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§ 2. Sources of civil-law norms and sources of the conventional principles and norms of international law: Parity of concepts

Sources of civil-law norms. Jurists at definition of a source of civil law use «system of co-ordinates» legal positivism and consider a source grazhdanskopravovyh norms as the external form of their expression having obligatory character.

This approach is traditional enough and originates in pre-revolutionary civil law. So, G.F.Shershenevich wrote: «it is necessary to understand expressions of the positive law which matter obligatory means of acquaintance with the law in force» As a name of the source of law. It carried a common law and the law To such sources. V.I.Sinajsky ranked the law, custom and judiciary practice as sources of civil law, noticing, that if «the civil circulation is regulated by the legal rules revealed in this or that form it is considered to be transformation forms sources of law in the true sense» [149 [150]. E.V.Vaskovsky as a whole adhered to the similar approach, naming sources of the Russian right laws and oby -

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Teas

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On legallistic positions concerning sources of law there was also a Soviet civil-law science, not covering this concept, for the clear istoriko-political reasons, legal customs. O.S.Ioffe wrote: «if will of the socialist state - a source of the Soviet civil law the state normative acts represent the form, giving to this will legally a binding force» [151]. I.B.Novitsky also equated sources of law to state regulatory legal acts, considering, that the list of sources of law should be fixed in the legislation [152 [153]. Such approach was characteristic and for the Soviet theory of law. So, S.L.Zivs under the source of law understood «the establishment and expression form dejst -

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vujushchih rules of law ».

Among modern jurists overwhelming majority also are supporters of legallistic definition of a source of civil law.

Thus, in specially-legal understanding sources of rules of law coincide with concept of sources of law.

The operating civil legislation gives the basis for construction of the following system of sources of the Russian civil law.

First, regulatory legal acts to which number taking into account the maintenance of item 3 GK the Russian Federation it is necessary to carry the Constitution of the Russian Federation, GK the Russian Federation and other federal acts accepted according to the code, and also decrees of the President of the Russian Federation, the governmental order of the Russian Federation, certificates of federal enforcement authorities. We will underline, that the civil legislation concerns exclusive conducting the Russian Federation. In this respect

There is a stable judiciary practice. So, on an argument of the participant of dispute that by laws of the subject of the Russian Federation civil relations of rent cannot be regulated, the court has specified the following: «Laws of St.-Petersburg concerning a rent are applied not as civil law sources, and as the legal acts accepted by the subject of the Russian Federation concerning management and the order being in it actually -

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sti property ».

GK the Russian Federation and federal acts are consolidated by patrimonial concept «the civil legislation», decrees and decisions are defined as «other legal acts containing norms of civil law». Thus "departmental" certificates can be published in cases and the limits provided GK, laws and «other legal acts».

They can be named in the doctrine as «other certificates containing norms of civil law».

Other certificates, including accepted by the organisations (corporate certificates), cannot be civil law sources. On one of arbitration affairs the claimant in a substantiation of the declared requirements has referred to Position about priority registration of domain names in the domain of the Russian Federation for separate categories of users and the Rule of registration of domain names in the domain which have been developed and accepted by the independent noncommercial organisation. The court has enacted: «Above-stated Position and the Rules approved ANO« the Coordination centre of the national domain of a network the Internet », on sense of item 3 of the Civil code of the Russian Federation are not sources of civil law of the Russian Federation, regulating relations in the field of the intellectual rights to results of intellectual activity and individualization means» [154 [155].

Secondly, legal custom. Change of a civil-law policy of the Russian Federation has demanded entering essential korrektivov in the civil legislation, including regarding expansion of sources of law [156 [157] [158]. As truly notices V.P.Kamyshansky, «creative process of creation of the updated Civil code of the Russian Federation began to get real contours and to pass in a practical plane». According to earlier operating re

daktsiej first part GK the Russian Federation to civil law sources the custom of a business turn concerned only. Thus, as it was correctly marked in the Concept of development of the civil legislation, the custom is widely applied not only in enterprise activity, but also in not enterprise, consumer relations. Subsequently the Russian Federations have been brought in item 5 GK respective alterations, according to which the source of law is not only custom of a business turn, but also other legal customs: «Custom the rule of behaviour not provided by the legislation irrespective of, whether it is fixed in any document» admits developed and widely applied in any area of the enterprise or other activity.

