Recommendatory acts and decisions of international bodies, acts of international conferences. Procedure for concluding an international treaty Implementation of acts of bodies of international organizations in the Russian Federation
The right to conclude international treaties (contractual legal capacity) is the most important element of international legal personality, a necessary attribute of the main subjects of international law, primarily states. Each state has the legal capacity to conclude international treaties. The legal capacity of international organizations to conclude treaties is governed by the rules of the relevant organization.
The conclusion of an international treaty is a process consisting of a number of successive stages, the main of which are the coordination of the text of the treaty and various ways of expressing the consent of the parties to be bound by the treaty. They, in turn, consist of a number of substages, such as signing, ratification, approval, accession, etc. It is not necessary that every agreement goes through all the substages, but any agreement goes through the stage of agreeing on the text and one or another form in which consent is expressed state or international organization to be bound by the treaty. The features of the procedure and stages of concluding international treaties are determined both by the content of the treaty and the composition of its participants. For example, international organizations do not use ratification.
States enter into international treaties through their highest state bodies established in constitutions and other domestic regulations. International organizations conclude treaties through their competent authorities, specified in their charters or other regulations of these organizations.
There are 2 main stages:
1. Development of an agreed text of the treaty (Tunkin - “harmonization of the wills of states”).
Typically, international treaties are discussed through diplomatic channels before being concluded. A special commission for conducting negotiations may be established (consisting of representatives of states that have received a mandate to conduct negotiations or take other actions). Without granting permissions there can be: President, Prime Minister, Minister of Foreign Affairs: only they can be participants without granting powers. Next, the text of the agreement is developed (before this it was just a draft) through concessions and mutual compromise. That is why this stage is also called authentication: it is the so-called. a line after which the text can no longer be changed. This is also fixed in the initialing: this is the initialing of authorized persons, it is page-by-page (in special cases - item-by-item). Initialing prohibits further changes.
Second form of authentication– ad referendum. –: a conditional signature that requires approval (usually government approval).
Third form– signing the text of a treaty that needs ratification (this is a vote, the adoption of a resolution, the annex to which is the text of the treaty (this applies to international organizations)). Can be adopted by voting:
absolute majority (more than 50%),
qualified majority (2/3, 3/4...),
· on the principles of consensus (no objections, even if there are abstainers),
unanimous (all in favor, no abstentions),
· “in the package” - unanimity - on the most important issues, but on the rest you can sacrifice.
oclomation (emotions),
· “with their feet” (dissenters leave).
2). expression of consent to be bound by this treaty for a given state.
Forms (substages):
¾ signing,
¾ ratification,
¾ connections,
¾ statement,
¾ exchange of instruments of ratification,
¾ conclusion.
1) Signature – comes into force after signature, unless ratification is provided. If it is provided, then signing is only authentication.
2) Ratification - after it, states will have to refrain from actions that deprive the treaty of its object and purpose.
Alternative principle: sequence of signing (if the signature of the Russian Federation is on the left and France is on the right, then this is a Russian treaty (i.e. in Russian)).
If a multilateral treaty, then the states are arranged in alphabetical order (the signature of the most interested state may be in the first line).
Ratification is the approval of a treaty by an authorized body.
In the Russian Federation - through the adoption of a Federal Law (in the USSR - the Presidium of the Supreme Court), approved by the Federation Council (period - 14 days for mandatory consideration, and not according to the principle of a regular Federal Law, if not considered within 14 days, then automatically for signature by the President).
Law on International Treaties of the Russian Federation (1995) - a list of treaties with mandatory ratification and with unnecessary ratification.
The following agreements must be ratified:
About fundamental rights/freedoms,
On issues requiring amendments to federal legislation (only ratified treaties (in case of conflict) have the force of laws higher than the law),
On territorial delimitation (for example: the issue of the Kuril Islands. The President can conclude a corresponding agreement only subject to its ratification),
On the participation of the Russian Federation in international entities through which the powers of the Russian Federation are transferred.
On issues of defense capability and arms reduction.
Ratification has 2 sides:
a) internal - adoption of an internal act of ratification.
b) external - signing by the President of the instrument of ratification, and the exchange of them between the participants.
4) Exchange of instruments of ratification.
If the state disagrees with something, then a clause: this is an official statement of the state in which it cancels or changes certain provisions of the treaty. A reservation can only be in writing at any substage of expressing consent to be bound. Reservations are possible only to multilateral treaties.
Reservations mode:
If State A has made a reservation, then State B has an objection to it, and B is silent, then:
· the entire contract between A and B is void,
· between A and B only this provision is invalid.
The reservation can be withdrawn at any time, and the consent of the objecting states is not required.
Reservations are not allowed:
1. if this is provided for in the contract itself
2. reservations may be only to articles No....
3. reservations may be to everyone except…. articles"
4. Reservations are unacceptable to the object and purpose of the contract.
5 ."Conclusion"- final expression of consent in any form. After conclusion, they are registered with the UN Secretariat (Article 102 of the UN Charter), i.e. This is bringing the treaty to the attention of the world community, otherwise it cannot be referred to.
6 . Accession.: the state did not participate in the development of the treaty; it was created even before the accession of this state.
The status of acts of international intergovernmental organizations is determined by their charters. Within the limits of their competence, the bodies of these organizations adopt, as a rule, acts of recommendation or acts of a law enforcement nature. So, according to Art. 10, 11, 13 of the UN Charter, the General Assembly is authorized to “make recommendations”, and according to Art. 25 members UN are subject to the decisions of the Security Council, but these decisions themselves are related to its law enforcement activities.
