Definition of international economic law • and its subject. International economic law (MEP): concept, subject, system Law of development in international economic law
So, international economic law, as follows from the above, - only part of the international economic system; moreover, only a part of its regulatory component. Along with international economic law, the norms of the national law of states, various non-legal norms, participate in the normative regulation of international economic relations. In the era of globalization, it is important to see and understand the connection between international economic law and other normative complexes.
International economic law is a system international legal norms and principles governing international economic relations (in trade, financial, investment and some other areas). This means that international economic law does not regulate the entire range of these relations, but only that part of them that is carried out with the participation of states and international organizations, i.e. between public figures. International economic law is a branch of international law, consisting of sub-sectors and institutions.
What is included in the subject of international economic law? What issues are regulated by international economic law? We single out the following groups of relations, which are mainly the subject of international economic law:
1) the first group is bilateral and multilateral relations between public figures regarding resources (things). Term resource has more of an economic dimension. Any resource is blessing, value, bears some benefit, cost. You can replace the term resource to a more legal term - thing. States, for example, transfer, sell, give each other things; The parties have rights and obligations regarding this things. Things(or resources) enter the international public circulation, are transferred from one economy to another through public channels. Often states regulate the global market for a single good or service, when a resource moves from producer states to consumer states.
In practice, it looks like this: one state transfers a bill of exchange to another in order to settle a debt, and the parties determine everything related to the bill; a state supplies a military helicopter abroad as a gift to another state, and the parties agree on all aspects related to the helicopter; one state provides another state or an international organization with financial resources in order to participate in a joint project, and the parties agree on the legal regime of these financial resources; the state requests from an international organization a consulting service relating to certain aspects of the national economy, and the parties determine the content of this service; a group of states, through a multilateral treaty, agrees on the rules for managing the global coffee or sugar market;
2) the second group of relations that are the subject of international economic law is the relationship between public figures regarding domestic law, domestic legal regimes states. The internal legal regimes of interacting states in the economic sphere should be comfortable for individuals, mutually adequate. Things And face, originating from a partner state should feel in the host country in a proper legal regime - at least non-discriminatory. To do this, it is necessary to amend the current legislation, repeal or adopt new laws, make adjustments to the interpretation of legal acts and law enforcement practice.
In real international life, it looks like this: states enter into an agreement, according to which they undertake to remove from national legislation all barriers to each other's investments, or unify taxation relating to such investments; states agree that they will strengthen the protection of intellectual property and make the necessary changes in domestic law to this end; States undertake not to unilaterally raise customs tariff rates and not to revise customs codes in the direction of worsening the conditions for customs taxation of goods in mutual trade; states grant each other the most favored nation treatment in trade with certain exceptions to such a regime, etc.
This group of legal relations is growing rapidly. This means that domestic law and international law are becoming more and more intertwined. In such an inextricable connection between the two legal systems, the process of formation of the global legal system is manifested;
3) the third group of relations that are the subject of international economic law are relations between public persons regarding international economic law and order and the principles on which it is based. Here speech is about the international legal regime for the entire world economy - at its macro level or in its individual sectors.
"Live" examples of this kind of legal relations can be the concepts and legal positions of many states and groups of states, voiced in international organizations and formalized by international acts, in terms of restructuring international economic relations on a more equitable basis. During the global financial and economic crisis of 2008–2010. on behalf of the world community of states, ideas for reforming the international financial architecture were formulated.
It turns out that international economic law acts as a kind of "international resource law", on the one hand, and "international framework law" - on the other. As "international resource law", international economic law regulates at the international public level the cross-border circulation of things, goods - resources that have material value, cost, benefit. As an "international framework law", international economic law sets the framework for domestic legal regimes in the economic sphere for the normal interaction of individuals from different countries. At the same time, international economic law sets the framework for the global economic legal order.
There are, however, other points of view on the subject of international economic law. In some textbooks, the subject is essentially reduced to international trade, and financial, investment relations are either not noticed, or are considered only as secondary, secondary, subordinate. It is unlikely that such "trade-centrism" in modern conditions corresponds to realities.
Often seen under the subject commercial relations in a broad sense - including production, monetary and financial and other spheres of relations. The presence of a commercial element (profit making) becomes a criterion for attributing the relevant relations to the subject of international economic law. However, this criterion (commercial nature) cannot be applied to interstate relationships. Yes, at the private law level, economic relations of an international nature are, as a rule, of a commercial nature; in relations between states, the determining factor is not profit and commerce, but profit, interest, which are measured by state apparatuses, taking into account a large set of circumstances and considerations. Interstate relations are relations of an intergovernmental, not a commercial nature.
There is also a point of view that the subject of international economic law is "international property relations", relations for the protection of property rights. We can agree with this term if we mean by international property law the international legal institution of state and interstate property. It is known that Russia, for example, has a large number of real estate objects in foreign countries - land plots and buildings formalized by international legal acts and acts of domestic law.
However, a number of caveats are required here as well. Property relations of an international nature at the private law level are not the subject of international economic law and fall into the legal field of view of states only indirectly - when states agree on the development or adjustment of domestic law, domestic legal regimes (as, for example, this happens with the protection of intellectual property rights) .
Sometimes "international property law" includes other legal complexes, such as "international investment law". However, international investment law consists of a wide variety of norms, and only a part of them, to one degree or another, regulates relations of a property nature. It would be more correct to say that international property law as a complex institution is partly part of international investment law, and not vice versa.
When talking about the subject matter of international economic law, there is also the question of relations over production tangible and intangible goods (things/resources) – o production relationships. According to some ideas, relations of production are included in the subject of international economic law, according to other ideas - no. On the one hand, what and how to produce is the prerogative of producers and the jurisdiction of domestic law. On the other hand, there are more and more international treaties in which states discuss the details of the joint production of a particular product (service), the creation of industrial enterprises on the basis of common property.
This means that public figures intrude into the sphere of production; industrial relations are internationalized, which is evidence of the gradual expansion of the subject of international economic law (and changes in the functions of states). This is also evidenced, in particular, by the increasing influence of states on pricing in international economic relations.
As methods legal regulation in international economic law are used, in particular, prohibition, obligation And permissions; dispositive And imperative regulation; methods unilateral action, bilateral, multilateral, universal regulation.
In terms of goals and interests, states prefer either coordinating, or subordinate regulation methods. In certain sectors and sub-sectors of international economic law, there may be their own - special-methods regulation.
At the same time, the methods legal regulation are often used in combination with various methods non-legal regulation.
Literature: Avdokushin E.F. International economic relations. M., 1997; Boguslavsky M.M. International economic law. 1986; Buvaylik G.E. Legal regulation of international economic relations. Kyiv, 1977; Velyaminov G.M. Fundamentals of international economic law. M., 1994; Kovalev A.A. International economic law and legal regulation of international economic activity at the present stage. M., DA Ministry of Foreign Affairs of the Russian Federation, 1998; Korolev M.A. Supranationality from the point of view of international law. - MZHMP, № 2, 1997; Lisovsky V.I. Legal regulation of international economic relations. M., 1984; Lukashuk I.I. International law. Special part. M., 1997; Pozdnyakov E.A. System approach and international relations. M., 1976; Thomas W., Nash J. Foreign trade policy: the experience of reforms. The World Bank. M., 1996; Usenko E.T. Problems of the extraterritorial effect of the national law. - MZHMP, № 2, 1996; Shatrov V.P. International economic law. M., 1990; Shumilov V.M. International economic law. M., 1999; Shumilov V.M. The category of "state interest" in politics and law (system-theoretical and international legal aspects). - Law and politics, No. 3, 2000, p. 4-17; Carreau D., Flory T., Juillard P. Droit international economique. Paris, 1990; Decaux E. Droit international public. Paris, 1997.
1.1. International economic legal order
1. For centuries, international economic relations have remained one of the main forms of human communication. Warfare and the development of trade were the main external functions of the ancient states.
As a result of the international division of labor, certain types of economy were formed: cattle-breeding, agricultural, industrial. In Asia, the economy of the agrarian type was mainly formed, the ancient economy gravitated towards the industrial type, based on iron technology. It is known that in the VI century BC. Athens was the center of handicraft production in the ancient world.
Already with the slave-owning mode of production, a world market arose, which was mainly an inland market: Phoenicia, Ancient Egypt, Greece, Rome traded among themselves and with numerous city-states of the Mediterranean and the Black Sea. Fabrics, perfumes, glass, rice, and spices came from the East.
In the Middle Ages, the intracontinental market grew into an intercontinental one: China traded not only with India, but also with Arabia and South Africa; Venice and Genoa traded with Egypt.
Olive oil, wine, copper, lead, marble, ceramics, wool, handicraft products were exported from the Mediterranean. Slaves, bread, cattle, wool, and hemp were imported.
By the XIV century, commodity flows had developed in the region of Northern Europe, the Baltic Sea. From here, flax, oil, fabrics entered the international market.
Trading operations were closely intertwined with credit-usurious. Banking houses and banks grew out of money changers.
By the end of the 16th century, after the great geographical discoveries (discovery of America), trade became world. The trade turnover expanded due to new goods - tobacco, coffee, cocoa, tea, sugar, silver, gold, etc. The world economy became colonial, i.e. based on an unequal exchange of goods. Portugal, Spain, France were colonial empires. The colonies satisfied the main external strategic state interest - to provide the economy with the necessary resources.
With the industrial revolution in Europe of the 17th century, the industrialization of the Western world, factory engineering began. Antwerp and Amsterdam were considered world centers of trade and credit. Many states began to defend themselves against the import of cheap goods that compete with national goods. Thus, England imposed high duties on the import of finished products.
In the 19th century, England led the world economy, and English industry took the lead. At this time, the implementation of the policy free trade - mutual exemption from customs duties on goods imported into and exported from England.
England concluded bilateral agreements with European states on the mutual granting of the most favored nation treatment and soon took a dominant position in world industry, trade, credit relations, and maritime transport. European states have concluded bilateral treaties with each other on the mutual granting of most favored nation treatment. Russia at that time ranked fifth in the world in terms of industrial development.
The United States in the middle of the 19th century exported mainly raw materials, agricultural products and adhered to a protectionist policy, which was combined with complete freedom to import foreign capital. By the end of XIX - beginning of XX centuries. The United States has become the first industrial country in the world.