On the specified list of sources of civil-law norms unanimity of jurists comes to an end.

It is known, that the domestic theory of law starts with impossibility of a recognition of precedents and judiciary practice by sources of law in the Russian Federation, despite all value increasing them in pravoprimenitelnoj to practice. It is necessary to notice, that in civil jurisprudence there are supporters of consideration of instructions of courts of justice as istoch -

nikov civil law [159]. However the prevailing the point of view about impossibility of reference of certificates of judicial interpretation to sources of law continues to remain. E.A.Sukhanov in this occasion writes: «... From among judicial certificates it is necessary to carry to number of sources of civil law only decisions of plenums of the higher degrees of jurisdiction (in some cases as a matter of fact already being those). At the same time such reference with inevitability demands a direct legislative recognition of a validity of the given certificates, at least, along with laws, i.e. finally can lead to mixture of functions judicial and legislature, or to occurrence of one more (along with the Constitutional Court), and not provided by the Constitution, judicial review body behind law-making (that, strictly speaking, does not enter into functions of usual court)» [160].

The question on reference to number of sources of civil law of decisions of the European court under human rights is ambiguously solved. Owing to item 1 of item 46 of the Convention on protection of human rights and fundamental freedoms of the decision concerning the Russian Federation, accepted definitively, are obligatory for all public authorities of the Russian Federation, including for vessels [161].

However, having ratified the Convention on protection of human rights and fundamental freedoms and Reports to it, «the Russian Federation according to Convention article 46 recognises ipso facto and without the special agreement

Jurisdiction of the European Court under human rights obligatory concerning interpretation and application of the Convention and Reports to it in cases of prospective infringement by the Russian Federation of positions of these contractual certificates when prospective infringement took place after their introduction into action concerning the Russian Federation »[162 [163].

The given norm has found the application and in practice of national vessels at the permission of concrete civil cases. So, the arbitration court on one of affairs has directly specified that legal positions of the European court under human rights are obligatory for the Russian vessels: the fact of signing and Convention ratification means the recognition fact the Russian Federation jurisdictions of the European court under human rights and a binding character of executions of its decisions. Besides, Russia recognised, that at interpretation of the Convention the primacy belongs to Convention perusal by the European court. The legal positions developed by the European court are obligatory for Russian Federa -

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tsii

In the research literature it is underlined, that in decisions ESPCH there is a standard element - a legal position which the Convention state-participants recognise for themselves as obligatory [164]. VS the Russian Federation has noticed also, that the court along with the law («the material law applied by court to given legal relations, and rules of procedure by which the court» was guided) should be guided

Decisions of the European court under human rights if they contain interpretation of positions of the Convention on protection of human rights and fundamental freedoms which should be applied in given concrete de -

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le

It is besides, important to pay attention, that according to item 6 GK the Russian Federation at gap in law and impossibility detection to apply the legal analogy the civil relation comes under to regulation on the basis of general principles and sense of the civil legislation, and also requirements of a rationality, conscientiousness and justice. We can find sources of this norm in item 10 of the Charter of civil legal proceedings of 1864 according to which «the court is obliged to solve business on reason of existing laws, not stopping the decision under the pretext of incompleteness, an ambiguity or the contradiction in these». Characterising as a whole Judicial charters of 1864, E.N.Trubetsky paid attention, that «in them for the first time it was recommended to court not to stop the decision under the pretext of an ambiguity, incompleteness or the contradiction of existing laws, and to resolve cases unforeseen by the law on the basis of the general reason of all zakonoda - telstva» [165 [166].

Question on, whether there will be categories of conscientiousness, a rationality, justice to be sources of civil-law regulation, till now is among maloissledovannyh and debatable problems of civil law. M.N.Semjakin approves, that the specified positions of the natural death, having received on that the state sanction through the law (item 6 GK the Russian Federations), get the specific external form - the higher source of the Russian civil law, head all system of its sources. But thus the given categories do not lose the initial qualities inherent in is natural-legal ideas:

«... Corresponding principles (ideas) of the natural death, being« authorised »the law as the major sources of civil law, at the same time do not lose in this connection the initial moral morally-ethical qualities (signs) and not« merge »definitively with positive law sources. Corresponding naturally-legal principle (idea), having received« the status »« main thing »civil law source, nevertheless, as that, all the same continues to remain by the nature as the moral-ethical beginning (phenomenon), which not to identically legal form of its expression in a positive law» [167].