An international organization itself does not have the right to turn into an international “legislator”. At the same time, member states of the organization can use the organization for rule-making activities. At sessions of the UN General Assembly, resolutions are adopted that record the approval on behalf of the Organization of international treaties developed within its framework. This was the case with the Treaty on the Non-Proliferation of Nuclear Weapons (1968), the Convention on International Liability for Damage Caused by Space Objects (1971), the International Covenants on Human Rights (1966), and the International Convention against the Taking of Hostages ( 1979) and other acts. In these cases, the text of the treaty is published in UN documents as an annex to the General Assembly resolution. But it is the treaty (after it is signed by the states and comes into force), and not the resolution, that acquires the significance of a source of international law. A similar method is used in other international organizations of a universal nature. A few examples: within the framework of the International Atomic Energy Agency (IAEA), the texts of the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986) were adopted; within the ILO, the text of the Convention on Tribal and leading indigenous peoples in independent countries (1989), within the framework of the UN Educational, Scientific and Cultural Organization - Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) . At the same time, those acts of international organizations that
§ 5. Acts of international organizations
is given a normative character by the Member States themselves. Such resolutions are adopted by the main (supreme) bodies of organizations in accordance with their functions in cases where the effective implementation of these functions is impossible without the creation of new forms of international law and, consequently, giving resolutions the status of sources of international law.
The binding legal force of the norms of the UN General Assembly Resolution 1514 (XV) of December 14, 1960 “Declaration on the Granting of Independence to Colonial Countries and Peoples” can be considered generally accepted. This act was not limited to confirming or interpreting the international legal norms in force at that time, but, in accordance with the purposes and principles of the UN Charter, established new imperative norms regarding the complete prohibition of colonialism and the obligation to immediately grant independence to the peoples of the colonies. This meant something new, compared to Ch. XI-XIII of the UN Charter, resolving issues affecting the status of non-self-governing territories and the international trusteeship system. It is noteworthy that in subsequent UN documents and in acts of our state, references to the provisions of the Declaration are equivalent in legal characteristics to references to international treaties.
The assessment of UN General Assembly Resolution 2625 (XXV) of October 24, 1970 “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations” is considered controversial in science. The judgment that the role of the Declaration is reduced to the interpretation of the principles already enshrined in the UN Charter raises objections, since the Declaration specifies the principles of the Charter and formulates the rights and obligations of states in accordance with each principle. Such specification is nothing more than rule-making. Accordingly, the act of codification and specification of basic principles is essentially a normative act, i.e., a source of international law.
The normative role of the UN General Assembly in the adoption of amendments to the UN Charter and the Statute of the International Court of Justice is unique. According to Art. 108 of the Charter and Art. 69 of the Statute, amendments are adopted by the General Assembly and ratified by member states UN. In practice, activity
Chapter 5. Sources of international law
Article of the UN such resolutions concerning Art. 23, 27, 61, 109 and having a normative nature, were adopted three times - in 1963, 1965 and 1971.
Recently, the UN Security Council, whose decisions until now have been limited to law enforcement, has also become involved in rule-making activities. The significance of the source of international law is the Charter (Statute) of the International Tribunal for the purpose of prosecuting persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia, approved by its resolution 827 of May 25, 1993.
Regarding the activities of some other international organizations, it can be stated that they have adopted administrative and regulatory acts such as standards of the International Civil Aviation Organization (ICAO), WHO sanitary rules, and IAEA rules for the safe handling of radioactive materials. The possibility of adopting rules within the framework of the International Seabed Authority is provided for in the UN Convention on the Law of the Sea (Articles 160, 162, etc.). If states have a positive attitude, such rules may be perceived as regulations.
Last updated: July 2017
Cooperation with competent authorities of foreign states, as well as with international bodies and organizations is one of the priority areas of activity of the Prosecutor General's Office of the Russian Federation. To ensure this important direction, in June 2006, by order of the Prosecutor General of the Russian Federation, instead of the International Legal Department, the Main Directorate of International Legal Cooperation was created, which included the extradition department, the legal assistance department and the international law department.
In order to increase the efficiency of cooperation with the competent authorities of foreign states on cases being processed by the central apparatus of investigative bodies, as well as on cases that have received a great public response, in September 2010, within the Main Directorate of International Legal Cooperation, a department of international cooperation for special important matters (as a manager). In March 2011, a department of legal assistance and cross-border cooperation with East Asian states was formed in the legal assistance department of the Main Directorate of International Legal Cooperation (with a location in Khabarovsk).
Today, the most important place in the international activities of the Prosecutor General's Office of the Russian Federation is occupied by issues of interaction with foreign partners in the field of criminal proceedings. These are issues of extradition and provision of legal assistance in criminal cases, including in the field of return from abroad of property obtained as a result of committing crimes.
In accordance with international treaties and Russian legislation, the Prosecutor General's Office of the Russian Federation is the competent authority of the Russian Federation on issues of extradition and legal assistance in criminal cases.
In particular, by Decrees of the President of the Russian Federation (dated October 26, 2004 No. 1362, dated December 18, 2008 Nos. 1799 and 1800, dated February 13, 2012 No. 180), the Prosecutor General's Office of the Russian Federation is designated as the central body for implementing the provisions on cooperation on extradition and legal assistance in criminal matters contained, respectively, in the UN Convention against Transnational Organized Crime of 15 November 2000, the UN Convention against Corruption of 31 October 2003, the Council of Europe Criminal Law Convention of 27 January 1999 and the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of November 21, 1997.