In the 20th century, human society has gone through gigantic technological shifts. Scientific and technological progress has changed the structure of industry, the nature of the entire production activity of mankind. The colonial system collapsed. The world has entered the stage of integration processes. The interpenetration of economies was expressed in the intensive cross-border movement of goods, services, investments, and labor. The industrial era began to give way to the informational, post-industrial era.
Currently, in the international division of labor there is a tendency to create a single planetary market for goods, services, and capital. The world economy is becoming a single complex.
2. The national economies of different states are thus interconnected by economic ties, which form international economic relations(IEO).
International economic relations find their practical expression in international trade, monetary, investment and other relations, i.e. in various types of travel resources.
The scale of the modern world economy and international economic relations can be illustrated by the following data. By the end of the 20th century, the total gross domestic product (GDP) in the world amounted to more than 30 trillion. dollars a year, the volume of world trade in goods - more than 10 trillion. dollars. Accumulated foreign direct investment has reached approximately 3 trillion. dollars, and annual direct investments - more than 300 billion dollars.
The share of the United States in world GDP during this period exceeded a quarter of the total indicator, the share in exports was 12%. The share of EU countries in world exports was 43%, Japan - about 10%. The main commodity flows and investment flows are concentrated within the framework of the "triad": USA-EU-Japan
Out of motion goods international trade is taking shape, i.e. paid total turnover. Paid imports and exports of one country are called foreign trade.
The system of legal regulation of interstate economic relations has developed its own "superstructure" - international economic law (IEP). The IEP is one of the branches of international law.
DEFINITION: International economic law is a system of legal norms governing relations between the subjects of international economic relations in connection with their activities in the field of international economic relations(in trade, financial, investment, labor resources areas).
In this way, object regulation in international economic law are international economic relations - multilateral and bilateral, cross-border movement of resources (in the broadest sense of "resources" - from material to intellectual).
The MEP has its own industries (sub-sectors of SE):
International trade law, which regulates the movement of goods, including trade in services and rights;
International financial law regulating financial flows, settlement, currency, credit relations;
International investment law, within which the movement of investments (capitals) is regulated;
The law of international economic assistance as a set of rules governing the movement of material and non-material resources that are not a commodity in the accepted sense;
International labor law, within which the movement of labor resources, labor force is regulated.
Some of the norms governing international economic relations are included in the international legal institutions traditionally included in other branches of international economic relations. Thus, the regime of maritime exclusive economic zones and the regime of the seabed as the "common heritage of mankind" are established by international maritime law; the mode of the market for services in the field of air transportation - international air law, etc.
3. MEO (in the broad sense of this concept) have, as you know, two levels of relations - depending on the presence public And private elements:
a) relationship public law character between MP subjects: states and international organizations. It is these relations in the field of international economic relations that are regulated by international economic law;
b) economic, civil law ( private- legal) relations between individuals and legal entities of different countries. These relationships are governed domestic law each state, private international law.
In the same time public subjects: states, international organizations - enter not only into INTERNATIONAL legal, but often CIVIL- legal relations.
Very often, especially when it comes to the development of natural resources, the regime for accepting and protecting foreign investment is determined in an agreement between the host state And private foreign investor. In agreements, the importing state, as a rule, undertakes not to take any measures to nationalize or expropriate the investor's property. Such agreements are called "diagonal", and in Western literature - "state contracts".
“Public contracts” (“diagonal agreements”) is a regulated subject domestic law; it is part of domestic law. At the same time, many Western lawyers believe that this is the area of the so-called "international contract law".
4. For international economic relations, the problem has always been relevant immunity states. How should the principle of state immunity operate if the state enters into private law relations, into "diagonal" agreements?
The international legal principle of state immunity is closely related to the concept sovereignty. Sovereignty - this is one of the signs of the state, its inalienable property, which consists in the completeness of the legislative, executive and judicial powers on its territory; in non-subordination of the state, its bodies and officials to the authorities of foreign states in the spheres of international communication.
Immunity state is that it beyond the jurisdiction of the court another state (equal over equal has no jurisdiction). Immunity is enjoyed by: the state, state bodies, state property. Distinguish immunity:
- judicial: the state cannot be brought to court of another state as a defendant, except in cases of its express consent to this;
From preliminary securing of a claim: state property cannot be subjected to coercive measures in order to secure a claim (for example, property cannot be seized, etc.);
From the enforcement of a judgment rendered: State property cannot be subjected to measures of enforcement of a judgment or arbitral award.
Western legal theory has developed the doctrine of "split immunity" ("functional immunity"). Its essence is that the state entering into civil law contract with a foreign physical/legal person to perform the functions sovereignty(construction of the embassy building, for example), has the specified immunities.
At the same time, if the state enters into such an agreement with a private person with commercial purposes, then it should be treated as a legal entity and, accordingly, should not enjoy immunities.
The legal doctrine of the USSR, the socialist countries, and many developing states proceeded from the non-recognition of the doctrine of "split immunity", bearing in mind that even in the economic turnover, the state does not renounce sovereignty and does not lose it. However, in modern conditions, in a market or transitional economy, opposition to the functional theory of immunity is largely meaningless, since economic entities are no longer “state-owned”. The legal policy and position of Russia and the CIS countries should accept (and actually adopted) the doctrine of "split immunity", which will contribute to a favorable legal investment climate, the entry of these countries into the legal field of regulation of the IER.
5. States, interacting in international economic relations, enter into legal relations, bear legal rights and obligations. Of the many legal relationship formed international economic order.
The following circumstances have a significant impact on the international economic legal order:
a) in economic relations between national economies, two trends are constantly opposing - liberalization and protectionism. Liberalization is the removal of restrictions on international economic relations. Currently, within the framework of the World Trade Organization (WTO), a multilaterally coordinated reduction of customs tariffs is being carried out with the aim of their complete elimination, as well as the elimination of non-tariff regulatory measures. Protectionism is the application of measures to protect the national economy from foreign competition, the use of tariff and non-tariff measures to protect the domestic market;
b) the legal position of a state in the system of international economic relations is influenced by the degree of influence of the state on the economy - the economic function of the state. Such impact can range from direct participation in economic activity to different levels state regulation economy.
So, in the USSR, the entire economy was state-owned. In the foreign economic sphere, there was a state monopoly on foreign economic activity: foreign economic functions were carried out through a closed system of authorized foreign trade associations. Such a market instrument for regulating imports as a customs tariff was not of decisive importance in a planned, state economy.
In countries with a market economy, the state does not interfere in the economy so totally, its intervention takes the form of state regulation. All subjects of economic activity have the right to carry out foreign economic relations. The main instrument for regulating foreign economic relations is the customs tariff (along with non-tariff measures).
The deep basis of the various approaches of the state to the management of the sphere of foreign economic activity (FEA) were radically opposite views on essence state and its role in society.
The modern world economy is based on the principles of a market economy. The international economic legal order, therefore, is designed for the interaction between market-type states. The states that were socialist in the past (about 30 states), making the transition from a planned, state, economy to a market economy, received a special status "states with economies in transition".
The balance between market mechanisms of international economic relations and state regulation of the economy is established in the contradictions between liberalization and protectionism.
6. Everything about which states enter into legal relations is subject legal relations. Subject contract legal relations of individuals in the field international economic relations can be: goods, services, finance (currencies), securities, investments, technologies, property rights (including intellectual property), other property and non-property rights, labor force, etc.
Subject interstate - public - legal relations in the field international economic relations, are usually legal modes trade, access of goods to the domestic market, market protection, principles of trade settlements, the use of tariff and non-tariff measures to regulate foreign trade, import / export, control over world prices in commodity markets, regulate trade flows, transport goods, the legal status of individuals engaged in foreign economic activity etc.
7. To address these issues, States use the following methods regulation:
Method bilateral regulation of relations: in trade agreements, agreements on trade or supply of goods, agreements on economic and scientific and technical cooperation;
Method multilateral regulation: a "package" of agreements of the WTO system, including the texts of GATT, GATS, TRIP, as well as multilateral commodity agreements and within the framework of other international organizations (OPEC, etc.) and agreements;
Method supranational regulation; elements of such regulation are used within the framework of international organizations - the WTO, the IMF, etc.;
Method diapositive regulation - with the help of dispositive norms of international law;
Method imperative regulation - with the help of imperative norms of international law.
8. The will of states is directed by state interests. It is they who set the mechanism of the state in motion. States seek to translate their interests into law and thus legalize them. Consequently, public interests are reflected in the norms international economic law
In the scientific literature and in political practice, the term "national interest" is often used as a synonym for the term "state interest".
Interests express way And ways satisfaction of needs. In other words, interest - this attitude to your needs.
The needs of a modern state today cannot be met without interstate cooperation. This means that the objective interest of almost any modern state is to participate in interstate communication, in international economic relations.
The main value, from the point of view of international economic relations, for all leading states today are resources(primarily exhaustible), allowing states to ensure the functioning of their national economies.
It is enough to bear in mind that, for example, exploitable oil reserves on earth are left on average for 30 years of consumption (including in Europe - for 15 years, in the Middle East - for 90 years).
Around the main resources, commodity flows, financial flows and commodity/investment markets, the main "struggle of interests" - public and private - unfolds.
Yes, government external long-term strategic interests, for example, the United States, other developed countries in international economic relations are to: manage the process of forming a single world economic space; control sources and cross-border flows of resources, in particular through multilateral organizations and treaties; turn their transnational corporations into a strike force for the development of the world economic space.
Under these conditions, the state external strategic interests of Russia may consist in ensuring the feasible presence of Russia in the international financial, investment, and trade systems; to help their enterprises in their development of the world economic space, to protect their private interests.
From the point of view of the carriers of a particular interest, there are:
State interests (of one state);
Group interests (several states, including states of the same civilizational type);
The interests of the international community as a whole (universal).
Accordingly interests state can be subdivided into:
Interests of internal development (internal);
The interests of the state as a subject of international relations (external).
From point of view subject, State interests are rather conventionally divided into: economic, political, territorial, legal, intellectual (spiritual, sociocultural) etc.
Interests can be distinguished tactical And strategic; long-term, medium-term and short-term; reflected in the law and not enshrined in it.
In international economic relations, interests are legalized and implemented through international economic law.
9. Throughout the 20th century, states ensured their interests force - usually military-political. The international law of the 20th century rested on the "balance strength" between leading states.
In modern international economic relations, state interests are ensured by economic force. States unite in integration groupings, which serve as a tool for securing their interests in law.
This means that power has not left international law, but only changes its form - the world order is increasingly dependent on economic power.