Earlier this thought in theory of law was stated by M.N.Marchenko: at synthesis natural and a positive law that the natural death receives the most systematised and obektivirovannyj character is incontestable. Unconditional that by means of "embodiment" in a positive law it receives more active and simultaneously more effective reguljativnyj character is represented. At last, that during fixing of principles and other elements constituting essence of the natural death, thanks to norms of a positive law the natural death gets not only separate lines, but also the form of a positive law [168] is doubtless.

In last scientific researches as sources of the Russian civil law suggest to rank the scientific doctrine, referring on positive experience in this sphere of Anglo-Saxon legal system, and also practice of the European court under human rights [169]. However, in our opinion, the Russian civil law is not ready yet to a revolutionary recognition of opinions of scientists-lawyers as official sources

The rights. But that fact, that the scientific doctrine even more often promotes judicial interpretation of rules of law, hardening positions doktrinalnoj right hermeneutics, deserves a recognition and approval. Besides, under V.P.Kamyshanskogo's fair remark, now there is an active process of integration of jurisprudence and legislative process that testifies to special function of the scientific doctrine in reforming of the civil legislation.

It is necessary to notice, that concerning a recognition of precedents and the scientific doctrine sources of law the international practice shows the big flexibility. So, in item 38 of the Statute of International court of the United Nations it is noticed, that the International court applies judgements and doctrines of the most qualified experts in the public law of the various nations as auxiliary means to definition of rules of law (my italics - JU.N.). Thus, containing in precedents and doctrines conclusions and positions do not admit international law rules of law (legal regulators), and only help to define them.

Taking into account object of the present research we do not pursue the aim to resolve a problem of concept and the exhaustive list of sources of civil law. Illumination of the separate questions connected with sources of civil-law norms, is made, first, to show only their especially interstate nature, in - the second, to show their obvious difference from sources of the conventional norms of international law.

Sources of the conventional principles and norms of international law. Certainly, the civil jurisprudence does not investigate a question on sources of the conventional principles and norms which is a subject of knowledge of a science of international law. In international legal [170]

To the literature as sources of the conventional principles and norms of international law understand international treaties and mezhdunarodnopravovye customs.

As it was already marked, in an international legal science there is an opinion and that a source of the conventional principles and norms of international law is exclusively international custom: «In the Constitution of the Russian Federation the international legal custom is fixed in following definition« the conventional principles and norms of the international character ». V.A.Kanashevsky writes, that the conventional principles and norms

International law can have the form of international legal customs: «It is thought, that the formula« the conventional principles and norms of international law »means the international customs as international law sources». Shares such position and

V.I.Andrianov who considers, that the conventional principles and norms of international law are meant as usual norms of international law. Usually-legal genesis is noticed also, that at principles of international law: they have arisen in regular constant long mutual practice of the states, and already have then received written fastening in international treaties and natsio -

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nalnyh laws.

However the conventional norms of international law find the fastening, first of all, in universal international treaties. [171 [172] [173] [174] [175]

To such international agreements containing conventional principles and concerning a regulation of civil relations, it is possible to carry: the European convention on protection of the rights and fundamental freedoms from November, 4th 1950г., the International pact about the economic, social and cultural rights from December, 16th 1966г., the International pact about the civil and political rights from December, 16th, 1966, the Convention of the Commonwealth of Independent States on the rights and fundamental freedoms of the person from May, 26th 1995г., Etc.

These international legal documents proclaim the intangible benefits which are coming under to protection by means of civil-law means, - rights to life, freedom and inviolability of person, a freedom of movement and choice of domicile, inviolability personal and home life, honour and reputation protection; and also the property blessings regulated and protected civil right, - respect and property protection, including intellectual.