Currently, the General Prosecutor's Office of the Russian Federation interacts in the field of criminal proceedings with partners from more than 80 countries of the world. Such interaction is carried out on the basis of international treaties or the principle of reciprocity, enshrined in Articles 453, 457, 460, 462 of the Criminal Procedure Code of the Russian Federation.
The General Prosecutor's Office of the Russian Federation is the only competent body of the Russian Federation that sends to foreign states extradition requests persons to bring them to criminal responsibility or execute sentences, and also makes decisions on foreign requests for the extradition of persons from the Russian Federation.
Russia has special bilateral and multilateral international treaties regulating issues issuance, with almost 80 states (for a list of these agreements, see the section “Main documents”). In particular, Russia is a party to such multilateral treaties as the European Convention on Extradition of 1957 with its three additional protocols of 1975 and 1978 and 2012, as well as the Convention on Legal Assistance and Legal Relations in Civil, Family and Family Relations concluded within the CIS. criminal cases of 1993 with the Protocol to it of 1997.
The Russian Federation has special bilateral and multilateral agreements on legal assistance in criminal cases with more than 80 states (for a list of these agreements, see the section “Main documents”). Thus, Russia participates in a number of multilateral treaties in this area: the European Convention on Mutual Assistance in Criminal Matters of 1959 and its Additional Protocol of 1978, the European Convention on the Transfer of Criminal Proceedings of 1972, as well as the CIS Convention on legal assistance and legal relations in civil, family and criminal cases of 1993 with its Protocol of 1997.
Cooperation between the Prosecutor General's Office of Russia and the competent authorities of foreign states in matters of extradition and provision of legal assistance has been developing quite actively in recent years.
The scale of this cooperation is evidenced by the fact that annually the General Prosecutor's Office of the Russian Federation reviews more than 10 thousand materials on extradition, legal assistance in criminal cases, search and other issues within the competence of the General Prosecutor's Office of the Russian Federation in the field of criminal proceedings.
The most effective cooperation is with the competent authorities of Belarus, Kazakhstan, Uzbekistan, Germany, Spain, Serbia, and Switzerland.
Every year, the Prosecutor General's Office of the Russian Federation sends about 400 requests for the extradition of persons to the competent authorities of foreign states, and considers over 1,500 similar foreign requests.
The geography of cooperation in the field of issuance is expanding. Increasingly, criminals are trying to escape justice in states with which Russia does not have extradition treaties. However, in recent years, issues of transferring wanted persons to Russia have been successfully resolved with some of these countries (in particular, Chile, Ghana, Cambodia, Paraguay, the United Arab Emirates, and Thailand).
Every year, the General Prosecutor's Office of the Russian Federation reviews more than 6 thousand requests for legal assistance in criminal cases, both received from abroad and Russian, intended for referral to foreign countries.
The institution of transfer of criminal proceedings is effectively used. Petitions for criminal prosecution of foreign citizens who have committed crimes on the territory of Russia are sent to the competent authorities of foreign states, and petitions from foreign states for criminal prosecution of Russian citizens who have committed crimes abroad are also considered.
One of the important areas of activity of the Russian Prosecutor General's Office is cooperation with foreign colleagues in matters of search, arrest, confiscation and return of stolen property from abroad.
Thanks to cooperation with foreign colleagues, over $110 million have been returned to Russian companies from Switzerland alone over the past few years. USA, arrested on behalf of the Russian Prosecutor General's Office.
To date, at the request of the Russian Prosecutor General's Office, criminal funds totaling about 250 million euros and real estate worth about 300 million euros have been arrested and blocked abroad.
In May 2011, Chapter 29-1 was introduced into the Code of the Russian Federation on Administrative Offenses, regulating international legal cooperation in cases of administrative offenses. At the same time, the Prosecutor General's Office of Russia has been designated as one of the competent authorities for providing legal assistance in such cases.
In addition, the General Prosecutor's Office of the Russian Federation is the competent authority for the Commonwealth of Independent States (CIS) Convention on the Transfer of Persons Suffering from Mental Disorders for Compulsory Treatment (1997).
In recent years, in cooperation with the Russian Ministry of Justice and the Russian Ministry of Foreign Affairs, a lot of work has been carried out to develop the legal framework for our country’s participation in international cooperation in the field of criminal proceedings, as well as to implement the provisions of international treaties into Russian legislation.
Representatives of the General Prosecutor's Office of the Russian Federation take an active part in the development of draft agreements on extradition and legal assistance in criminal cases, incl. within international organizations.
In particular, one of the deputy heads of the Main Directorate of International Legal Cooperation of the Prosecutor General's Office of the Russian Federation has been successfully representing Russian interests in the Committee of Experts of the Council of Europe on the operation of European conventions on cooperation in criminal matters for more than 20 years, actively contributing to the implementation of the Russian initiative to modernize such conventions, in incl. in matters of speeding up and simplifying issuance procedures.
Work is being carried out on an ongoing basis to strengthen the legal framework for interdepartmental cooperation. In particular, within the CIS the following were signed:
Agreement on cooperation between the prosecutor general's offices (prosecutor's offices) of member states of the Commonwealth of Independent States in the fight against corruption dated April 25, 2007;
Agreement on cooperation between the prosecutor general's offices of the member states of the Commonwealth of Independent States in the fight against trafficking in persons, organs and human tissues of December 3, 2009.
In general, today the General Prosecutor's Office of the Russian Federation has 5 multilateral and 80 bilateral interdepartmental agreements and other cooperation arrangements with partners from 66 foreign countries. Over the past 5 years, 28 such agreements have been signed.
