow the following conventional principles of international law in work sphere:

1) a social justice rule (paragraph 1 of a preamble of the Charter the SQUANDERER, paragraph 1 of item of II Filadelfijsky declaration the SQUANDERER; the Geneva declaration of 2008 as a whole);

2) a principle of equal payment for equal work (paragraph 2 of a preamble of the Charter the SQUANDERER);

3) a freedom of speech and 4) freedom of association which «are a necessary condition of constant progress» (the item «» item of I Filadelfijsky declaration the SQUANDERER; paragraph 2 of a preamble of the Charter the SQUANDERER);

5) a principle of humanity (humanism) in work sphere («poverty in any place is threat for the general well-being», «struggle against need should be led with indefatigable energy», noted in the item "with" and «d» item of I Filadelfijsky declaration the SQUANDERER; paragraph 4 of a preamble of the Charter the SQUANDERER);

6) «work is free and is not the goods» (the item "and" item of I Filadelfijsky declaration the SQUANDERER).

Before acceptance of the Geneva declaration of 1998 to the fundamental laws, within the competence the SQUANDERER, experts the SQUANDERER usually carried three groups of the rights: association freedom, cancellation of forced labour and protection against discrimination in the field of work [818]. To the principles, concerning the basic rights in work sphere, the Geneva declaration of 1998 has directly carried following ideas which have developed and have added the list of the conventional principles of international law in work sphere:

1) freedom of association and an effective recognition of the right to conducting collective negotiations;

2) abolition of all forms of compulsory or obligatory work;

3) effective prohibition of child labour;

4) bar of claim by lapse of time of discrimination in the field of work and employment [819].

In the literature other set of the basic (conventional) principles of the international law of master and servant was offered. So, E.A.Ershov is specified among them by leadership of the international law of master and servant over the national legal acts regulating labour relations [820]. Earlier by us it has been shown, that of a parity international and the national law in the international law science, those constitutional norms or other states there is discrimination and concepts (so, courts of England or the USA differently, than in Belarus and Russia, approach to a question of application of norms of international law and its parity with the national legislation [821]), therefore the leadership of the first over the second cannot be the conventional principle. Reference to the conventional principles of the international law of master and servant of such ideas, as the equal rights to judicial protection and diligent performance of the international obligations as these supervising legal ideas have obshchepravovoe value as concern any branches of law, and not just the law of master and servant is disputable also. It is interesting, that in other work the same author focused attention only on four groups of the basic principles fixed in the Geneva declaration 1998 [822]

K.D.Krylov truly notices, that «acceptance of the new Russian labour legislation promotes a recognition and increase of a role of basic international legal principles» [823] in which four basic rights in the work sphere are reflected, directing and the Policy of Law of member states the SQUANDERER.

It is important to underline, that else before declaration from the party the SQUANDERER of the principles, the concerning basic rights in work sphere, the majority of them has found reflexion in seven fundamental conventions the SQUANDERER to whom on a boundary of centuries it was added also the eighth - № 182 1999 about the worst forms of child labour.

In a science international and the law of master and servant discussions concerning compulsion of the conventional principles of international law are led. The point of view that those conventional principles which are fixed in constitutional instruments of the international organisations are obligatory to application by the states only is extended enough in the literature, proceeding from the fact of membership in them or are developed in prisoners with their participation international treaties, and that are reflected in declarations - are unessential. N.L.Ljutov considers, that «proceeding from reasons of a primacy of the state sovereignty for definition of the fact of compulsion for Russia this or that rule of law or the principle which has been not ratified by the Russian Federation, presence of two conditions is necessary:) obshchepriznannosti the given norm or a principle; the consent of Russia that the given norm is conventional, including concerning Russia» [824]. In our opinion, the given approach based on necessity of two conditions of compulsion of conventional principles of international law, not to the full corresponds ch. 4 items 15 of the Constitution of Russia. The given contradiction was noticed also by E.A.Ershov, polemizing from V.A.Tolstikom and noticing, that at such approach «it is possible to draw strange enough conclusion on necessity of application only« us recognised », instead of« conventional »norms of international law» [825]. If each state for itself defines, whether it considers this or that conventional principle of international law obligatory for itself then the sense in them obshchepriznannosti is lost, obshcheobjazatelnosti and imperativeness. For example, Myanma can count not conventional for itself a principle of prohibition of compulsory or obligatory work and to continue to break the basic rights of workers. Following logic of Century And. Tolstika, for Myanma the given principle conventional by the world community, but not recognised as that the Myanma, is not obligatory to observance. We believe, that the mechanism of action of these principles a little other. Besides Russia, having specified in inclusion of the conventional principles of international law in legal system, and Belarus, recognising their priority, at the constitutional level have voluntary limited the state sovereignty in favour of this part of international law.

Besides the conventional principles of international law in work sphere the major value in business of an establishment obligatory for the states of the international labour standards and norms is played by international treaties in work sphere.

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A source: TOMASHEVSKY Cyril Leonidovich. SYSTEM of SOURCES of the LAW OF MASTER AND SERVANT of MEMBER STATES EAES: the THEORY And PRACTICE. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2017. 2017

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  2. § 2. Interference of the conventional principles and norms of international law and international «the soft right»
  3. § 1. Concept of the conventional principles and norms of international law and its value for civil law
  4. § 2. Kinds of the conventional principles and the norms of international law used at regulation of the interstate Civil relations
  5. § 3. The bases of use of the conventional principles and norms of international law at regulation of interstate civil relations
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