In application of the conventional principles and the norms of international law fixed in international treaties, there is a problem if the state ceases to be the participant of such international treaty or yet did not become its participant. In this case the conventional principles provided in the universal international treaty and norms become «obligatory for the given state as the general international law», representing set of the conventional norms of the international law which source is the international custom: «official procedures of joining to the convention appear are not involved, but the norm works as a well-known rule of a usual origin» [176].

Thus, the same conventional principles and norms of international law can take the form as the contract, and oby -

Tea: if the contract state-participant for it these norms - contractual, and for the states which are not participating in the contract, they are obligatory as the norms having the external form of the international custom.

Sources of the conventional principles and norms of international law for any state will be either the international treaty, or the international custom. The conventional norm of international law is always either usually-legal, or contractual norm.

In this connection the Supreme Court of the Russian Federation, in our opinion, wrongly named as sources of the conventional principles and norms of international law only international treaties, not mentioning thus about oby - teas [177]. Such approach mismatches the international legal theory.

It is obviously important a question and on qualification of the international custom as source of the conventional principles and norms of international law.

Article 38 of the Statute of International court of the United Nations contains a legal definition of international legal custom - «the proof of the general practice recognised as the rule of law». Taking into account this definition for qualification of international legal custom it is necessary to establish presence of general practice of application of a corresponding rule and a recognition of this rule as the obligatory rule of law: «Pravoprimenitelnye bodies, in particular courts, should consider in each concrete case various"certificates"or recognition proofs the international community of this or that concrete principle or norm... Should investigate available proofs of presence of general practice and a recognition of this practice legally obligatory from members of the international

Communities ». V.V. Gavrilov obosnovanno notices, that« by consideration of the statement of claim based on norms of usual international law, court should be established, that corresponding rules of behaviour admit the states as the rule of law ». The United Nations International court repeatedly paid attention on

Compulsion and constancy of interstate practice as the important signs of the international legal custom: «the Party which refers to custom... Should prove, that this custom is established in such a manner that it became obligatory for other party. That norm on which the reference becomes. Is according to the constant and uniform usage practised by data of the state - mi» [178 [179] [180].

There is a natural question: how to define, whether this or that position by the states as the rule of law, as the obligatory instruction for itself is recognised?

Proofs of general interstate practice of application of a rule as usual norm can be found out in recommendations, resolutions, unilateral certificates of the states, decisions of the international and national vessels, political documents and statements, diplomatic correspondence, the international both national scientific doctrines and other external forms.

So, on sense of the Decision of the State Duma of Federal assembly of the Russian Federation from 12.02.1999 № 3649-II GD the General Declaration of human rights, the International pact about the civil and political rights, the Convention on protection of human rights and fundamental freedoms has been estimated as the certificates containing conventional principles and norms of the international

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The rights. In other document the State Duma of Federal assembly of the Russian Federation recognised restriction and prohibition of trade and economic relations, financial operations, the transport and other economic communications which participant is the Russian Federation, and also switching-off of cable and telephone communications, interruption of mail services from which the civilians suffer, as gross violation of the conventional principles and norms international gumanitarno -

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go the rights.

Under G.V.Ignatenko's fair remark, the custom becomes legally significant in the course of identical actions of the states and the desire evidently expressed by them to give to such actions standard character.

The formulation and signing of the international treaty, especially universal character, is a way long, difficult, strictly formalized. Thus the international custom though is formed long time, however a way of its occurrence more flexible, soft, less formalized, than contractual.

In this connection S.J.Marochkin pays attention that international law evolution not unreasonably communicated and contacts contractual fastening of mutual obligations of the states. The conclusion of contracts allows to provide inflexibility of execution of the reached arrangements, considerable clearness and predictability in from - [181 [182] [183]

Carrying, in strengthening of the international law and order. At the same time quite often the conclusion of contracts in a number of fundamental spheres of a life it is necessary to expect for years and even decades owing to various factors - ideological, political and others. Under such circumstances the most operative acceptance of rules of law can be actually promoted by other forms - resolutions of the international organisations and conferences, decisions of international courts, «the soft right». References of the states to the maintenance of such documents promote formation of steady practice, a forward recognition of their legal compulsion and as a consequence - to creation of usual norms international pra -

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The big role in formation of international legal customs is played by recommendatory certificates of international legal character, including the resolution of the international organisations. N.D.Taziev writes, that resolutions of the international organisations "designate" existence usually the-rule of law and promote its recognition as the obligatory rule of law [184 [185]. So, for example, the General Assembly of the United Nations had been accepted the Resolution 53/144 «the Declaration on the right and a duty of separate persons, groups and society bodies to encourage and protect the conventional human rights and fundamental freedoms», proclaimed many conventional principles and norms of international law in the field of protection of human rights and testifying to formation corresponding international usually-rules of law [186]. Many international legal usual rules have received the birth in rekomen -

Dative resolutions of the international organisations by «recognitions of these positions in quality obligatory by means of such practice of the states which generates international legal custom».