Since 2007, on the basis of agreements with the competent authorities of foreign states, cooperation programs have been developed and signed. The programs are accepted for 1-2 years and provide for the exchange of experience and the establishment of practical interaction on current issues of mutual interest. During this time, 48 programs were signed with partners from 28 foreign countries, 40 cooperation programs were implemented, and more than 130 planned events were held: consultations, meetings, seminars and round tables.
Currently, 7 programs of interdepartmental cooperation are being implemented: with the prosecutor’s office or justice authorities of Abkhazia, Armenia, Bahrain, Hungary, China, Cuba, Finland.
The Russian Prosecutor General's Office has developed especially close relations with their Belarusian colleagues. On May 15, 2008, the Joint Board of the Prosecutor General's Office of the Russian Federation and the Prosecutor General's Office of the Republic of Belarus was created, which coordinates the activities of the prosecutor's offices of the two countries in the areas of ensuring law and order, protecting human and civil rights and freedoms, and combating crime.
Representatives of the Prosecutor General's Office of the Russian Federation participate in the activities of various international bodies and organizations, including the relevant structures of the UN, Interpol, CIS, Council of Europe, Shanghai Cooperation Organization (SCO), as well as the Council of the Baltic Sea States.
For example, representatives of the Prosecutor General's Office of the Russian Federation are included in the delegations of the Russian Federation participating in the work of the UN Commission on Narcotic Drugs and the UN Commission on Crime Prevention and Criminal Justice, as well as in international events held within the framework of the UN Convention against Corruption. The participation of Russian prosecutors in events organized by the UN Office on Drugs and Crime, the Counter-Terrorism Committee of the UN Security Council, as well as in conferences of parties to the UN Convention against Transnational Organized Crime is ensured.
At the meeting of the Prosecutor General of the Russian Federation, Yu.Ya. Chaika. with the Secretary General of Interpol, Mr. Yu. Shtok, on June 22, 2017 in Moscow, issues of organizing an effective search through Interpol channels for persons accused of committing crimes in Russia were discussed.
Interaction between the Prosecutor's Office of the Russian Federation in the areas of ensuring the rule of law, protecting human rights and freedoms, and fighting crime with partners from the CIS countries is carried out within the framework of the Coordination Council of Prosecutors General of the CIS Member States (CCGP).
Since the creation of the KSGP in December 1995, its chairman has always been the Prosecutor General of the Russian Federation. The Scientific and Methodological Center of the KSGP operates on the basis of the Academy of the Prosecutor General's Office of the Russian Federation.
The most important issues are raised at the annual meetings of the KSGP. In particular, information is traditionally heard on the state of protection of the rights of citizens, especially those living outside their state in the territories of the CIS member states, as well as on the practice of implementing interstate programs and international treaties of the CIS member states in the field of combating crime. Information is exchanged on best practices in prosecutorial activities in various areas.
The 27th meeting of the KSGP will be held in St. Petersburg in November 2017. Previously, meetings of the KSGP were held in Russia 8 times, including in Moscow on September 5, 2010 and St. Petersburg on May 15, 2012.
The 15th meeting of the prosecutors general of the SCO member states will be timed to coincide with the 27th meeting of the KSGP. The decision to create a mechanism for regular meetings of the prosecutors general of the SCO member states was made during the meeting of the prosecutors general of the member states of the Organization held on October 31 - November 2, 2002 in Shanghai (PRC).
Over the 15 years of existence of this format of cooperation, many decisions have been made that have contributed to improving prosecutorial cooperation within the SCO, primarily anti-terrorism, consolidating the efforts of prosecutors’ offices in the fight against organized forms of crime, as well as in protecting human rights and freedoms. In Russia, meetings of the prosecutors general of the SCO member states were held twice (Moscow, November 24, 2005 and April 13, 2009).
The issue of the growing role of prosecutors in the fight against terrorism was discussed at the 14th meeting of the prosecutors general of the SCO member states (People's Republic of China, Sanya, November 30, 2016).
In September 2017, the third meeting of the Interstate Anti-Corruption Council (Interstate Council) will be held in Russia (Kazan), the agreement on the creation of which was adopted at a meeting of the Council of Heads of State of the CIS on September 25, 2013. In accordance with the Decree of the President of the Russian Federation dated 21 February 2014 No. 104 The Prosecutor General of the Russian Federation is a member of the Interstate Council from Russia.
Cooperation between the prosecutor's offices of the states that are members of the international association BRICS (Brazil, India, Russia, China, South Africa) is being strengthened. The General Prosecutor's Office of the Russian Federation organized the first meeting of the heads of prosecutorial services of the BRICS states (Sochi, November 10, 2015), the participants of which agreed to establish prosecutorial cooperation in the association, primarily in order to prevent international terrorism, counter the global drug threat and corruption, as well as approved the Concept of Cooperation between the Prosecutor's Offices of the BRICS States.
The second meeting of the heads of prosecutorial services of the BRICS states took place on December 1, 2016 in Sanya (Hainan Province, China). During this event, issues of cooperation in the fight against corruption were discussed.
Representatives of the Prosecutor General's Office of the Russian Federation also participated in meetings of senior BRICS officials on issues of anti-corruption cooperation (St. Petersburg, November 1, 2015; London, June 9–10, 2016), during which the functioning of the BRICS Anti-Corruption Working Group was discussed. And also took part in meetings of this group (Beijing, January 26-27, 2016, Berlin, January 22-26, 2017, Brasilia, March 14, 2017) In 2017, the main agenda items of the BRICS Anti-Corruption Working Group are Issues related to the growing issue of the return of assets obtained as a result of acts of corruption.
At the third meeting of the heads of prosecutorial services of the BRICS states, scheduled to be held in Brasilia from August 23 to 24 this year, it is expected to discuss issues of combating cybercrime and crimes against the environment.
