Sources Lawmaking
If the social content of international law is an agreement concerted will of the subjects, then its legal content – the rule of conduct. Code of Conduct is the legal content of the concept of norm. Norma international law – a rule of conduct, which is recognized by States and other subjects of international law as a legal obligation. Thus, international law exists in the form of rules. The process of improving the system of public international law means prorulemaking process, which is based on an agreement entities are scheesya the only way to create standards. The end result of normal is the emergence of a source of international law. Source nick of international law is considered a form of expression of its rules and accordingly – a form rulemaking.
Despite differences in theoretical concepts concerning the sources of international law on this issue there is an agreement by the majority of the world. This – the ICJ Statute, article 38 of which are formulated after World War I to the Permanent Court of International Justice, says: “The court, which is to decide disputes submitted to it under international law, shall apply:
a). international conventions, both general and special, are set opment rules expressly recognized by the contesting states;
b). international custom, as evidence of a general practice accepted as law;
c). general principles of law recognized by civilized nations;
g). subject to the provisions of Article 59, judicial decisions and doctrine NAI more highly qualified publicists of the various nations, as subsidiary means for determining the legal norms. ”
Nevertheless, we must acknowledge that the sources are formulated to ease vague, so they must be more clearly classified. All sources have used international law are divided into two main groups: basic and auxiliary means of creating international legal norms.
The first group included international customary law and international treaty thief, the second are the decisions of international organizations, potential in governmental legislation, court decisions, the doctrine of scientists in the field of international law.
International convention – the prevailing international practice right WILO behavior for which the subjects WFP recognize (mostly silently justly) legally binding. Statute of the International Court of Justice (paragraphs “b”, Clause 1 38) determined the custom, as evidence of “common practice, with nyatoy as law.
In today’s WFP, there are two types of conventional norms. First, tradi civil registration is an established practice in the unwritten rule for torym to recognize the legal validity. This practice should be sufficiently precisely defined, uniform and continuous, so that from it one could deduce a general rule. However, with the development of information systems TPE the duration of the practice is losing its former importance because of the increased intensity of use of becoming the normal way of an individual manifests itself practices.
Second, a new kind of a customary norm is a norm, the creation passer not long practice, and recognition as such rules, with hold of a few or even a single act. These standards, first form ¬ gated either in contract or in the resolutions of international organizations and conferences, and in the future they are recognized as the status of rules of general interna ¬ native rights. Example, in particular, can serve as a UN General Assembly resolution or the Final Act of the CSCE. Important in determining practices in the formation of customary rules belong to the International Court of the United Nations. Acts of international organizations, are an expression of agreement concerted positions of several states not only form and record, but also interpreted and pursued the usual rules.
The set of customary rules of both species is usually called general interternational law, which is the core of all international legal system, since its effect extends to all subjects. When formation of the general law in this case plays a major role in the present protest. If no protest has arisen for a rule of conduct, then Member States in accordance with it and it goes into the category of customary international law norms. On the increasing role of general international law says that the International Court of Justice in recent years in almost all the decisions described Raeth primarily on customary law. Moreover, it gives the usual norm moms clear legal language.
The International Treaty – an agreement between the subjects WFP relative Indeed establishment, modification or termination of their mutual rights and obligations Steig. In the past, the contract belonged to an important role in forming inter native rights. Treaties are divided into general international WIDE conventions that are, or may involve all States and which contain such provisions that are mandatory for the entire world comety, ie, common law, and special contracts, which include contracts with a limited number of participants, which are mandatory polo tion of those treaties. A characteristic feature of modern international law is the increase in the number and role of multilateral treaties. Only within the UN to have been concluded more than 200.
Multilateral treaties can be a source of both common law (indirectly), and directly provide the mother cial norms of public international law. However, right from noticing researchers, even a treaty, designed for universal participation, mandatory Thelen only for his party, as opposed to custom, which does not require specialtion of the active approval (silence means consent). In at least can be considered as a source of common law bilateral treaties. They affect the general international law only as a kind of practice, with a very authoritative.
Forms of participation of international organizations in law-making process are very diverse. During the work of international organizations Origin of go the process of harmonization of wills, to ascertain the needs and the possibility of establishing an new standards, including through the conclusion of multilateral treaties. Paves the way for the beginning of rulemaking. Not rarely in its resolutions, the organization also define the principles and rules to be embodied in the Treaty.