G ovorja about signs of international legal custom and possibility of its application in interstate relations, it is necessary to notice, that usually the-rule of law should recognise not only all or the majority of the states, but also taking into account action of a principle of a sovereign equality of the states directly Russian Federation. Such recognition can be expressed not only in the contractual form.

In Russian pravoprimenitelnoj to practice there is a recognition and application example the Constitutional court of the Russian Federation of the certificate of the international law having for the state recommendatory character. In the decision on April, 21st, 2001 the Constitutional court of the Russian Federation has applied the Convention on simplification of the international sea navigation from April, 9th, 1965 which though has been ratified the USSR in 1967, but

It has not been officially published neither in the USSR, nor in the Russian Federation. The given Convention has wide international application, has universal character, in it participate more than 70 states. In this connection S.E.nesmejanovoj's remark that at the decision of a question on presence or absence of the corresponding conventional norms a defining role the Constitutional court can play is fair. The constitutional court can refer in the pravoprimenitelnoj to [187 [188] practice to the norms of international law recognised obligatory for Russia. However the court, quite often referring to norms of recommendatory certificates of international law which are not ratified yet by the Russian Federation, thereby gives to these certificates obligatory si -

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Complexity is connected with qualification of usual international legal norm and that it quite often has the oral form. Obychnopravovoj the conventional principle or norm of international law frequently "follow" from the maintenance of set of various documents, statements, actions, decisions, the state and its bodies, and also from national sources of law.

Thus, for a regulation of civil relations by means of the conventional principles and the norms containing in international legal custom, it is necessary to establish general practice of its application and its recognition as the obligatory rule of law, having investigated, in particular, certificates of the international organisations and other international documents, the international, foreign, national judiciary practice and also to prove, as the Russian Federation recognises this rule obligatory for itself.

Taking into account problems of the present research the question on is important what international legal customs are capable to regulate civil relations.

The general Declaration of human rights having usually-legal form, is the international legal custom which is recognised as the Russian Federation and coming under to application including at regulation of civil relations. It is considered to be a source of its occurrence item 3 of item 1 of the Charter of the United Nations which demands at realisation of the international cooperation [189] to encourage and develop respect for human rights and fundamental freedoms [190]. The general Declaration of human rights is accepted by the Resolution of General Assembly of the United Nations, therefore it is strictly formal it has no binding character, but its positions have received for a long time a general recognition of the states, are considered by them as obligatory for itself and by right have the status of the conventional principles of international law in the field of human rights. Moreover, at the Viennese world conference on human rights of 1993 The conventional principle of universality of human rights according to which any rule of national character cannot prevail over principles of the General Declaration of human rights [191 [192] has been formulated. The positions fixed by the General Declaration of human rights, are apprehended by the majority of the states in the normotvorcheskoj activity and in sphere of human rights, and in spheres of branch regulation of public relations.

Civil-law "status" of other international legal customs having private-law character, is not defined neither in an international law science, nor in civil law.

International legal customs, including the containing conventional principles and norms, can have public or private-law character. In this connection V.A.Kanashevsky obosnovanno writes, that the international customs can be divided on interstate (have developed in practice of the states and are sources of the international public law) and commercial customs. However this researcher believes, that "concept" the conventional norms of international law »does not concern the international commercial customs. In

Case of regulation of civil matters, such forms of interstate practice can fall under the specified definition, as an interdiction of discrimination, illegal trade, detour of prohibitive norm of other state, for example, a trade interdiction, in particular,

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Cultural values, infringement of the currency legislation ».

In our opinion, there are no sufficient arguments in refusal for widely applied and recognised, including the Russian Federation, commercial customs of the status of the conventional norms of international law.