Representatives of the General Prosecutor's Office of the Russian Federation actively participate in the work of the Advisory Council of European Prosecutors (ACEP), created in 2005, which is an advisory body of the Committee of Ministers of the Council of Europe - the main body of this organization uniting 47 states of the old continent. The CCEP adopted 11 opinions on various aspects of prosecutorial activity, in the development of which Russian prosecutors actively participated.
For example, on the Russian initiative, in October 2008, CCEP Conclusion No. 3 “On the role of the prosecutor’s office outside the criminal legal sphere” was adopted. The basis for the preparation of the CCEP conclusion No. 3 was the final document of the Conference of Prosecutors General of European Countries, held on this topic by the Prosecutor General's Office of the Russian Federation jointly with the Council of Europe on July 1–3, 2008 in St. Petersburg. During this conference, the experience of the Russian prosecutor's office in protecting human rights and freedoms and public interests outside the criminal legal sphere was highly appreciated by foreign colleagues.
As a follow-up to CCEP Conclusion No. 3, in September 2012, with the active participation of representatives of the General Prosecutor’s Office of the Russian Federation, a recommendation of the Committee of Ministers of the Council of Europe (2012)11 to member states on the role of prosecutors outside the criminal justice system was adopted.
The Academy of the Prosecutor General's Office of the Russian Federation is a member of the Lisbon network created within the Council of Europe for the exchange of information on the training of prosecutors and judges.
Delegations of the Prosecutor General's Office of the Russian Federation take an active part in meetings of the prosecutors general of the member states of the Council of the Baltic Sea States. In September 2017, the 17th meeting of the prosecutors general of the member states of the Council of the Baltic Sea States is planned to be held in Kaliningrad.
The Russian prosecutor's office has high international authority, as evidenced by the fact that its representatives are elected to the governing and working bodies of a number of authoritative international organizations, incl. Council of Europe, International Association of Prosecutors and International Association of Anti-Corruption Bodies.
In 2011, the Deputy Head of the Department for Supervision of the Implementation of Anti-Corruption Legislation of the Prosecutor General's Office of the Russian Federation joined the bureau of the Group of States against Corruption (GRECO). Since November 2013, the heads of this department have been elected to the Executive Committee of the International Association of Anti-Corruption Bodies, created in 2006.
In November 2016, at the 85th session of the Interpol General Assembly, a representative of the Prosecutor General's Office of the Russian Federation, based on the results of a secret ballot, was elected as a member of the Commission for the control of Interpol files and the procedure for interaction through Interpol channels in the field of international search for persons.
Close relations link the Prosecutor General's Office of the Russian Federation with such a non-governmental organization as the International Association of Prosecutors (IAP). The Russian prosecutor's office was among the initiators of its creation in 1995.
The Association has more than 2,200 individual members and 170 organizational members (prosecuting services, national prosecutors' associations and a number of crime-fighting bodies). Thus, MAP represents almost 250 thousand prosecutors from 173 jurisdictions.
Prosecutor General of the Russian Federation Yu.Ya. Chaika is a member of the MAP Senate. Representatives of the Prosecutor General's Office of the Russian Federation also take an active part in the work of the Association's Executive Committee.
In particular, the General Prosecutor's Office of the Russian Federation was awarded the right to host the 18th Annual Conference of the MAP, which was held in Moscow in September 2013 and was dedicated to the topic “The Prosecutor and the Rule of Law.” It was attended by 115 delegations from more than 90 states and 16 international bodies and organizations, including 52 prosecutors general and directors of national public prosecution services.
In November 2015, the 7th regional IAP conference for the states of Central and Eastern Europe and Central Asia was held in Sochi, dedicated to the fight against terrorism and violent extremism. It brought together more than 150 representatives of prosecutors from 34 states and 9 international bodies and organizations, including the UN, Council of Europe, OSCE, CIS, SCO and Eurojust.
The strengthening of ties with the competent authorities of foreign states was greatly facilitated by efforts aimed at developing interdepartmental cooperation with foreign partners.
In addition to concluding cooperation agreements and programs, the General Prosecutor's Office of the Russian Federation organizes events of a multilateral international nature, during which the most pressing issues of international prosecutorial cooperation are discussed. In particular, on September 13, 2010, in Moscow, on the initiative of the Prosecutor General's Office of the Russian Federation, the first meeting was held of the heads of the prosecutor's offices of the CIS member states, whose competence includes issues of extradition and legal assistance in criminal cases.
In April 2011, an international conference was held in Pskov on the topic “Combating illicit drug trafficking, including synthetic drugs and their precursors. The effectiveness of international cooperation in this area.”
Issues of cooperation in the field of combating illicit drug trafficking and combating illegal migration were considered at an international conference organized by the Prosecutor General's Office of the Russian Federation and held in Yekaterinburg on August 28–29, 2012.
In Vladivostok, on September 23–25, 2014, an international seminar was held with representatives of the competent authorities of a number of countries in East and South-East Asia on the issues of increasing the efficiency of cooperation in the field of criminal proceedings.
The Baikal International Conference of Prosecutors, held by the General Prosecutor's Office of the Russian Federation in Irkutsk on August 26–27, 2014, was devoted to the topic of cooperation in combating transnational organized crime.
On December 14, 2016, in Moscow, with the participation of representatives of competent authorities of foreign states and a number of organizations of the international prosecutorial community, the Prosecutor General's Office of the Russian Federation held the Third Open Information Forum on international legal cooperation.
