The Operation of International Law in the Russian Legal System

A Changing Approach
Erscheinungsjahr 2019
ISBN: 978-90-04-39020-1
Verlag: Brill

Buch, Englisch, Band 8, 308 Seiten, Format (B × H): 162 mm x 244 mm, Gewicht: 617 g

Reihe: Brill's Asian Law Series

This book addresses the increased role and standing of international law in the Russian legal system through analysis of judicial practice since the adoption of the Russian Constitution in 1993. The issue of interaction and hierarchy between international and domestic law within the Russian Federation is studied, combining theoretical, legal and institutional elements.

Sergey Marochkin explores how methods for incorporating and implementing international law (or reasons for failing to do so) have changed over time, influenced by internal and global policy. The final sections of the book are the most illustrative, examining how 'the rule of law’ remains subordinate to ‘the rule of politics’, both at the domestic and global level.

Autoren/Hrsg.

Marochkin, Sergey Yu

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Mittel- und Osteuropa, Russland
• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht

Inhaltsverzeichnis

Acknowledgements

List of Abbreviations

Introduction

Part 1: Norms and Sources of International Law in the Legal System of the Russian Federation

1 A Fleeting Glance Back

1 Prior to the Disintegration of the USR

2 From the 1991 Coup and the Collapse of the USR to the Adoption of the New Constitution of Russia

3 The 1993 RF Constitution and International Law

2 On the Concept of National and International Legal Systems

1 The Development of the Concept in the Legal Theory

2 On the Concept of a Legal System in the International Law Theory

3 The Capacity and Role of Norms of International Law in the Legal System of the Russian Federation

1 Preliminary Remarks

2 The Nature of International Law Norms in the Domestic Jurisdiction

3 Do Supporters of ‘Transformation’ and ‘Direct Application’ Hold Opposing Views?

4 Legislation

5 Doctrinal-and-Practical Commentaries

6 Some Conclusions

4 International Law Sources and Sources of Law of the Russian Federation

1 Reflection on the Issue in the Legal Theory

2 Legislation

3 Doctrinal-and-Practical Commentaries

4 International Law Doctrine about a Place of the International Law Sources in the Legal System of Russia

5 Some Results

5 Interaction between Legal Force of International and Russian Law Norms

1 Prerequisites of the Constitutional Provision Concerning the Hierarchy of Norms of International Law and Russian Law

2 Doctrine and Commentaries

3 Generally Recognized Principles and Norms of International Law or the RF Constitution and Legislation?

4 Which International Treaties Have Priority

5 Over Which Acts Do Treaties Have Priority?

6 Basic Rules for the Interaction between the Legal Force of Norms of International and Russian Law

7 Conclusions

Part 2: Legal and Organizational Basics for Operation and Realization of International Law Norms in the Legal System of the Russian Federation

6 Legal Conditions for Operation and Realization

1 The Purpose and Meaning of Conditions

2 General Reference to International Law within Domestic Law

3 Consent to be Bound

4 Entry of a Treaty into Force

5 Publication of a Treaty

6 Obligation of a Treaty for Another Party

7 Additional Conditions

7 Types of Reference Rules and Their Impact on Operation and Realization of Norms of International Law

1 Function and Types of Reference Rules

2 Reference Rules on Limitations of Application of International Law Norms

3 Options and Schemes of Operation and Realization

8 Ensuring the Operation and Realization of International Law Norms at the Organizational Level

1 The Constitutional Bodies

2 Executive

3 Judicial Power

4 The Prosecutor General’s Office of the Russian Federation

5 Special Bodies

6 Conventional Bodies

9 Federal, Regional and Local Levels

1 Central Federal Authorities

2 Federal Agencies on the Regional Level

3 Bodies of State Power of the Subjects of the Russian Federation

4 Bodies of Local Self-Government

Part 3: Practical Aspects of the Operation and Realization of International Norms in the Legal System of the Russian Federation

10 Forms, Spheres, and Functions

1 Forms of Operation and Realization

2 Scope of Operation and Realization

3 Functions of the IL Rules in the Legal System of the Country

4 Refusal to Apply a Treaty

5 Treaties without Russian Participation

11 Self-executing and Non-self-executing Norms of IL

1 Development of the Issue in the Doctrine

2 Legislation and Its Doctrinal Commentaries

3 Reflection of the Issue in Judicial Practice

4 Attributes of Self-executing Norms, Arising from the International Treaties

12 On the Procedure (Methodology) of Applying International Treaty Norms

13 Other International Rules and Instruments in the Legal System of Russia

1 Generally Recognized Principles and Norms of IL

2 Recommendatory Acts, International Conferences Acts, Model Acts

3 Individual and Regulatory Decisions of International Bodies

4 Acts of the Bodies of Integration Institutions

5 Judgments of the European Court of Human Rights

6 Judgments of the ECtHR and the RF Constitutional Court: A Changing Indicator of the Russian Attitude Towards the Place and Role of International Obligations in the Domestic Legal System

14 The Issue under Study through the Prism of International and National Rule of Law

Conclusion

Name Index

Subject Index

Über Autor(innen)

Sergey Yu. Marochkin, SJD (1998), Ural Law Academy (Ekaterinburg), is a Law Professor at the University of Tyumen. He has published monographs, articles and contributed chapters to textbooks and edited volumes on international law including Russia and the European Court of Human Rights (CUP, 2018). His 2011 monograph, Operation and Realization of International Law Norms in the Legal System of the Russian Federation, won the 2013 F.F. Martens Prize of the Russian Academy of Sciences.