It should be borne in mind, however, that for many countries public interest on a number of issues increasingly coincides with public interest. Environmental, informational problems also give rise to universal interests.
In addition, international law enshrined the institution common heritage of mankind. The common heritage is the resources of the seabed, celestial bodies, including the Moon. It is possible that Antarctica will also be recognized as the common heritage of mankind. These are the collective resources of human society.
Realization of universal interests requires special methods of regulation. Obviously, the most appropriate method for solving such issues is the method of supranational regulation, the beginnings of which are already present in the system of legal regulation of international economic relations.
Human interests, along with state interests, also (and to an increasing extent) must penetrate into international economic law and be fixed in it.
10. The main problem for the modern economic legal order is the use by states of economic force, economic impact measures based on an independent assessment of legal facts.
Such measures of economic influence and coercion can be applied:
1. as a countermeasure in the event of an offense;
2. as an offense.
It is important to separate some cases of application of measures of economic coercion from others, to correctly qualify the available legal facts.
According to the UN Charter (Article 2), the threat or use of force is prohibited. However, by "strength" I mean armed strength. The question of the use of economic force remains unresolved.
IN political sphere (in the UN system) there is a body - the UN Security Council - which is called upon to determine the existence of the use of force and make decisions on countermeasures, and in relation to economic no such mechanism exists.
Of course, the UN Security Council has repeatedly resorted to economic sanctions (Southern Rhodesia, South Africa, Iraq, Yugoslavia, Libya, Nicaragua, Dominican Republic, etc.), but each time it was about the application of sanctions in the form of economic sanctions for violations of the UN Charter in the political sphere.
Often, the economic "countermeasures" that states take as measures of responsibility are the misuse or disproportionate use of economic force. In practice, such application of economic measures of influence can be considered as a violation of the principle of non-intervention in the internal affairs of the state.
As measures of influence are used: the cessation of food aid supplies, the cessation of lending, the curtailment of economic cooperation programs, the denunciation of agreements of an economic nature, etc.
Sometimes the use of economic measures of influence and coercion can develop into economic aggression or be comparable in its result to armed actions.
Therefore, in the system of international economic relations, the issue of creating a system of international economic security is still relevant. It is proposed, for example, along with the already existing UN Security Council, to create the UN Economic Security Council.
11. Legally, the ban on the use of economic force in the MEP stems from a number of international acts: UN General Assembly resolution 2131/XX 1965 on the inadmissibility of interference in the internal affairs of states and the protection of their independence and sovereignty; Declaration on Principles of International Law, 1970; UNGA resolution 3171/XXVIII on permanent sovereignty over natural resources, 1973; Charter of Economic Rights and Duties of States, 1974; UNGA resolution 37/249 on protecting economic relations from the negative consequences of political tensions; resolution UNCTAD-VI 152/VI of 1983 condemning the use of coercive economic measures in the MEA as contrary to the UN Charter and generally accepted norms of the IL; UNGA resolution of 20.12. 83 "Economic measures as a means of political and economic coercion against developing countries", etc.
In 1931 and 1933 The USSR made proposals to the UN to adopt a protocol on economic non-aggression. The main provisions of this protocol were later included in the Soviet draft definition of aggression, although UN General Assembly resolution 3314/XXIX of 1974 limited itself to the definition of armed aggression only.
When defining the concept of "aggression" in the UNCLOS by the USSR, it was proposed to include in the definition measures of economic pressure that violate the sovereignty of another state, its economic independence and threaten the foundations of life of this state, preventing the exploitation of natural resources, the nationalization of these resources, as well as economic blockade.
At the 40th session of the UN General Assembly in 1985, at the initiative of the USSR, the resolution "International economic security" was adopted, and in January 1986 the Government of the USSR adopted the Memorandum "International economic security is an important condition for the improvement of international economic relations." In the same years, a Soviet draft definition of economic aggression was presented to the UN.
12. The idea of reforming and restructuring international economic relations has also been expressed in the concept of the "new international economic order" (NIEO) put forward by developing countries.
At the VI special session of the UN General Assembly in 1974, the Declaration on the Establishment of a New International Economic Order and the Program of Action on the Establishment of a New International Economic Order were adopted.
In 1979, the UN General Assembly adopted a resolution "Unification and progressive development of the principles and norms of international law relating to the legal aspects of the new international economic order."
To a large extent, interstate economic relations are built taking into account these documents (for example, between the EU and developing countries within the framework of the Lomé conventions).
Thus, in the modern international legal order, states face a twofold task:
1 . to ensure by legal means the maintenance and development of the system of international economic relations, the stability of the rule of law, the balance of the economic space;
2 . ensure the lawful application of coercive measures of an economic nature within the framework of the institution of international responsibility.
13. It is necessary to dwell separately on the method supranational regulation in international economic relations. The phenomenon of supranationality takes place in some international organizations, when they get the opportunity to oblige states with their specific actions (decisions), without enlisting their consent to this in each individual case, i.e. acquire a certain amount of independent administrative powers in relation to them.
For example, the “supranational” nature of the EU legal order is seen in the right of its bodies to issue binding acts of direct application for member states and their citizens, which have priority over domestic law, and to make decisions by majority vote. At the same time, the functionaries of the EU bodies act in their personal capacity, and are not in the service of the respective state.
A sign of “supranationality” may be, in particular, that:
1 . the internal law of a supranational association becomes the internal law of its members;
2 . the internal law of a supranational association is created by a body that acts legally beyond the control of the member states and makes decisions binding on the states, regardless of the negative attitude towards them from one or more states; at the same time, the relevant issues are completely or partially withdrawn from their jurisdiction;
3 . international officials participating in the bodies of supranational associations act in their personal capacity, and not as representatives of states;
4 . decisions are made by the bodies of supranational associations by a majority of votes, by proportional (weighted) voting and without the direct participation of the countries concerned.
Elements of "supranationality" seem to be embedded in the doctrine of norms jus cogens, in the concept of the seabed as the “common heritage of mankind”, in international justice, in the currently put forward concepts of the “single world currency”, “World Central Bank”, etc.
It is obvious that the method of supranational regulation is already actively used today to manage integration processes, for example, within the framework of the European Union.
14. If we summarize the most characteristic features and trends of the contemporary international economic legal order, the overall picture may look as follows.
First. In the system of legal regulation of international economic relations, the shift of emphasis from the method of bilateral regulation to the method of multilateral regulation has actually been completed. The WTO and other multilateral economic organizations have become the main instruments of legal regulation of the international trade, financial and investment systems.
Second. A large number of issues of the internal competence of states are gradually moving into the international legal sphere of regulation, which means the expansion of the object sphere of international law. This is especially evident in the activities of the WTO, in the sphere of regulation of which the issues of the application of tariff and non-tariff barriers, intellectual property, investment measures, environmental standards, etc. are moving.
Third. In international economic relations, a differentiation of states has de facto developed depending on the level of economic development and on the degree of “market character” of the economy of a particular state. The entire legal system of the WTO, in fact, is designed for states with a market economy, which should mean the legalization of certain discrimination against countries with a non-market economy. Based on the differentiation of states on these grounds, major clashes of state interests are still possible.
Fourth. Both within the WTO and outside the WTO system, there are differentiated legal regimes in different sectors of international economic relations. For example, in the WTO system, a world free trade area for aircraft was actually formed on the basis of the Aircraft Trade Agreement, and outside the WTO system there is a group of so-called international commodity agreements.
Fifth. There has been and is a strengthening of the international legal regime of the IER. Throughout the life of GATT-47, member states were required to ensure that GATT rules were as compatible as possible with domestic law; thus the starting principle was the principle of the priority of domestic law. In the WTO system (in GATT-94), the member states are obliged to bring their internal law in line with the international legal regime in force in the WTO system. Thus, the starting principle is the principle of priority of international legal norms.
Sixth. A large place in the legal regulation of the international economic relations is occupied by the norms of the so-called "soft law", international customary norms, customs, norms of the "grey zone" (semi-legal norms to be eliminated within the time limits stipulated, in particular, in the WTO "package" agreements). All this, on the one hand, gives the necessary flexibility to the existing legal order, on the other hand, weakens the effectiveness of law as a system.
Seventh. In the WTO / GATT system and through international treaties / customs, there was a legalization of preferences granted to each other by states within the framework of economic integration. Integration associations are becoming "locomotives" of economic power in the macro level, while large transnational enterprises (TNCs) have long been the engines of economic power in micro-level. With their help, the existing multilateral balance of state and group interests is being broken and restructured.
Eighth. In international economic relations, the phenomenon of “supranationality” is noticeably manifested. The supranational function of law in the context of the formation of a single world economy is an objective stage in the development of systems of legal regulation. We are talking about the transition from the method of multilateral regulation to the method of supranational regulation. Many supranational elements are inherent in the activities and competencies of the WTO.
Ninth. The main problem in the International Economic Relations is the dominance of the economic power of developed states, this is the indiscriminate application of economic sanctions by states based on their own qualification of legal facts. The beginnings of a solution to this problem are in the WTO in the form of established dispute settlement procedures. However, this is clearly not enough yet.
Tenth. The formation of a single world economic space is taking place against the background of the struggle of state strategic interests of individual states and groups of states. This is the main modern contradiction - between the international division of labor and the state form of existence of modern societies, between the base and the superstructure.
It is natural that all the noted processes and phenomena in the international economic relations are to some extent reflected in international law, rely on it or require their registration in it.
15. It is necessary to distinguish the concept international economic law how industries rights and how academic discipline.
There is a point of view according to which international business relationship, and internal economic relations are regulated by a single system of the so-called international economic law, "world economic law" ( V.M. Koretsky, G. Erler), constructed in this way on the weave public And private elements.
In Russian legal theory, the concept of economic law was first put forward in the late 1920s. XX century V.M. Koretsky
In 1946, I.S. Peretersky proposed the idea of "international public civil law", or "international property law", the subject of which is the economic relations of subjects of international law. This idea underlies the concept of the IEP as a branch of international public the rights.
International economic law is a kind of “resource law” that regulates the cross-border movement of various kinds of resources. From this point of view, for example, such a sphere (often singled out as a separate branch of international law), such as “the law of scientific and technical cooperation”, “international technological law” - in its subject matter falls into the cross-border movement of goods, services, financial resources, economic assistance , labor resources. This means that "international technological law" as a branch of international law does not exist, and all these issues are part of the subject of the IEP.
In some textbooks of international law, the structure of international economic law includes: international customs law, international tax law, international transport law, etc.