Representatives of the international prosecutorial community participated in the ceremonial events on the occasion of the 290th anniversary, as well as the 295th anniversary of the Russian prosecutor’s office in January 2017. The latest anniversary events were attended by representatives of prosecutorial and justice authorities from 18 states, as well as the leaders of the International Association of Prosecutors and the Executive Secretary of the KSGP .
The most important tasks of the Russian prosecutor's office for the near future are to expand and increase the efficiency of its participation in international legal cooperation, especially in the field of criminal proceedings, to improve the contractual and legislative framework, including on the issues of search, arrest, confiscation and return of property received from abroad criminally.
Main Directorate of International
legal cooperation, July 2017
Myasnyankin V.N., lawyer at the Kursk Region Bar Association, member of the Russian Association of International Law.
The direct application by Russian government bodies of norms created within the framework of international organizations is possible due to Part 4 of Article 15 of the Constitution of the Russian Federation, which has included international law in the legal system of our country. To determine the rules that can be applied, it is necessary to involve some provisions of international law.
Acts of international organizations may have a rule-making nature in the case and to the extent as provided for in the constituent documents of these structures. There are mainly three ways of forming international obligations for member states in the activities of international organizations:
- decisions of certain bodies of an international organization, the legal binding of which for member states is recorded in the constituent documents, such as, for example, decisions of the UN Security Council on substantive issues provided for by the Charter of the United Nations;
- conventions developed within an international organization; obligations under them are recognized by states in the same way as under any other treaties; the application of the norms of such conventions in the Russian legal system does not differ from the application of the norms of other international treaties<*>;
- recommendations that are usually non-binding; but there may be cases where member states have agreed to make recommendations binding.
The widely used expression “convention adopted by an international organization” means that a particular convention was developed using the machinery of the relevant international organization.
Let's take the WHO as an example. Within the framework of the World Health Organization, the authority to adopt conventions and other international agreements on all issues within the competence of WHO is vested in the World Health Assembly, the highest body of WHO. The Assembly includes all member states of WHO, so we can say that in this case the Assembly acts in exactly the same way as an international conference.
In accordance with the WHO Constitution, at least 2/3 of the Assembly's votes are required to adopt an agreement. If the vote took place, this means that the Assembly approved the text of the agreement being discussed. Approval of the text of an agreement does not make it legally binding. Each WHO Member State must carry out the ratification or approval procedure in accordance with its own legislation<*>.
<*>Karkishchenko E.I. Rulemaking activities of the World Health Organization // Moscow Journal of International Law. 2004. N 1. P. 76 - 84.
Acts adopted by individual bodies of an international organization have different names, and in the process of their development there is great specificity in each organization. These acts can be different in their functions: they can be a source of law, an act of interpretation of law and a law enforcement act. In the development of such acts, not only international law, which is applicable, of course, to relations between member states of the organization, but also the internal law of each individual organization is of great importance. At the same time, certain customs of accepting recommendations are already clearly emerging. Thus, in the activities of international organizations, the so-called practice of “tacit consent” with recommendations or regulations adopted by the bodies of specialized UN agencies (the already mentioned World Health Organization, the International Civil Aviation Organization, the World Meteorological Organization and others) is increasingly spreading. Let us consider this method of lawmaking using the example of WHO. According to the Charter, its Assembly is empowered to adopt regulations in the field of international health concerning:
- sanitary, quarantine and other measures aimed at preventing the spread of diseases beyond the national borders of any state;
- nomenclature of diseases, causes of mortality and standards of public hygiene;
- standards of diagnostic methods used internationally;
- regulations governing the safety, purity and potency of biological, pharmaceutical and similar products traded internationally;
- standards in the field of advertising of biological, pharmaceutical and similar products in international circulation.
States that do not agree with the regulation must, within a specified period (from 3 to 9 months), declare their refusal to accept the regulation or make reservations to it. This procedure, as we see, differs from the usual practice of accepting international obligations, according to which a state assumes an obligation under an international treaty only after positively expressed consent by signing or ratifying this treaty<*>. The regulations come into force and acquire the character of normative documents for all states, with the exception of those that have declared their refusal to accept the regulations.
<*>See: Zaitseva O.G. International organizations: decision making. M., 1989.
There is specificity in the application of acts adopted by United Nations bodies. Russia has developed the practice of issuing acts dedicated to the implementation of decisions of the UN Security Council, which, according to the UN Charter, are binding. Such acts introduce serious changes to the law of the country, for example, prohibiting any economic ties with a state subject to Council sanctions, despite the fact that these ties were legally formalized in accordance with the law of the Russian Federation. In some cases, the acts of the state were government decrees, in others - decrees or orders of the President. In these cases, it is possible to change the norms of domestic law without ratifying the relevant documents.
A contradiction between a law and a Security Council resolution adopted by the Federal Assembly may serve as grounds for its rejection by the President. In September 1995, the President of the Russian Federation rejected the law to terminate the participation of the Russian Federation in the implementation of international sanctions against Yugoslavia. As a basis, the President pointed to the law’s contradiction to international law. A similar situation occurred in the United States in connection with the Congressional initiative to lift the arms embargo on Muslims in the former Yugoslavia. UN Security Council resolutions on the lifting of sanctions are implemented in the same manner.
When making its decisions, the Constitutional Court of the Russian Federation often also relies on resolutions of the UN General Assembly and some of its other bodies that are not binding. O.I. Tiunov believes that the use of such acts is not an end in itself. Recommendatory resolutions of international organizations, especially on the protection of human rights, contain provisions related to models of behavior based on the practice of many states that coincide in their parameters. To a certain extent, they generalize the approaches of these states to resolving issues of a general humanitarian nature and contain guidelines that could be useful for other states. In essence, advisory resolutions accumulate the experience of states in one or another area of their activities, contain provisions that are more specific in nature, and new approaches in comparison with the provisions of existing international legal norms, reflect the legal consciousness of mankind and ultimately serve as an incentive for states to their work for the codification and progressive development of international law.
