Systemic nature of international law
Under the proposed definition, international law – a collection system and the norms governing international relations (states and other subjects of these relations).
The fact that the law – national and international – is a collection system and the relevant rules of domestic law doctrine is never in doubt. Thus, considering the question of determining the right (on – essentially domestic), S.C. Alexeyev said: “In this country the legal literature are the dominant definitions, summarizing the basic characteristics of law, begin with the words” system of norms …ยป; such a determination, emphasizing the normativity of law, demonstrated its vitality. ” *
* Alekseev, SS General Theory of Law. M 1981. T. 1. S. 102.
Summing up on norms of modern international law, we note that among them are distinguished general international law and norms of the local, conventional (treaty) and customary law, general (designed for repeated use) and individual (designed specifically for use in certain cases), the rules mandatory and discretionary. The set of such standards and the content of international law.
However, the important achievement of the general theory of law and the theory of international law has recently become systemic understanding of domestic and international law stemming from the development of general systems theory. In domestic legal literature now emphasizes that international law is not only a collection but also its system of norms.
In what sense international law is understood as a system of international legal norms? Obviously, that which is attached generally valid concept of “system”.
We give an interpretation of this concept, belonging to V. Sadovsky: “Between the elements set up the system, establish certain relationships and communication. Thanks to them, a set of elements into a whole, where each element is ultimately related to all elements and its properties can not be understood without taking into account this regard. In turn, the properties of the system are not simply the sum of the individual elements of its components, as determined by the presence and specificity of connections and relationships between elements, ie constituted as an integral properties of the system as a whole. Linkages and relationships between elements of the system and they generate integrative, holistic properties of the system provide a relatively independent, separate existence, the functioning (and in some cases, and development) system. ” *
* Sadovsky VM Foundation of general systems theory. , 1974. S. 83 – 84.
This characteristic of the system is quite applicable for detection of systemic international law.
International law serves as a combination of its constituent elements – the international legal norms. Among its provisions clearly there are certain relationships and communication, without which the individual norms can not act and apply.
It is as a whole international law takes some integrative properties of the regulator of international public relations. Separately taken out of the norm of communication with all other rules of such properties, of course, does not possess.
Holistic properties of international law as a system of rules actually provide him with respect to an independent, separate existence and functioning.
There remains, however, identify the specific relationship and communication between international legal norms that bind them into a coherent, relatively autonomous legal system. Unfortunately, the issue of systemic relationships and connections between the norms of international law in the domestic theory of international law is practically not developed. Therefore, we present some considerations of the author in this regard.
It seems that the basic conditions of systemic norms of international law are:
a) The existence of general international law that govern relations between all the actors and who basically have to comply with local rules and individual;
b) the presence among the norms of general international law, its basic principles, having the character of jus cogens, ie, binding law, they should meet, as the other norms of general international law, as well as local and individual;
c) presence in the international (as well as in domestic) law directly therein contained, more often implicit rules, postulates concerning the relationship and the relationship between the rules: consistency requirements of international legal norms of peremptory norms of general international law, in particular the principles of international law; rules on the conditions of validity of norms, ie on the conditions of their entry into force of neretrospektivnosti standards, except special agreement to grant them retroactive, to change existing rules or repeal by a subsequent norm of similar content, the primacy of a special rule with respect to the norm of the total, ie establishes a general rule.
We illustrate in paragraph “in the” examples of the Vienna Convention on the Law of Treaties, 1969
Thus, Art. 53 of the Convention provides: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”
In accordance with Art. 11 State’s consent to be bound by a treaty may be expressed by signing the agreement, exchange of instruments constituting a treaty, ratification of the treaty, its acceptance, approval, accession, or by any other means if so agreed.
Treaty enters into force, according to Art. 24, in the manner and date stipulated in the contract or agreed between the negotiating countries.
On the basis of Art. 4 The Convention applies only to contracts concluded by States after its entry into force for those States.
Article 28 reads: “Unless a different intention appears from the treaty or is otherwise established, the provisions of the contract is not binding on a Contracting State in respect of any act or fact which took place prior to the date of entry into force for a specified party, or in respect of any situation which ceased to exist prior to this date. ”
On the primacy of a special rule with respect to the overall evidence, in particular, the provisions of the UN Charter concerning the functions and powers of the General Assembly. Thus, by virtue of Art. 10 The General Assembly shall have the authority to discuss any issues or matters within the scope of the Charter or relating to the powers and functions of any organs of the UN and to make recommendations, except as provided in Art. 12, ie, special norm related to matters under consideration by the Security Council.
International legal standards by the specified and other links between them form an integrated whole – the international legal system, international law and as a result can be interpreted and applied only with regard to their relationship with all others, or at least some of its other provisions.