It seems that both customs law and tax law are, rather, sub-sectors of a new branch of IL that is currently being formed - international administrative law.
At the same time, it should be borne in mind that the most actively developing sector of international economic relations is the sector of trade in services, including transport, insurance, tourism, and banking. In this sense, taking into account the totality of norms regulating certain issues in these sectors of economic activity, today we can already talk about the relevant sectoral or intersectoral international legal institutes, including the institute of "international transport law".
International economic law how academic discipline already at the present time, for practical reasons, it can be built on the principle of a comprehensive course covering the public law and private law aspects of the regulation of international economic relations.
It is also quite justified to expect the appearance on the basis of individual branches and / or institutions of the Ministry of Energy (or on the basis of intersectoral institutes) of independent training courses with a different ratio of public law and private law elements - such as, for example, "international trade law", "international banking law”, “international insurance law”, “international copyright”, etc. All these courses should be perceived as specialized (author's) academic disciplines.
MEP as a science and as an academic discipline began to take shape in Russia on the basis of previous scientific, theoretical baggage in the 80s. XX century. A great contribution to this was made by well-known jurists: A.B. Altshuler, B.M. Ashavsky, M.M. Boguslavsky, V.D. Bordunov, G.E. Buvaylik, G.M. Velyaminov, S.A. Voitovich, A.A. Kovalev, V.I. Kuznetsov, V.I. Lisovsky, M.V. Pochkaeva, B.N. Topornin, G.I. Tunkin, E.T. Usenko, N.A. Ushakov, D.I. Feldman, L.A. Fituni, I.S. Shaban, I.V. Shapovalov, V.P. Shatrov and many others.
Among the foreign lawyers who, to one degree or another, developed the issues of legal regulation of the IER, it is necessary to note the following lawyers: J. Brownlie, P. Weil, D. Vpnyes, M. Viralli, F. Jessep, E. Langen, V. Levy, A. Pelle, P. Picone, Peter Verloren van Themaat, P. Reiter, E. Sauvignon, T.S. Sorensen, E. Ustor, V. Fikent-scher, P. Fischer, M. Flory, V. Friedman, G. Schwarzenberger, G. Erler and many others.
The concept and subjects of international economic law. International economic law is a branch of international law, the principles and norms of which regulate interstate economic relations.
Modern international economic relations are a highly developed complex system that combines heterogeneous in content (object) and subjects, but closely interacting types of social relations. The unprecedented growth in the importance of international economic relations for each country is due to objective reasons. The trend towards the internationalization of public life has reached a global scale, covering all countries and all major spheres of society, including economic.
An essential specific feature of international economic relations is the unification into a single system of relations that are different in subjective structure, causing the use of various methods and means of legal regulation. There are two levels of relations: first, relations between states and other subjects of international law (in particular, between states and international organizations) of a universal, regional, local nature; secondly, relations between individuals and legal entities of different states (this includes the so-called diagonal relations - between the state and individuals or legal entities belonging to a foreign state).
International economic law regulates only relations of the first level - interstate economic relations. States establish the legal basis for the implementation of international economic relations, their general regime. The bulk of international economic relations is carried out at the second level: by individuals and legal entities, so the regulation of these relations is of paramount importance. They are governed by the national law of each state. A special role belongs to such a branch of national law as private international law. At the same time, the norms of international economic law play an ever-increasing role in regulating the activities of individuals and legal entities, but not directly, but indirectly through the state. The state influences the norms of international economic law on private law relations through a mechanism enshrined in national law (for example, in Russia it is paragraph 4 of article 15 of the Constitution of the Russian Federation, article 7 of the Civil Code of the Russian Federation and similar norms in other legislative acts).
The foregoing testifies to the deep interaction of the two systems of law (international and national) in the regulation of international economic relations. This gave rise to the concept of international economic law, which combines international legal and national legal norms governing international economic relations, and a broader concept of transnational law, which includes all norms governing relations that go beyond the borders of the state, into a single system of law.
Sources and principles of international economic law. Sources of international economic law: international treaties: multilateral (UN Charter; Charter of Economic Rights and Duties of States, 1974; Human Rights Covenants, 1966; Declaration on the Establishment of a New International Economic Order, 1974); bilateral (trade, credit, payment relations, on the provision of technical assistance, etc.; on trade, on merchant shipping, on scientific and technical cooperation, etc.) international customs and habits.
Principles of international economic law: inalienable sovereignty of the state over its natural resources; freedom of choice of forms of organization of foreign economic relations; economic non-discrimination; economic cooperation; most favored national treatment; reciprocity.
International economic law as a whole reflects the laws of a market economy. However, this does not mean limiting the sovereign rights of the state and reducing its role in the economic sphere. On the contrary, there is a complication of the tasks of managing economic processes, which leads to an increase in the role of the state and, consequently, to an increase in the possibilities of international economic law in the development of both the national economy and the world economy as a whole.
Resolution of international economic disputes. The growing importance and complexity of international economic relations make it necessary to strengthen their management by the joint efforts of states through international organizations, which leads to an increase in the number of international organizations and their role in the development of economic interstate cooperation. As a result, international organizations are important subjects of international economic law. The fundamental basis of international economic organizations is the same as that of other international organizations. But there are also some specifics. In this area, states tend to give organizations more regulatory functions. Resolutions of economic organizations play an important role, supplementing legal norms, adapting them to changing conditions, and where they are missing, and replacing them. In some organizations, there are rather rigid mechanisms for the implementation of decisions made.
The specificity of the resolution of international economic disputes is associated with the heterogeneity of international economic relations. Economic disputes between states are resolved on the basis of international law, like other interstate disputes. But since international economic cooperation is carried out mainly in the relationship between individuals of different states, the resolution of disputes between them is of great importance for the stability and efficiency of the international economic system.
Disputes between individuals and legal entities of different countries are subject to national jurisdiction. They can be considered by the courts (general jurisdiction or arbitration) of states or by international commercial arbitration (ICA). Participants in international economic relations prefer the ICA.
1. Introduction
Understanding the essence and significance of international law is necessary today for a fairly wide range of people, since international law has an impact on almost all spheres of modern life. The application of international law is an important aspect of the activities of all those who are in one way or another connected with international relations. However, even those lawyers who are not directly involved in international relations periodically encounter normative acts of international law in the course of their activities and must be guided correctly when making decisions on such cases. This also applies to investigators in the investigation of economic crimes of international corporations, firms engaged in foreign economic activity or operational units engaged in the fight against terrorism and international crime, and to notaries certifying legal actions relating to foreign citizens located on the territory of Ukraine, etc. d.
The end of the second millennium of the modern era in the history of mankind coincides with the beginning of a new stage in the development of international law. Arguments about the usefulness of international law or doubts about its necessity are replaced by the universal recognition of this legal system as an objective reality that exists and develops independently of the subjective will of people.
The UN General Assembly adopted in 1989 resolution 44/23 "United Nations Decade of International Law". It notes the UN's contribution to promoting "wider acceptance and respect for the principles of international law" and to encouraging "the progressive development of international law and its codification." It is recognized that at this stage it is necessary to strengthen the rule of law in international relations, which requires the promotion of its teaching, study, dissemination and wider recognition. The period of 1990-1999 was proclaimed by the UN as the Decade of International Law, during which there should be a further increase in the role of international legal regulation in international relations.
The topic proposed below - "international economic law" - is interesting in that it allows you to clearly understand and trace the principles of economic cooperation between peoples with different customs, traditions, religions, government, etc.
2. Definition of terms
AGGRESSION - (Latin aggressio, from aggredior - I attack) - in modern international law, any illegal use of force by one power against the territorial integrity or political independence of another power or people (nation) from the point of view of the UN Council.
ANNEXATION (lat. annexio) - forcible annexation, seizure by one state of the entire (or part) of the territory of another state or
OCCUPATION (lat. occupatio, from occupo - I capture, I take possession) -
1) temporary occupation by the armed forces of one state of part or all of the territory of another state, mainly as a result of offensive military operations; 2) in ancient Rome, the possession of things that do not have an owner, including land.
DELIMITATION - the process of determining land and water boundaries by agreement, as a rule, by neighboring states.
DEMARCATION (French demarcation-demarcation) - designation of the state border line on the ground.
OPTION (lat. optatio - desire, choice, from opto - choose) - voluntary choice of citizenship by a person who has reached the age of majority. The right of option is necessarily granted to the population of a territory that passes from one state to another.
3. The concept and subjects of international economic law.
3. 1 International legal regulation of economic, primarily trade, relations between states arose in ancient times. Trade relations have long been one of the subjects of international treaties, and initially the freedom of trade relations was recognized as a moral and legal principle. As early as the 2nd century A.D. e. the ancient Roman historian Flor noted: "If trade relations are interrupted, the union of the human race is broken." Hugo Grotius (XVII century) pointed out that "no one has the right to interfere with the mutual trade relations of any people with any other people." It is this principle of jus commercii - the right to free trade (trade is understood in a broad sense) - that becomes fundamental to international economic law.
In the 17th century, the first special international trade agreements appeared. By the twentieth century, some special principles, institutions and international legal doctrines had developed related to the regulation of economic relations between states: "equal opportunities", "capitulations", "open doors", "consular jurisdiction", "acquired rights", "most favored nation" ", "national regime", "non-discrimination", etc. They reflect the contradictions between the interests of free trade and the desire to monopolize foreign markets or to protect their own market.
The emergence of new forms of international economic and scientific and technical cooperation in the nineteenth and twentieth centuries gave rise to new types of contracts (agreements on trade and payments, clearing, transport, communications, industrial property, etc.), as well as the creation of numerous international economic and scientific and technical organizations. This process developed especially rapidly after the end of the Second World War. In the UN Charter, as one of the goals, the implementation of international cooperation in solving international problems of an economic nature is indicated (Article 1).
In the second half of the 20th century, special economic integration international organizations emerged in Europe - the European Communities and the Council for Mutual Economic Assistance. In 1947, the first multilateral trade agreement in history was concluded - the General Agreement on Tariffs and Trade (GATT), on the basis of which a special kind of international institution was formed, which now unites more than a hundred states.
3.2 International economic law can be defined as a branch of international public law, which is a set of principles and norms governing economic relations between states and other subjects of international law.
The subject of the IEP is international economic multilateral and bilateral relations between states, as well as other subjects of public international law. Economic relations include trade, commercial relations, as well as relations in the areas of production, scientific and technical, monetary and financial, transport, communications, energy, intellectual property, tourism, etc.