A slightly different use of the UN General Assembly resolution is noted in the practice of the Supreme Court of the Russian Federation. When reviewing a case concerning the observance of the rights of heirs of repressed persons, the Court used the declarations of the General Assembly to clarify the concept of “a person entitled to compensation,” but took the Russian Federation Law “On the Rehabilitation of Victims of Political Repression” as the legal basis for its decision.
In some cases, the binding nature of decisions taken by international organizations is reinforced by the presence of control mechanisms. Such mechanisms operating in the field of human rights protection are widely known.
Russia's relations with such an important organization as the International Labor Organization are also of significant interest. A special feature of this organization is the presence of a control mechanism, the foundations of which are laid down in the Charter (adopted in 1919), so that each ILO member state recognizes the obligation to monitor compliance with obligations under the conventions and recommendations developed within the framework of this organization. The difference between the two categories of instruments adopted by the International Labor Organization - conventions and recommendations - is that conventions are ratified by member states and become binding, while recommendations remain recommendations.
The main means of control within the ILO are state reports. The reporting procedure is based on the right of the Organization to request reports from Member States and on the obligation of those States to submit them within the appropriate time frame and in the proper form. It follows from the ILO Constitution that member states are required to submit reports on ratified conventions, non-ratified conventions and recommendations. Thus, the governing bodies of the Organization control not only the implementation of ratified conventions, but also the progress of work on unratified conventions and even the consideration of recommendations.
With regard to ratified conventions, each Member undertakes to submit annual reports to the International Labor Office (ILO secretariat) regarding the measures taken to implement the conventions to which it has acceded. The content of the report is determined by the ILO Governing Body (the executive body of the ILO). For unratified conventions, member states submit reports on the state of national legislation and existing practice to which the unratified convention is concerned, as well as on what measures have been taken or planned to implement the provisions of the convention, and on the circumstances preventing ratification.
Member States are also required to report to the Director-General of the International Labor Office on the state of national legislation and existing practice regarding the issues addressed by a recommendation; about what measures have been taken or planned to implement the provisions of the recommendation, as well as about the changes that need to be made to the recommendation for its application. True, in practice the Organization rarely resorts to this procedure, concentrating mainly on the reports of states under the conventions<*>.
<*>See: Glikman O.V. Mechanism for monitoring compliance with the obligations of member states of the International Labor Organization (ILO) // International Lawyer. 2003. N 4. P. 52.
There are no penalties for failure to comply with certain documents; the whole matter is limited to discussion. However, Member States are closely monitoring the implementation of their respective obligations. Thus, the practice of the International Labor Organization shows that Russian government bodies have the right to apply the rules contained in unratified conventions and are obliged to apply the provisions of ratified conventions. International obligations may also arise before the signing of the founding treaty of an international organization when a state intends to join it. International organizations have a generally recognized right to impose certain criteria on member states. Therefore, the state often assumes obligations to take certain measures in order to achieve compliance for entry into the organization. Thus, although formally and legally the founding treaty of an international organization is not valid for a candidate state for accession, it gives rise to obligations for this state. A very good illustration of this is the relationship between the Russian Federation and the Council of Europe. After Russia submitted its application to join the Council of Europe, the Parliamentary Assembly of the Council of Europe (PACE) adopted Conclusion No. 193 (1996) on January 25, 1996. The Conclusion listed the main obligations, compliance with which was a criterion for the readiness of the Russian Federation to become a full member of this organization and continue membership in the future.<*>. Some obligations were primarily political and determined by the specific situation (withdrawal of the 14th Army from Moldova, ending the first Chechen war, etc.). At the same time, most of the recommendations were of a legal nature and related to specific measures to bring Russian legislation and law enforcement practice into line with European standards.
<*>See: On Russia's fulfillment of obligations assumed upon joining the Council of Europe. Special report of the Commissioner for Human Rights in the Russian Federation. M., 2002.
The provisions of Conclusion No. 193 are generally advisory in nature. However, the Conclusion itself is, in fact, an annex to the legally binding Resolution of the Committee of Ministers of the Council of Europe (96)2 of February 8, 1996, inviting Russia to become members of the organization. In addition, back in February 1995, in a special Message to the Council of Europe, signed by the President of the Russian Federation B.N. Yeltsin, Chairman of the Government V.S. Chernomyrdin and the heads of the chambers of the Federal Assembly at that time, V.F. Shumeiko and I.P. Rybkin, contained a promise to improve Russian legislation and bring it into line with European standards. The annex to the Message entitled “Explanations for the drafting and plans for improving the legal order in Russia” presented an analysis and plans for improving Russian legislation and law enforcement practice. The main idea of the Message and its annex was that Russia made an unambiguous promise to implement the recommendations that would be formulated by the Council of Europe. From a legal point of view, this was a unilateral act of a state that voluntarily assumed international obligations, and retained this character until February 28, 1996, that is, until Russia became a member of the Council of Europe.