It is obvious, that the public customs containing conventional principles and norms, cannot regulate the relation between subjects of civil law. They are intended for an interaction regulation between sovereign subjects - the states and the international organisations - in public sphere. Their legal nature does not answer neither essence, nor private law principles. Legal regulators of civil relations among them basically are not present.

Thus the international commercial customs obviously regulate private-law relations. They answer all signs of the international customs: have general practice of application, admit the majority of the states as an obligatory rule, and the separate states recognise these rules obligatory for themselves, including similar norms and in interstate regulators of private-law relations. N.G.Vilkova has fairly noticed, that «in the end of XX

Centuries the basic accent has moved on working out not standard not - 194

Conventional regulation of the specified legal relations ».

The international rules of interpretation of trading terms «INKO - TERMS 2000», Principles of the international commercial contracts [193 [194]

unidrua, Universal rules and customs for the documentary letters of credit, the Unified rules of the collection contain in bolshej parts of norm of private-law character, admit and applied by the majority of the states, including the Russian Federation. The specified customs are widely and actively used and in national and international judiciary practice. It is important to consider, as these norms are offered to be applied in international law. In Principles of international commercial contracts unidrua it is directly established, that private persons can «adjust their application to purely internal contracts. However any such application can be limited by mandatory provisions of the domestic law regulating the contract» (Preamble item 3).

We brief the stated. Sources of the conventional principles and norms of international law is either the international treaty, or the international custom: for the state participating in the international treaty, these principles and norms - contractual, and for the state which are not participating in the contract, - usually-legal. The conventional norm of international law is always either usually-legal, or contractual norm. For a regulation of interstate civil relations by means of the conventional principles and the norms containing in international legal custom, it is necessary to establish general practice of its application, a recognition as the rule of law, including the Russian Federation. These signs are answered and vseobshche applied and recognised as obligatory rules of law with the majority of the states with the international commercial customs.

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A source: Nefedova Julia Jurevna. the CONVENTIONAL PRINCIPLES And NORMS of INTERNATIONAL LAW AS LEGAL REGULATORS of CIVIL RELATIONS. The dissertation on competition of a scientific degree of the master of laws. Perm - 2014. 2014

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More on topic § 2. Sources of civil-law norms and sources of the conventional principles and norms of international law: Parity of concepts:

  1. § 1. The conventional principles and norms of international law and civil-law norms as raznosistemnye the legal Regulators
  2. § 1. The conventional principles and norms of international law and the norms of the Russian right regulating civil relations: Application priorities
  3. § 1. Concept of the conventional principles and norms of international law and its value for civil law
  4. CHAPTER 2. THE CONVENTIONAL PRINCIPLES AND NORMS OF INTERNATIONAL LAW AND THE NORMS OF THE RUSSIAN RIGHT REGULATING CIVIL RELATIONS: DISTINCTION AND INTERACTION
  5. § 3. The bases of use of the conventional principles and norms of international law at regulation of interstate civil relations
  6. § 2. Kinds of the conventional principles and the norms of international law used at regulation of the interstate Civil relations
  7. CHAPTER 3. USE OF THE CONVENTIONAL PRINCIPLES AND NORMS OF INTERNATIONAL LAW AT REGULATION OF INTERSTATE CIVIL RELATIONS
  8. § 2. Concept and kinds of legal regulators of civil relations and a place of them of the conventional principles and norms of international law
  9. § 2. Interference of the conventional principles and norms of international law and international «the soft right»
  10. CHAPTER 1. TEORETIKO-METHODOLOGICAL BASES DOCTRINES ABOUT THE CONVENTIONAL PRINCIPLES AND NORMS OF INTERNATIONAL LAW AS LEGAL REGULATORS OF CIVIL RELATIONS
  11. § 2 Conventional principles of international law in sphere of work and sources of their fastening
  12. the Chapter II. The PROBLEMS CONNECTED With DEVELOPMENT of FORM OBEKTIVIROVANIJA of NORMS of INTERNATIONAL LAW, Within the limits of the DOCTRINE ABOUT INTERNATIONAL LAW SOURCES
  13. the Estimation of concepts about a parity of kinds of sources of international law