In the modern legal literature of Western countries, two main concepts of the MEP have been put forward. According to one of them, the MEP is a branch of public international law and its subject is the economic relations of subjects of international law (G. Schwarzenberger and J. Brownlee - Great Britain: P. Verlorenvan Temaat - The Netherlands: V. Levy - USA: P. Weil - France: P. Picone - Italy, etc.). The concept that the source of the norms of the MEP is both international law and domestic law can be considered the dominant one in Western literature at present, and the MEP extends its effect to all subjects of law participating in commercial relations that go beyond the borders of one state (A. Levenfeld - USA: P. Fischer, G. Erler, V. Fikentscher - Germany: V. Friedman, E. Petersman - Great Britain: P. Reuter - France, etc.). This second concept is also connected with the theories of transnational law put forward in the West, aimed at equalizing the states and the so-called transnational corporations (V. Fridman and others) as subjects of international law.
In the legal literature of developing countries, the concept of "international development law" has become widespread, which emphasizes the special development rights of the poorest countries.
In domestic science, V. M. Koretsky back in 1928 put forward the theory of international economic law as an intersectoral law, including the regulation of international legal (public) and civil law relations. IS Peretersky, on the other hand, came up in 1946 with the idea of international property law as a branch of public international law. Further developments of many domestic scientists went along the path of development of this idea.
The USSR made a significant contribution to the development and approval of many normative acts that underlie the modern concept of the MEP. The USSR was also one of the initiators of the convening in 1964 in Geneva of the UN Conference on Trade and Development, which grew into an international organization (UNCTAD).
3. 3 Based on the understanding of the MEP as a branch of public international law, it is logical to assume that the subjects of the MEP are the same as the subjects in general in international law. States, of course, have the right to directly participate in foreign economic civil law, commercial, commercial activities. A "trading state", while remaining a subject of international law, can also act as a subject of the national law of another state, for example, by concluding a deal with a foreign counterparty subject to its foreign jurisdiction. This, however, does not in itself deprive the State of its inherent immunities. To waive immunities (including jurisdictional, judicial-executive) the express will of the state itself is required.
4. Sources of international economic law
4. 1. The sources of the MEP are the same as in general in public international law. A characteristic for the MEP, which is still in its infancy as a special branch of law, is the abundance of recommendatory norms, which have as their source the decisions of international organizations and conferences. The peculiarity of such norms is that they are not imperative. They not only "recommend", but also communicate legitimacy, in particular, to such actions (inaction) that would be illegal in the absence of a recommendatory norm. For example, the 1964 UN Conference on Trade and Development adopted the well-known Geneva Principles, which, in particular, contained a recommendation to provide developing countries with exemption from the most favored nation principle of preferential customs benefits (customs tariff discounts). Such benefits would be unlawful in the absence of an appropriate recommendatory norm.
The complex of international economic relations is the subject of international economic law. These relations are very diverse, since they include not only trade relations, but also production relations, monetary, scientific and technical, in the field of the use of intellectual property, affecting the service sector (transport, tourism, telecommunications). The criterion that makes it possible to delimit the scope of application of the norms of various branches of international law to this significant part of international relations is the commercialization of these relations. That is, the application of the element of trade (in the broad sense) to the objects of these relations.
International economic law can be defined as a branch of international public law, which is a set of principles and norms governing relations between states and other subjects of international law in the field of international economic relations in order to harmonize and mutually benefit their development.
International economic law is a relatively young branch of international law, which can be said to be still in its infancy.
The significance of the norms of this industry lies in the fact that they communicate order to economic relations, contributing to their further development and, ultimately, the establishment of a single international economic order.
The decisions of international organizations cover a very wide range of issues related to the regulation of international economic relations. Of particular importance for the creation of a new international economic order are the resolutions of the UN General Assembly, the acts of the UN Conference on Trade and Development (UNCTAD), and other UN specialized agencies. Among the fundamental sources of international economic law are documents such as the Principles of International Trade Relations and Trade Policy Conducive to Development, adopted by UNCTAD in 1964, the Declaration on the Establishment of a New International Economic Order and the Program of Action for the Establishment of a New International Economic Order, adopted at VI special session of the UN General Assembly in 1974, the Charter of Economic Rights and Duties of States, adopted at the 29th session of the UN General Assembly in 1974, General Assembly resolutions "On confidence-building measures in international economic relations" (1984) and "On international economic security” (1985).
The 1974 Charter is one of the clearest examples of the documents that form modern international economic law. The provisions of the Charter, on the one hand, contain generally recognized principles of international law (such as the principle of the sovereign equality of states or the principle of cooperation) as applied to economic relations; on the other hand, the Charter articulates many new principles to ensure that the special interests of developing and least developed countries are taken into account and that favorable conditions are created for their development, economic growth and bridging the economic gap between them and developed countries.
Although the Charter was adopted as a resolution of the General Assembly and has no binding force, it can nevertheless be noted that the provisions contained in it have an impact on international economic relations and on the subsequent rule-making process in this area.
Trade relations form the basis of international economic relations, since all other relations (credit and financial, currency, insurance) are somehow connected with them and serve them. Like any other, international trade relations need legal regulation in order to ensure the protection of mutual interests in trade, put the development of international cooperation on a legal basis and increase its effectiveness.
international trade law- it is a set of principles and norms governing relations between states and other subjects of international law related to the implementation of international trade.
There are various kinds of trade and economic associations of states:
- free trade zones (associations), which establish a more favorable regime for trade in all or certain types of goods between the participating countries (by removing customs and other restrictions). At the same time, the trade policy and terms of trade of these countries with third countries remain unchanged. Examples include the North American Free Trade Area (NAFTA) and the European Free Trade Association (EFTA); free economic zones in Kaliningrad, Chita and other regions;
- customs unions, meaning the introduction of a single tariff and the implementation of a common trade policy of the countries participating in such unions;
- economic unions as a way of integrating the economies of the participating countries and building a common market for goods, services, capital and labor;
- preferential systems, which provide special benefits and privileges (customs, for example) for a certain range of countries, usually developing and least developed (global system of trade preferences (GSTP), developed for developing countries).
Sources of international trade law. As sources of international trade law should be considered primarily bilateral and multilateral international treaties. They can be conditionally divided into:
International trade agreements that establish general conditions for cooperation between states in the field of foreign trade;
Intergovernmental trade agreements concluded on the basis of trade agreements and containing specific obligations of the parties in relation to trade between them;
Commodity supply agreements (commodity agreements) as a type of trade agreements that provide for a specific list of mutually supplyable goods;
Agreements on trade and payments (among other things, they contain the main conditions and the procedure for paying for the delivered goods);
Clearing agreements providing for the settlement procedure for mutual deliveries by offsetting amounts for exports and imports;
And finally, trade conventions that define relations between states on special issues in the field of trade (for example, customs conventions).
Other sources of international trade law include:
International trade usages, that is, international practices repeated over a long period in international trade relations;
Judicial precedents of international courts and arbitrations;
Decisions and resolutions of international organizations adopted within their competence, if they do not contradict the principles of international law.
The UN Commission on International Trade Law (UNCITRAL) deals with the issues of systematization and codification of international legal norms in the field of international trade.
The system of international trade law. With the globalization of the world economy and the rapid development of cross-border trade, states increasingly began to feel the inadequacy or at least the insufficient effectiveness of their national means of regulating trade relations. Based on this, the states came to the need to create a global integration agreement. To this end, in 1947, a multilateral General Agreement on Tariffs and Trade (GA7T), supplementing the post-war "international economic constitution" based on the Bretton Woods agreements of 1944, which, however, remained unfinished due to the non-ratification of the Havana Charter of the International Trade Organization of 1948. The initial number of participants in the Agreement was 23, and by April 1994 it increased to 132. The development of the GATT eventually led to the formation of a de facto international organization of the same name with a permanent Secretariat. The progressive transformation of GATT from a temporary short-term treaty on reciprocal tariff liberalization into a comprehensive long-term system of more than 200 multilateral trade agreements has had a very tangible impact on international trade. GATT has played a key role in its development through the holding of multilateral trade negotiations (rounds) that systematized the development of international trade, and the creation of norms and rules of international trade law that give the international trade system the necessary clarity and legal force.
GATT did not contain a clear enumeration of its goals and principles, but they can be deduced from the meaning of its articles. The objectives of the GATT can be defined as follows: the establishment of the most favored nation treatment, which means non-discrimination, compliance with the obligations assumed, a single treatment for developing countries; tariff reduction; a ban on discriminatory taxes on foreign exports; anti-dumping policy; trade liberalization.
The basic principles of GATT can be seen as branch principles of international trade law:
Trade without discrimination;
Predictable and increasing market access;
Promoting fair competition;
Freedom of trade;
The principle of reciprocity;
Development of trade through multilateral negotiations.
Although during the 48 years of its existence, the GATT has achieved a lot in the development of international trade and its legal principles, there have been many mistakes and disappointments: in many areas not covered by GATT law, such as the international movement of services, individuals and capital, problems of bilateralism, sectoral agreements market sharing (for example, in relation to air and sea transport), monopolies, cartelization and other forms of protectionism. Even in areas covered by GATT law, such as trade in agricultural products, steel, textiles, governments have often resorted to protectionist pressures, departing from their GATT commitments to open markets and non-discriminatory competition. The sectoral destruction of GATT legal free trade provisions also exposed broader and more serious "constitutional imperfections" in national systems and international trade law. This once again confirmed that legal guarantees of freedom and non-discrimination cannot remain effective either at the national or international level until they are included in an integrated constitutional system of institutional "checks and balances".
The last, eighth round of GATT multilateral trade negotiations, which took place from 1986 to 1993 and was called the Uruguay Round, was designed to bring the GATT system in line with modern international trade requirements. The final act, consolidating the results of the Uruguay Round, was signed at the ministerial meeting of the Trade Negotiation Committee on April 15, 1994 in Marrakesh (Morocco). The General Agreement on Tariffs and Trade was significantly improved and was called "GATT-1994". The General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) were adopted, and finally the Marrakesh Agreement establishing World Trade Organization (WTO), which entered into force on January 1, 1995.