Russia had to fulfill a significant part of the requirements of the Council of Europe within a year after joining this organization. In particular, it was necessary to ratify the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (No. 1, 2, 4, 7, 9, 10 and 11), as well as a number of other European conventions; carry out reform of the prosecutor's office; adopt a law on the Commissioner for Human Rights; make changes to the laws on national minorities, on fundamental political freedoms, on freedom of religion; improve the conditions of detention of prisoners in prisons and transfer penitentiary institutions to the competence of the Ministry of Justice of the Russian Federation; introduce a moratorium on the execution of death sentences from the date of joining the Council of Europe and, within three years, abolish the death penalty by ratifying Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms; lift all bans on free movement and choice of place of residence; recognize in law the right of citizens to individually appeal to the supervisory bodies of the Council of Europe and the compulsory jurisdiction of the European Court of Human Rights.
Recently, there has been a significant expansion of the forms of participation of international organizations in international rule-making.
A new method of creating norms has become actively widespread in the MP - by adopting acts of international bodies and organizations. As G.I. Tunkin noted, “along with the contractual and ordinary processes of formation of norms of international law, there is currently the formation of international legal norms through the adoption by international organizations of normative resolutions legally binding on states.” “Resolutions of an international organization are a new method of creating norms of international law, a new source of international law.”
It must be said that the legal force of acts of bodies of international organizations is determined by their constituent documents. According to the charters of most international organizations, the decisions of their bodies are advisory in nature. However, two groups of acts containing international law can be distinguished. Among them:
a) resolutions establishing mandatory rules for the bodies of a given organization (regulations of bodies, resolutions on the formation of the organization’s budget, rules governing the functioning of this organization, etc.). These international norms form part of the internal law of the organization.
As an example, we can cite EEC Council Regulation No. 3955/92 of December 21, 1992. The Regulation not only approves the Agreement establishing the International Center for Science and Technology between the USA, Japan, the Russian Federation and the European Atomic Energy Community and the European Economic Community acting jointly, but and the responsibilities of the EU Council, the European Commission and other EU institutions.
The Rules of the Economic Court of the CIS, approved by the Resolution of the Plenum of the Economic Court on July 10, 1997, determine the procedure for the procedural activities of the Court when considering disputes and requests for interpretation within its competence.
b) acts that become legally binding by virtue of the norms of international treaties (regulations and directives of the European Commission, Council of the EU, ICAO, IMO standards, etc.) and / or domestic legislation.
According to Art. 37 of the Convention on International Civil Aviation, 1944, the International Civil Aviation Organization adopts and, as necessary, modifies from time to time international standards, recommended practices and procedures relating to: communications systems and air navigation facilities, including ground markings; characteristics of airports and landing sites; flight rules and air traffic control practices; and such other matters relating to the safety, regularity and efficiency of air navigation.
In particular, Order of the Russian Aviation and Space Agency dated August 15, 2003 No. 165 “On approval of the federal aviation rules “Organization of the work of medical personnel of experimental aviation organizations” states that “when sent to work in foreign countries, an experimental aviation aircraft must be equipped with medical supplies in accordance with ICAO recommendations."
According to Art. 15 of the Convention on the International Maritime Organization, the IMO Assembly makes recommendations to the Members of the Organization regarding the adoption of rules and guidelines relating to maritime safety and the prevention and control of marine pollution from ships, as well as other matters relating to the impact of shipping on the marine environment, which are entrusted to the Organization international instruments or in accordance with them, or amendments to such rules and guidelines which have been transmitted to it;
Resolution A.741(18) of the International Maritime Organization approved the International Code for the Management of the Safe Operation of Ships and Pollution Prevention of 1993, mandatory for both IMO member states (including Russia) and for ship owners, managers and charterers.
The Decree of the Government of the Russian Federation, which approved the Regulations on the federal system for the protection of maritime navigation from illegal acts directed against the safety of navigation, dated April 11, 2000, provides that “information about each illegal act directed against the safety of navigation is submitted by the Ministry of Transport of the Russian Federation to the International Maritime Organization (IMO) in accordance with the procedures established by that organization."
According to Art. 22 of the Constitution of WHO, rules adopted by the Health Assembly of WHO become binding on all Members after due notification of their acceptance by the Health Assembly has been given, with the exception of those Members of the Organization who notify the Director-General within the period specified in the notification of their rejection or reservations in regarding them.
The norms confirming the international legal nature of acts of some bodies of international organizations are also enshrined in foreign legislation. Yes, Art. 10 of the Portuguese Constitution states: “the rules emanating from the competent bodies of the international organizations of which Portugal is a member apply directly to domestic law, as established in the relevant constituent treaties.” The provisions on this are contained in Art. 23 Austrian Constitution, art. 29 of the Irish Constitution, Chapter 10 of the Swedish Constitution and other documents.
In addition to automatic implementation, the Russian Federation also uses a “one-time” method of acts of an international organization.
For example, in 1995, the Decree of the Government of the Russian Federation was adopted “On measures to implement the documents of the Organization for Security and Cooperation in Europe” “Vienna Document of 1994 negotiations on confidence- and security-building measures”, “Global exchange of military information”, “Code of conduct regarding military-political aspects of security" and "Decision on the principles governing non-proliferation".
The decision of the State Customs Committee of the Russian Federation dated December 7, 2000 No. GKPI 99-881 indicates that the “Unified Methodology of Customs Statistics of Foreign Trade of Member States of the Commonwealth of Independent States” is mandatory for customs authorities (approved by a decision of the Council of Heads of Government of the CIS on December 9, 1994).
According to Order of the Ministry of Transport of the Russian Federation dated November 1, 2002 No. 138, the minimum crew composition of self-propelled transport vessels is approved in accordance with IMO resolution A. 890 (21).
Thus, in the process of creating normative acts of international organizations, two stages of creating international legal norms can be distinguished: establishing a rule of conduct and giving the agreed rule legal force as an international legal norm.