Other international sources can not be regarded as a form of rule-making in the field of general law.
Resolutions of international organizations are classified in terms of rulemaking process for legally binding and recommendatory. Several specialized agencies have taken different names for regulatory rules that establish standards of conduct, mandatory WIDE for the States in areas falling within the purview of the international organization (the Universal Postal Union, International Telecommunication Union, World Health Organization, etc.). Regulations adopted in two main ways – by acquiescence (eg, sanitary Reglaments WHO) or explicit approval, for example, the ratification (Universal Postal Union).
Recommended resolution become part of the original rules sheets, which eventually turn into the usual common law rules, as the first emergency calls above. In addition, the declared resolutions of recommendation included in international law, transformed into a treaty rules. For example, the resolutions of the UN played a vital role in creating the complex human rights treaties, the NPT nuclear-weapon, etc. The same applies to the United Nations specialized agencies – the International Labour Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO), etc.
By international law-making as an auxiliary source involved domestic law. Suffice it to recall the fact that human rights were first formulated in the national papers, and later as one of the most valuable institutions migrated to the general international law. In this case the national law acted as a primary source. In the future, Human Rights Institute of transformed in the practice of the UN. A special role belongs to the unilateral acts of States (statements, notes, speeches, etc.) that are not a source nick of international law (do not create rules), may nevertheless give rise to legal obligations of States.
Judicial decisions as an independent source of internation rights are recognized in the English-speaking countries. However, as the auxiliarytive source of law, decisions of the International Court of Justice, are important primarily because of the above mentioned specification of conventional norms. In addition, its solutions can themselves be an initial step towards establishing common international standards, because they are formulated or clarifies the important principles governing international relations.
A special place in the international legal system belongs to the doctrines of international law. The theory has always played a significant role in the juris Prudentius. It is enough to recall that Digesty Justinian represented Lyalya a compilation of excerpts from the writings of Roman jurists. In the formation of between national labor law lawyers have great importance. It is in these works was made the very idea of his consciousness. Nevertheless, historically docktrine of international law have always suffered nationalism and only on slednee been a growing process of internationalization of international law howling theory. Of particular importance is the collective opinion of lawyers again different countries who that is expressed in the documents of organizations such as the International Law Association, established in 1873 (headquartered in London, dong), International Law Institute (established in 1873 in Brussels), etc. Nevertheless, the doctrine, according to the Russian theory of law – only the auxiliaryties of the definition of standards.
One of the most important ways to international law-making is the codification of international law. Codification – the process of systematization of existing rules, eliminating the contradictions, fill gaps, replacing outdated rules new ones.
The codification of international law by the following foundations governmental ways:
* Establishing the exact content and articulate already a long-standing (customary and treaty-legal) principles and norms of international law in any sphere of relations between states;
* Change or revision of outdated regulations;
* Development of new principles and norms in the light of actual needs Stay international relations;
* Fixing in a consistent form of all these principles and norms in a single international legal instrument (in the conventions, treaties, agreements), or in a number of acts (in the conventions, declarations, resolutions, conferences).
Codification can be formal and informal. Official codification takes the form of treaties. It began in the second half fault of the last century and was at first entirely devoted to the laws and the law of war. Important role in the codification process played two convened at the initiative of Russia Hague Peace Conference (1899 and 1907.) League of Nations. However, real achievements in this direction were obtained only with the creation of the UN that created the machinery for the codification of international law. Cent morale it takes place in the International Law Commission, composed of 34 members elected by the GA on the 5-year period. On the basis of projects CMA adopted two conventions on the law of treaties, conventions on diplomatic and consul law, the four Conventions of 1958 to the Law of the Sea, etc. Kodifika tional work involved also other UN agencies (eg, Commission on Human Rights).
The informal codification carried out by public organizations in their respective industries and legal scholars in private. An example of the first type of informal codification can serve as a training project of codification of humanitarian law of armed conflict between national Red Cross, on which were taken four JeuNeva Convention of 1949 on the Protection of War Victims, and two additional proto stake their 1977 codification of Doctrinal was first made aB Striysky lawyer A. Domin Petrushevycha in 1861, subsequently kodifika international law has been actively engaged in the above Association of International Law and International Law Institute.