The WTO Agreement, adopted by 124 countries and the EU on April 15, 1994, is not only the longest agreement ever concluded (containing over 25,000 pages), but also the most important worldwide agreement since the 1945 UN Charter. It includes a preamble and 16 articles regulating the scope and functions of the WTO, its institutional structure, legal status and relations with other organizations, decision-making procedures and membership. Its legal complexity comes from the 28 Additional Agreements and Arrangements included in the four Annexes to the WTO Agreement and its incorporation into the Final Act integrating the results of the Uruguay Round of multilateral trade negotiations, including 28 subsequent ministerial decisions, declarations and one agreement regarding the Uruguay Round Agreements .
The preamble of the WTO Agreement contains the goals of the new organization: raising living standards and incomes, achieving full employment, increasing production and trade in goods and services, and the rational use of world resources. The preamble also introduces the idea of "sustainable development", linking it to the need for the rational use of world resources, protection and preservation of the environment, taking into account the uneven level of economic development of countries. It also points to the need for further efforts to ensure that developing countries, especially the least developed, share in the growth of international trade in line with their economic development needs.
As a global integration agreement in the field of international movement of goods, services, individuals, capital and payments, the WTO Agreement eliminates the current fragmentation of individual international agreements and organizations regulating relations in these areas. After 50 years since the Bretton Woods Conference, its entry into force on January 1, 1995 completed the formation of the legal structure of the Bretton Woods system based on the International Monetary Fund, the World Bank Group and the WTO. Moreover, since the Statutes of the IMF and the World Bank contained only a few substantive rules related to government policy and dispute settlement, the WTO was created to perform also constitutional and rule-making functions in addition to its exclusive functions of supervision and settlement of disputes in the field of foreign trade. member countries policies:
WTO promotes the implementation, management and implementation of the provisions of the Uruguay Round and any new agreements that will be adopted in the future;
The WTO is a forum for further negotiations between member countries on issues covered by the agreements;
The WTO is authorized to resolve contradictions and disputes arising between member countries;
The WTO publishes periodic trade policy reviews of member countries.
Russia's relations with the GATT/WTO began to take shape in 1992, when the Russian Federation inherited from the USSR the observer status in the GATT granted to the USSR in May 1990. In 1992, the process of Russia's accession to the GATT as a full member was launched in accordance with Decree of the Government of the Russian Federation of May 18, 1992 No. 328 "On the development of relations between the Russian
Federation and the General Agreement on Tariffs and Trade. In order to coordinate the activities of the federal executive authorities on the participation of the Russian Federation in the work of the WTO and the accession process, the Interdepartmental Commission (MB K) on GATT was formed in 1993, its composition and interdepartmental distribution of responsibilities in the main areas of its activity were approved. The lead agency in this negotiation process is the Russian Ministry of Trade. In connection with the change in the institutional status of the GATT and the emergence of the World Trade Organization, this commission was transformed in 1996 into the International Commission for WTO issues (Decree of the Government of the Russian Federation of January 12, 1996 No. 17). It currently includes more than 40 ministries and departments of the Russian Federation. In August 1997, on the basis of the said IAC, the Commission of the Government of the Russian Federation on WTO issues was established. On July 16, 1993, the Council of Representatives of the GATT, in accordance with the established procedure, formed the Working Group on Russia's accession to the GATT, and in October 1993, Russia received the status of an associate participant in the Uruguay Round of multilateral trade negotiations. Russia's negotiating position on the issue of WTO accession is based on the fact that the conditions for Russia's membership will be as close as possible to the standard ones, excluding infringement of Russia's rights in trade. At the same time, the Russian side is interested in understanding and recognition by all WTO partners of the special transitional nature of the Russian economy. Russia's accession to the WTO is an integral element of the strategic course towards Russia's integration into the world economy as a full member.
An important role in the development of international trade and the law of international trade belongs to the United Nations and its bodies and specialized agencies.
United Nations Commission on International Trade Law (UNCITRAL) is a subsidiary body of the UN General Assembly. UNCITRAL was established in 1966 at the 21st session of the General Assembly to enable the UN to play a more active role in reducing and eliminating legal obstacles to international trade. The mandate given by the UNGA to the Commission as "the central legal body within the UN system in the field of international trade law" is to promote the progressive harmonization and unification of international trade law by:
Coordinating the work of international organizations in this field and encouraging cooperation between them;
Encouraging greater participation in international conventions and greater acceptance of existing model and uniform laws;
Preparing or encouraging the adoption of new international conventions, model and uniform laws, and encouraging the codification and wider acceptance of international trade terms, regulations, customs and practices, in cooperation, where appropriate, with organizations active in the field;
Finding ways and means to ensure uniform interpretation and application of international conventions and uniform laws in the field of international trade;
Collection and dissemination of information on national legislation and modern legal developments, including case law, in the law of international trade;
Establishing and maintaining close cooperation with the UN Conference on Trade and Development, as well as with other UN organizations and specialized agencies dealing with international trade issues;
Taking any other action it deems useful for the performance of its functions.
The Commission determined the basis for its existing long-term program of work at its 11th session in 1978 on the following topics: the international sale of goods; international negotiable documents; international commercial arbitration and conciliation; international transportation of goods; legal implications of the new economic order; industrial contracts; liquidated damages and penalty clauses; universal unit of account for international conventions; legal issues arising from automatic data processing. Additional topics were also identified: provisions protecting parties from the effects of currency fluctuations; bank commercial loans and bank guarantees, general terms and conditions of sale; barter transactions and barter-type transactions; multinational enterprises; security interests in goods, liability for damage caused by goods intended for international trade or being the subject of international trade; most favored nation provisions.
Among the acts prepared by the Commission:
Convention on the Limitation Period in the International Sale of Goods, 1974 and Protocol amending it, 1980, United Nations Convention on Contracts for the International Sale of Goods, 1980;
USCITRAL Arbitration Rules (1976), UNCITRAL Model Law on International Commercial Arbitration (1985);
Convention on the Carriage of Goods by Sea, 1978;
Model Law on Electronic Commerce, 1996.
United Nations Conference on Trade and Development (UNCTAD) was established in 1964 by the General Assembly as a subsidiary body, but has long since grown into an independent autonomous body of the UN. UNCTAD is the main body of the UNGA in the field of trade and development. UNCTAD is the focal point within the United Nations for an integrated approach to development and interrelated issues in the areas of trade, finance, technology, investment and sustainable development.
The main objectives of the Conference are: to maximize the opportunities of developing countries in the field of trade, investment and development and to assist them in meeting the challenges associated with the process of globalization and integration into the world economy on an equitable basis.
To achieve these goals, UNCTAD carries out its activities in the following areas:
Globalization and Development Strategy;
International trade in goods and services and commodity issues;
Investment, technology and enterprise development;
Service Infrastructure for Trade Development and Efficiency;
Least developed, landlocked and island developing countries;
Intersectoral issues.
In its activities, UNCTAD cooperates with the United Nations Department of Economic and Social Affairs (DESA), the United Nations Development Program (UNDP), the WTO, the International Trade Center (ITC), UNIDO, WIPO and other organizations.
The area of international trade in goods and services, as well as commodity issues, is a very active area for UNCTAD. It assists developing countries, and the least developed among them in particular, in maximizing the positive impact of globalization and liberalization on sustainable development by helping them to effectively integrate into the international trading system.
UNCTAD analyzes the impact of the Uruguay Round agreements on trade and development and assists countries in seizing the opportunities arising from these agreements, in particular by strengthening their export capacity.
The conference promotes the integration of trade, environment and development, encourages diversification in commodity-dependent developing countries and helps them manage trade-related risks.
UNCTAD achieves tangible results in its work. Were developed: Agreement on a global system of trade preferences
between developing countries (1989); Guidelines for International Action on Debt Restructuring (1980); Major New Program of Action for the Least Developed Countries (1981) and Program of Action for the Least Developed Countries for the 1990s (1990). A number of conventions in the field of transport have been adopted.
UNCTAD/WTO International Trade Center (ITC) was created on the basis of an agreement between UNCTAD and GATT in 1967 to provide international assistance to developing countries in expanding their exports. ITC is managed by UNTAD and the WTO jointly and on an equal footing.
ITC is a technical cooperation organization whose mission is to support developing countries and countries with economies in transition, and in particular their business sectors, in their efforts to realize their potential in developing exports and improving import operations in order to achieve ultimately sustainable development.
International trade in commodities is governed by multilateral agreements, many of which were directly negotiated by UNCTAD (international agreements on cocoa, sugar, natural rubber, jute and jute products, tropical timber, tin, olive oil and wheat). International organizations are being created with the participation of importing and exporting countries or only exporters. An example of the latter is the Organization of Petroleum Exporting Countries (OPEC), which protects the interests of oil-producing countries (mainly developing countries) by harmonizing oil prices and introducing oil production quotas for countries participating in this Organization.
There are also international organizations whose activities are aimed at promoting international trade. These are the International Chamber of Commerce, the International Bureau for the Publication of Customs Tariffs, the International Institute for the Unification of Private Law (UNIDROIT).
3. International legal regulation of cooperation in the field of trade in food and raw materials
A characteristic feature of the development of the world economy of the 20th century, especially its second half, is the need for international cooperation between states in the field of regulating trade in certain types of food and raw materials. This need was due to varying degrees of development not only of the economies of individual states, but also of individual sectors of their economies.
The regulation of trade in these products aims at balancing the demand and supply of goods on the world market and keeping them at agreed market prices within certain limits. This regulation is carried out by concluding so-called international commodity agreements. Such agreements determine the volume of supplies of food and raw materials to the world market. On the one hand, agreements keep the agreed prices for individual products from falling, and on the other hand, they do not allow overproduction of individual products, that is, they also affect their production.
The first agreements were concluded in the 1930s and 1940s.
The first such agreement was the International Wheat Agreement, which was concluded in 1933. His conclusion was due to the world economic crisis that broke out in 1929-1933. This Agreement determined the quotas for the production and export of wheat by the participating countries. In 1942, the International Wheat Council was established, which carried out coordination functions, in particular on wheat exports. Among other agreements of the 1930s and early 1940s were such as the Agreements on the regulation of the production and export of rubber (1934), tin (1942), sugar (1937), coffee (1940).
The international experience accumulated as a result of cooperation between states on the basis of these agreements has shown the effectiveness of such cooperation. In this regard, in subsequent years, states, both exporters and importers, more or less regularly concluded commodity agreements relating to trade in certain types of food (agricultural) and raw materials.
A number of international commodity agreements are currently in force. Among them are agreements on coffee, cocoa, wheat, cereals, sugar, olive oil, jute and jute products, tropical timber, and tin.
