International Law in National Legal Systems (Ludmila Pavlova)

Раздел - "Международное право", рубрика - "К окончанию десятилетия международного права"The article explores the role and place of international law in the legal system of states on the basis of analysis of national implementation legislation. The author classifies constitutional implementation mechanisms by the following criteria: a) recognition of monist of dual approaches to the correlation of international and national law, b) applicability of international legal norms in the domestic sphere depending on their juridicial nature: agreed norms, common norms. The study of the states' constitutions content shows that fixation of norms of the international law has become an integral part of all constitutions. An absolute majority of states are monist oriented and recognize the norm of international law to have either the status equal to the norm of national law or the priority over the national law. The article underlines that the issue of the role of international law becomes particularly acute when considered in the context of law application practice in national courts. The complexity of this issue lies in the fact that the possibility of application depends on the objective and content suitability of the international agreement for the national legal administration bodies. The majority of agreements in the sphere of international public law are not suitable for direct application in national legal sphere (i. e. they cannot be selfexecuting). Direct application is extended only on the self-executing norms of international law which should meet the following requirements: 1. To have the status of norm of the law independently of its legal nature (agreed, general, resolution of international organization). 2. To be oriented in the content on the application of national law by the subjects (natural and juridicial persons). 3. To have direct force on the territory of the state without need to specify the domestic act. One should bear in mind the limited sphere of action of self-executing norms that are used in cases of lacunae in national legislation or collisions with national norm, if it is admitted by the constitution or another law. Besides, the general nature of the majority of self-executing norms of international public law allows the law enforcement bodies to use them only for the establishment of law violation. National courts also have restraining influence on application of international legal norms. The courts traditionally adhere to their legal system and are sometimes not able to reveal self-executing norms due to insufficient awareness in thesphere of international law. Therefore, the states that have an implementation mechanism which admits direct action of international legal norms give the right to the Constitutional Court or other higher judicial bodies to interpret international agreements or generally recognized norms with the aim of definition of their self-execution. The article pays special attention to the analysis of the role of international law in the legal system of the Republic of Belarus. The implementation mechanism of realization of the norms of international law was fixed in the Constitution of the Republic of Belarus of 1994 for the first time. According to the Constitution the priority of generally recognized principles of international law is recognized and provision of the corresponding legislation of the Republic of Belarus (Art. 8) is ensured. However, the legislation of the Republic of Belarus adopted in 1993—1999 gives evidence of recognition of priority not only of general norms (generally recognized principles) but also of agreed norms. The law on international agreements of the Republic of Belarus, passed in 1998, stated that ^generally recognized principles and norms of international agreements of the Republic of Belarus which came into force are part of the law which acts on the territory^. Indeed, the latter should be directly applied, except the cases when the international agreement states that the adoption of domestic act should take place for the adoption of these norms. Similar provision is fixed in new civil code of 1998. Thus, the Republic of Belarus declares not only the priority of norms of international law but also the possibility of their direct action on its territory and application in the courts' law enforcement practice. With the abovementioned statements in mind, the author makes the following conclusion on hierarchical correlation of normative acts which are part of legal system of the Republic of Belarus: 1) generally recognized principles of international law; 2) Constitution; 3) ratified international agreements; 4) laws, decrees, edicts of the President, international obligations of the Republic of Belarus stemming from the agreements not subject to ratification and general norms of international law; 5) acts of interstate formations; the Republic of Belarus is a member of sublegal normative acts adopted by the Supreme Council, the Supreme Court, the Supreme Economic Court, the General Procurator. The hierarchical system of the norms, that are part of the legal system of the Republic of Belarus, doubtless proves the decisive influence of international law on the reformation of the legal system, the international law having mostly indirect influence. This can be proved by the whole process of modern legal norms aimed at bringing the legislation into accordance with international commitments. Some laws, including the new criminal code of the Republic of Belarus of 1999 allow of the possibility of combined regulation and application. The given provision is common for the practice of the Constitutional Court, which often uses international and domestic legal criteria for the definition of the legality of the disputed normative acts. The article stresses the fact, that there are few cases of application of international law in the Constitutional Court and none in other bodies, though the implementation mechanism of the Republic of Belarus guarantees their application in national legal proceedings. It can be explained by the contradictory and imperfect nature of constitutional and other legislation of the Republic of Belarus. In accordance with the Constitution and the Law "On the judicial system and the status of judges in the Republic of Belarus" of 1995, no court in the Republic of Belarus, except the Constitutional Court, can apply the norms of international law. Thus, there is an obvious contradiction between the previous provisions of the legislation, which admit direct application of the norms of international law, and the absence of constitutional rights in the national courts for their application. The granting of the right to the Constitutional Court to control the correlation of the Constitution of the Republic of Belarus to ratified international agreements will not solve this issue because citizens have no right to appeal to the Constitutional Court in case of the violation of their rights. The powers of the Court concerning application of the norms of international law are quite controversial and incomplete: the Constitutional Court can be quided only by ratified international agreements. This excludes from the Court's law enforcement practice those international treaties of the Republic of Belarus that come into force from the date of their signing and does not correspond to Article 15 of the Law «On international agreements of the Republic of Belarus^ of 1998 that interprets the norms of all international agreements, which have already come into force and not only of those, ratified as a part of national legislation. Besides, the fixation of the principle of applicability of the international agreement by courts of the Republic of Belarus will create many problems, however significant for the Belarusian judicial system it might be. Firstly, legal consequences of the recognition of the implementation of the international treaty as a source of national law are not clear. The questions is: whether the principle of correlation of previous and following normative act is applicable(the following law repeals the previous one) in the case of an international agreement and the following law with the same object of regulation. Secondly, the possibility of application of international agreements by the courts of the Republic of Belarus becomes more complex due to Belarusian judges being professionally not prepared to apply international legal norms, especially, when it is the case of identifying self-executing agreement. Here the judges' lack of awareness about international obligations of the Republic of Belarus is quite a significant obstacle. In this situation, taking due account of successful experience of application of ratified international agreements of the Republic of Belarus, the author, believes that the Constitutional Court could assume powers for definition on selfexecution of international treaties. The author concludes, that despite all difficulties arising during direct action of international legal norms in domestic sphere, their status as sources of national law in practically all countries proves wide recognition of international law and its decisive influence on the development of national norms