The goals common to all commodity agreements are to stabilize world markets by ensuring a balance between supply and demand, expanding international cooperation in the world market for products, providing intergovernmental consultations, improving the situation in the world economy, developing trade, and also with the aim of establishing fair prices for food and raw materials. products. The parties to these agreements are the states-exporters (manufacturers) and the states-importers of the relevant food and raw materials.
A number of agreements provide for the creation of buffer (stabilization) stocks of certain products, such as tin and natural rubber. With the help of such reserves, sharp fluctuations in the prices of products are prevented and possible crises are prevented both in production and in their trade.
Other agreements, such as for cocoa, provide that member states must report, no later than the end of each year (calendar or agricultural) to the relevant authorities established on the basis of such agreements, information on stocks of products. Such information allows exporting countries to determine their policy in the production of relevant products. In other words, various means are used in international commodity agreements to stabilize supply and demand for food and raw materials.
All international commodity agreements provide for the formation of special international organizations, such as the International Sugar Organization, the International Tin Organization, the International Cocoa Organization, the International Coffee Organization, etc. The main function of these organizations is to exercise control over the implementation of the relevant agreements.
The supreme body of these organizations is an international council, for example: International Sugar Council, International Tin Council, International Cocoa Council, etc. Members of the councils are all parties to the agreements, both exporters and importers. At the same time, a fixed number of votes is established in the councils, which all participants have. These votes are distributed equally among the importing countries. At the same time, each participant has the number of votes depending on the volume of export or import of the corresponding product. Thus, the International Cocoa Agreement of July 16, 1993 provides that exporting members have 1,000 votes. Importing members also have the same number of votes. These votes are distributed among the participants as follows. Each exporting member has five primary votes. The remainder of the votes shall be distributed among all exporting Members in proportion to the average volume of their respective cocoa exports over the preceding three agricultural years. The votes of importing participants are distributed as follows: 100 votes are divided equally among all importing participants. The remainder of the votes shall be distributed among such Members according to the percentage of the average annual cocoa imports for the previous three agricultural years. The agreement states that no member can have more than 400 votes.
The international councils of these organizations have all the powers that are necessary for the implementation of the relevant agreements. The councils meet in regular sessions, which are convened, as a rule, twice a calendar or agricultural year. Council decisions are binding.
In addition to councils, executive committees are created. The members of these committees are elected by the exporting and importing members. The seats in the committees are distributed equally among these participants. Thus, the Executive Committee of the International Cocoa Organization consists of 10 representatives of exporting states and 10 representatives of importing states. He is responsible to the council, constantly monitors the state of the market and recommends to him such measures as the Committee considers appropriate for the implementation of the provisions of the agreement. The Council, in consultation with the Executive Committee, appoints an Executive Director who is the chief officer of the international organization. The executive director appoints the staff. The activities of the executive director and staff are international in nature.
International organizations, their executive directors, staff and experts shall enjoy privileges and immunities in accordance with the agreements concluded by these organizations with states regarding the location of such organizations.
All international organizations established under international commodity agreements cooperate with the Common Fund for Commodities, which is established in accordance with the Common Fund for Commodities Agreement concluded on June 27, 1980.
4. International legal cooperation in the field of monetary and financial relations
It is customary to consider international monetary and financial relations as a whole as opposed to trade. This is connected with the Bretton Woods agreements of 1944, on the basis of which the IMF and IBRD were established in the monetary and financial sphere, on the one hand, and GATT in the trade sphere, on the other.
International monetary and financial relations as special social relations in the field of international economic relations are an important part of the world economy. They manifest themselves in various forms of cooperation between states: in the implementation of foreign trade, the provision of economic and technical assistance, in the field of investment, international transportation, etc. In all these cases, there is a need for the production of certain payment, settlement, credit and other monetary transactions, where money acts as a currency as an international means of payment.
International Monetary and Financial Law- this is a set of international legal principles and norms governing interstate monetary and financial relations, the subjects of which are states and intergovernmental organizations. These relations are based on the principle formulated in the Charter of Economic Rights and Duties of States of 1974, according to which all States, as equal members of the international community, have the right to participate fully and effectively in the international decision-making process for the settlement of financial and monetary problems and to fairly enjoy the benefits arising from this. (v. 10).
In the field of international monetary and financial relations, the main forms of regulation are bilateral and multilateral agreements, as well as decisions of international monetary organizations.
As for bilateral agreements, they are very numerous in this area. Economic cooperation agreements and trade agreements contain provisions relating to monetary and financial relations. A special place is occupied by special agreements: credit and settlement.
Loan agreements determine the volume, forms and conditions for granting loans. Long-term (over five years), medium-term (from one to five years) and short-term (up to one year) loan agreements are distinguished by validity period. Long-term and medium-term agreements are used in the provision of technical assistance in the construction of industrial and other facilities, in the supply of expensive equipment, machinery, etc. Short-term agreements affect mainly the issues of current trade. International credit has two main forms: commodity and monetary. Loans in cash are called loans. Their provision and redemption are made exclusively in cash. Ordinary loans can be repaid not only in cash, but also in commodity form, through the supply of goods.
In the field of international economic turnover, payment, clearing and payment-clearing agreements are known. Payment agreements provide for settlements in the agreed currency, the mechanism for such settlements, and the procedure for providing currency for payments. Clearing agreements are settlements on a non-cash basis by offsetting counterclaims and obligations on special (clearing) accounts with the central banks of the contracting parties. Clearing and payment agreements are clearing settlements with the settlement of the balance in the agreed currency.
Multilateral agreements are becoming increasingly important in the field of monetary and financial relations. Most of these agreements establish uniform norms, being a tool for unification and influencing the formation of national monetary and financial norms. Among such agreements, mention should be made of the Geneva Conventions on the Unification of Bills of Exchange of 1930, the Geneva Convention on the Settlement of Conflict Issues on Bills of Exchange and Promissory Notes of 1930 (Russia participates in these conventions), the Geneva Check Convention of 1931 (Russia does not participate), the UN Convention on International bills of exchange and international promissory notes of 1988 (did not enter into force), etc.
Within the framework of the European Union, a series of agreements, including the Maastricht Treaty of 1992, have been concluded, providing for the procedure for mutual settlements in eurocurrency. In the Commonwealth of Independent States, the Agreement on the Establishment of the Payments Union of the CIS Member States (1994) was signed.
In the regulation of international monetary and financial relations, international monetary organizations, funds, and banks play a significant role. At the universal level, these are the IMF and the World Bank. The main goal of the IMF is to coordinate the monetary and financial policies of member states and provide them with loans (short-term, medium-term and partly long-term) to regulate balance of payments and maintain exchange rates. The IMF monitors the operation of the international monetary system, the monetary and exchange rate policies of member countries, and their compliance with the code of conduct in international monetary relations.
As for the World Bank, its main task is to promote sustainable economic growth by encouraging foreign investment for industrial purposes, as well as providing loans for the same purposes (in areas such as agriculture, energy, road construction, etc.). While the World Bank only lends to poor countries, the IMF can do so for any of its member countries.
Regional monetary and credit organizations have become widespread. In Europe, first of all, the European Bank for Reconstruction and Development should be mentioned.
The European Bank for Reconstruction and Development (EBRD) is an international financial organization established in 1990 with the participation of the USSR to assist the countries of Central and Eastern Europe in carrying out economic and political reforms and forming a market economy. It was founded by 40 countries: all European (except Albania), the USA, Canada, Mexico, Morocco, Egypt, Israel, Japan, New Zealand, Australia, South Korea, as well as the European Economic Community and the European Investment Bank (EIB). As of April 1999, EBRD members are 59 countries, as well as the EU and the EIB.
The supreme body of the EBRD is the Board of Governors, in which each member of the EBRD is represented by one Governor and one Deputy Governor. It determines the main directions of the Bank's activities. The Board of Directors (23 members) is the main executive body responsible for the current issues of the EBRD's work. It is formed as follows: 11 directors - from EU member states, the EU itself and the EIB; 4 - from CEE countries eligible to receive assistance from the EBRD; 4 from other European countries and 4 from non-European countries. The President of the Bank is elected for four years and is responsible for organizing the work of the EBRD in accordance with the instructions of the Board of Directors.
The number of votes of each member is equal to the number of shares to which he has subscribed. EU member countries, the EIB and the EU have a quota of 51% in the authorized capital, CEE countries - 13%, other European countries - 11%, non-European countries - 24%. The United States (10%), Great Britain, Italy, Germany, France, Japan (8.5% each) have the largest shares in the capital. The share of Russia is 4%.
Decisions in the governing bodies of the EBRD require a simple majority of votes. Some issues require a special majority (2 / 3, or 85% of the votes to which members voting are entitled).
The EBRD's activities are aimed at assisting member countries in implementing economic reforms at various stages of the transition to a market economy, as well as promoting the development of private entrepreneurship. At the same time, the EBRD openly announced that it would put forward political requirements and conditions for the provision of funds.
Russia is cooperating closely with the EBRD. Data for 1995-1997 show that a third of the EBRD's investments were invested in Russian enterprises, for example, a number of projects were financed in the oil and gas complex of Russia, under the TACIS program, etc.
Among other European financial and credit institutions, it is necessary to mention the European Investment Bank (EIB) and the European Investment Fund (EIF), operating within the European Union, as well as the Nordic Investment Bank (NIB) and the Nordic Development Fund (NDF), created within the Nordic Council ministers.
International financial and credit institutions operating in other regions of the world have basically similar goals and structure. Their main tasks are to support the less developed countries of the world, promote economic growth and cooperation in the respective regions where such organizations operate, provide loans and invest their own funds in order to achieve the economic and social progress of developing Member States, assist in coordinating plans and goals development, etc. The governing bodies of regional financial and credit organizations are boards of governors, boards of directors and presidents.
The largest of the regional financial and credit organizations is the Asian Development Bank (ADB), established in 1965 on the recommendation of the Conference on Asian Economic Cooperation, convened under the auspices of the Economic Commission for Asia and the Far East. Its main goal is to promote economic growth and cooperation in the region of Asia and the Far East.
ADB members are 56 states: 40 regional and 16 non-regional, including the USA, Great Britain, Germany, France and other capitalist countries. The United States and Japan have the largest share in the capital and, accordingly, the number of votes (16% each).
A number of financial and credit organizations operate in the Americas region: the Inter-American Development Bank (IADB), the Inter-American Investment Corporation (MAIC), the Caribbean Development Bank (CBD), the Central American Bank for Economic Integration (CABEI). The largest is the Inter-American Development Bank, established in 1959 to help accelerate economic and social development in Latin America and the Caribbean. Its members are 46 states: 29 regional, including the United States, and 17 non-regional, including the UK, Germany, Italy, France, Japan, etc.
The African Development Bank Group (AFDB), the East African Development Bank (EADB), the Central African Development Bank (BDEAS), and the West African Development Bank (BOAD) operate in the African region.
The African Development Bank (ADB) was established in 1964 with the assistance of the United Nations Economic and Social Commission for Africa. It consists of 52 regional states and 25 non-regional ones, including the largest capitalist countries. In 1972, the African Development Fund was established, and in 1976, the Nigerian Trust Fund, which became part of the African Development Bank Group. All organizations set themselves the task of promoting economic development and social progress of regional member states, financing investment programs and projects, encouraging public and private investments, etc.
To ensure economic development and cooperation between Arab countries, such financial and credit organizations as the Arab Fund for Economic and Social Development (AFESD), the Arab Monetary Fund (AVF), the Kuwait Fund for Arab Economic Development (KFAED) operate.
Of particular note is the Islamic Development Bank (IDB), established in 1974 to promote the economic development and social progress of member countries and Muslim communities in accordance with Sharia principles. The members of the IDB are 50 states, including from the CIS countries - Turkmenistan, Kazakhstan, Tajikistan, Kyrgyzstan, Azerbaijan.
Universal and regional financial institutions provide some positive assistance to the economic growth and social progress of the least developed countries. At the same time, it is impossible not to notice that in all these organizations the United States and other large capitalist countries occupy the leading position, using their mechanisms to obtain tangible benefits, both economic and political, and to export Western values, ideals and way of life.
5. International transport law
International transport law- a complex part of international law, which includes relations of both public law and (mainly) private law nature.
Historically, only relations arising in the sphere of maritime, air and (to a lesser extent) road transport reach the level of universal regulation in this area. Special agreements (conventions, treaties) apply to water (river), rail, road and pipeline transport.
International transportation usually means the transportation of passengers and cargo between at least two states on the terms (uniform norms) established in international agreements regarding the requirements for transportation documentation, the procedure for passing administrative (customs) formalities, the services provided to the passenger, the conditions for accepting cargo for transportation and issuing it to the recipient, the liability of the carrier, the procedure for filing claims and claims, the procedure for resolving disputes.
In international maritime transport, along with international contractual norms, customary legal norms are widely used. In this case, the definition of the law applicable to maritime transport is of paramount importance.
The Merchant Shipping Code of the Russian Federation of 1999 establishes that the rights and obligations of the parties under a contract for the carriage of goods by sea, a contract for the carriage of passengers by sea, as well as under contracts for time charter, sea towing and marine insurance are determined by the law of the place where the contract is concluded, unless otherwise established by agreement of the parties. . The place of conclusion of the contract is determined by the law of the Russian Federation.
Maritime transportation performed without the carrier providing the entire ship or part of it is issued by a bill of lading, the details of which, the procedure for presenting claims against the carrier, the terms of the carrier's liability based on the principle of liability for fault are defined in the Brussels Convention on the Unification of Certain Rules on Bill of Lading of 1924. In this case, however, "navigational error" (error of the captain, sailor, pilot in navigation or management of the ship) excludes the liability of the sea carrier.
The UN Convention on the Carriage of Goods by Sea, adopted in Hamburg in 1978, amends the 1924 Convention on such issues as extending the scope to the carriage of animals and deck cargo, increasing the carrier's liability limit for the safety of cargo, and detailing the procedure for filing claims against the carrier.
Regular (linear) maritime transportation of goods is usually carried out on the basis of agreements on the organization of permanent sea lines, which can be concluded both by states (governments) and (as a rule) by ship-owning companies. Such agreements define the basic conditions for the operation of the respective lines, and the conditions for maritime liner transportation are determined in the liner bills of lading, relevant rules and tariffs. Ship-owning companies often form, on the basis of an agreement, groups of carriers called liner conferences, with the help of which the largest companies achieve the establishment of high freight rates and other preferential conditions.
The international air transportation of passengers, baggage, cargo and mail is subject to the Warsaw System documents. The basis of this system is the Warsaw Convention for the Unification of Certain Rules Concerning International Carriage by Air of 1929, supplemented by the Hague Protocol of 1955. The Convention applies to carriage carried out between the territories of the States Parties, as well as to carriage when the place of departure and the place of destination are in the territory of the same State Party, and the stopover is provided for in the territory of another state, even if not party to the Convention. The Convention defines the requirements for transportation documents, the rights of the sender to dispose of the cargo along the route, the procedure for issuing cargo at the destination, the carrier's responsibility to passengers and the cargo owner.
According to the Warsaw Convention, the liability of the carrier is based on fault: the carrier must prove that he and the persons appointed by him took all measures to avoid harm, or that they could not be taken. Under the terms of the Warsaw Convention, the limit of the carrier's liability in respect of the death or bodily injury of a passenger is 125,000 Poincare French gold francs (a franc worth 65.5 mg 0.900 fine gold), for each kilogram of luggage and cargo - 260 francs, for hand luggage - 5 thousand francs. In the Hague Protocol, these limits are doubled. In addition, they can be increased by the carrier upon agreement with the passenger, proof of which is the purchase of a ticket by the passenger. Many leading air carriers (taking advantage of this opportunity) entered into an agreement among themselves (the Montreal Agreement of 1966) to increase the limits of their liability for transportation to the United States, from the United States or through the United States to a limit of 75 thousand US dollars.
In the field of rail transport, the most well-known are the Berne Conventions on the Carriage of Goods by Rail (abbreviated as CIM) and on the Carriage of Passengers by Rail (abbreviated as IPC). Most of the countries of Europe, Asia and North Africa participate in them. In 1966, the IPC Supplementary Agreement on the responsibility of railways for the carriage of passengers was concluded. In 1980, the Conference on the Revision of the Berne Conventions concluded the Agreement on International Carriage by Rail (COTIF). The latter document consolidates the Berne Conventions and the 1966 Supplementary Agreement into a single document with two annexes. Thus, Appendix A defines the conditions for the carriage of passengers, and Appendix B - the conditions for the carriage of goods.
The rates of carriage charges are determined by national and international tariffs. There are deadlines for the delivery of goods. Thus, according to the COTIF rules, the total delivery time for goods at high speed is 400 km, and for low speed cargo - 300 km/day At the same time, the railways retained the right to establish special delivery times for individual messages, as well as additional deadlines in the event of significant difficulties in transportation and other special circumstances.
The maximum amount of liability of railways in case of non-safety of transported goods in COTIF is determined in units of account of the International Monetary Fund - SDR (17 SDR, or 51 old gold francs for 1 kg gross weight).
COTIF rules stipulate that losses caused by delay in delivery are reimbursed to the cargo owner within the limits of three times the carriage charges.
The conclusion of the contract for the international carriage of goods is formalized by drawing up a consignment note in the prescribed form, and the consignor receives a duplicate of the consignment note. Responsibility of railways for non-safety of the cargo occurs in the presence of the fault of the carrier, which in some cases must be proved by the cargo owner. The non-safety of the cargo must be confirmed by a commercial act. In case of delay in delivery, the railway pays a fine in a certain percentage of the freight charge.
Claims against railways are brought in court, and a claim must first be sent to the carrier. There is a nine-month period for filing claims and lawsuits, and a two-month period for claims for delay in the delivery of goods. The railway has 180 days to consider the claim, during which time the limitation period is suspended.
Many countries have signed bilateral agreements on international freight and passenger traffic.
The rules regarding road transport are contained in the Convention on Road Traffic and in the Protocol on Road Signs and Signals of September 19, 1949 (the version of 1968 is valid, which entered into force in 1977). The Russian Federation participates in these agreements. There is also the Customs Convention on the International Carriage of Goods of 1959 (in 1978 a new edition came into force). RF is a member.
The terms of the contract for the international carriage of goods by road between European countries are determined by the Convention on the Contract for the International Carriage of Goods by Road (abbreviated CMR) of May 19, 1956. The majority of European states participate in the Convention. It defines the basic rights and obligations of the cargo owner and carrier in road transportation, the procedure for accepting cargo for transportation and issuing it at the destination. The limit of liability in case of non-safety of the cargo was also established - 25 gold francs for 1 kg gross weight.
In road transportation, it is essential to create guarantees in case of harm to third parties by motor vehicles - a source of increased danger. This is achieved through the introduction of compulsory civil liability insurance, which is provided for both by domestic legislation and a number of international agreements. Thus, bilateral agreements on the organization of road transport concluded with a number of countries provide for compulsory civil liability insurance for international road transport.
Among the relevant international documents in this area, we should highlight the Geneva Convention on Road Traffic of September 19, 1949. In accordance with this Convention, the contracting states, while retaining the right to establish rules for the use of their roads, decide that these roads will be used for international traffic in conditions provided for in this Convention and shall not be obliged to extend the benefits arising from the provisions of this Convention to motor vehicles, trailers or drivers of motor vehicles if they have been in their territory continuously for more than one year.
For the purpose of applying the provisions of this Convention, the term "international traffic" means any traffic involving the crossing of at least one state frontier.
In addition, the parties to the Convention undertake to exchange information necessary to identify drivers who have domestic permits to drive a car and are guilty of violating the rules of international traffic. They also undertake to exchange information necessary to identify the owners of foreign vehicles (or persons in whose name such vehicles were registered) whose actions led to serious traffic accidents.
On September 19, 1949, the Protocol on Road Signs and Signals was concluded in Geneva. It should also be noted the Agreement on the Implementation of a Unified Container Transport System (Budapest, December 3, 1971).
According to this document, the Contracting Parties agreed to create a system for the carriage of goods in domestic and especially international communications, based on the use by the parties of all modes of transport of heavy universal and special containers according to the technical, technological and organizational conditions agreed upon by them, hereinafter referred to as the "single container transport system" . This system should provide for the possibility of developing container transportation of goods also between contracting parties and third countries.
For the transportation of goods by air, the contracting parties will use containers that meet the conditions for such transportation, with the parameters recommended by ISO and IATA (International Air Transport Association).
The contracting parties shall organize a network of regular international container lines of rail, road, water and air transport, linked to domestic container lines, taking into account the national transport needs and the transport structure of the contracting parties, as well as container transfer points to ensure the transfer of containers from one mode of transport to another and between railways with different gauges. In some cases, it is envisaged to create joint transshipment container points.