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In detail...

The Constitution of the

 Republic of Belarus and the International Law

           

Long domination in the USSR of the class approach to understanding of a role of international law  led to a wide divergence of international legal standards with standards of the national legislation. The process of constitutional transformations in Byelorussia allowed to reconsider a position of the new sovereign country in a question of correspondence between the international and national law.

The constitution of Byelorussia accepted during the Decade of International Law of the United Nations Organization is designed by viewing the necessity to provide an active participation of Byelorussia in affairs of the international community, to promote reorganization of this activity according to democratic principles. It defines the character of the constitutional principles and  standards concerning the international law.

The position of Byelorussia is written in article 8, part 1: «Byelorussia recognizes a priority of the conventional principles of the international law and provides conformity  of the legislations to them». This position for the first time in our history has determined the character of interrelation of the conventional principles of the international law and the national law.

It is traditionally considered that the most important standards of the general international law concern the international relationships but in the national law their role is only symbolic.   However, that is not absolutely so. Becoming a part of the legal system of the country these standards of the general international law are called to determine overall aims and principles of its foreign policy.  The constitutional law of various countries in which the purposes corresponding to the international law and principles of foreign policy find more and more essential reflection favors such a statement.

Article 18 of the Main law of Byelorussia points out to application in the foreign policy of the conventional principles and standards of the international law listing some of them (equality of the countries, non-use of force or threat by force, indestructibility of borders, peace settlement of disputes, non-interference into internal affairs). It is necessary to note also the special status of the international standards about the rights and freedoms of the people. According to the Constitution « the state guarantees rights and freedoms to citizens of Byelorussia, fixed in the Constitution and laws stipulated by the international obligations of states « (article 21).

Thus, the aspiration of Byelorussia to create a democratic lawful country respecting coordinated will and interests of the world community, asserting fundamental laws and freedoms of the people was confirmed once more in the Constitution. The constitutional instruction of necessity of conformity of the national legislation to the conventional principles of the international law determined a vector of development of all legal systems of Byelorussia.

Unresolved within the frame of the Constitution there was a question on how standards of the international law operate in case of occurrence of collisions or when the given question is not settled by the national legislation. The right of national courts to apply international legal standards while realizing justice has not been stipulated by the Constitution (see article 112). Absence of unity in concepts and views on definition of  the concept of  « the conventional principles of the international law « brought not only to difficulties in an estimation of conformity of the national legislation to the conventional principles of the international law but also to various understanding of a parity of the international and national law of Byelorussia.

Article 15 of the Law «On the international contracts» supplemented the constitutional provisions having proclaimed the conventional principles of the international law and standards of the international contracts of Byelorussia which were in force due to legislation partially functioning within the republic. This provision is the certificate of deeper penetration of international legal standards in our legal system.

It brought us to a conclusion that the legal base for direct action of standards of the international law was created in Byelorussia.

Unfortunately, obscure within the frame of the Constitution and the Law «On the international contracts» there was a question about legal consequences of  recognition of the international contract as a source of law. The international contracts of Byelorussia «have valid of those legal acts by which the consent of Byelorussia to compulsion the corresponding international contract is expressed» (part 3 of article 15 of the specified Law, article 20 of the Law «On normative legal acts»). Similar positions are contained in the Civil Code (article 6), the law on the land ( article 161), the Bank Code (article 3). In the constitutional legislation of Byelorussia (with some rare exception – code of civil procedure, the Investment Code, the Code of trading navigation)  the direct indication of priorities of  those acts in case of the contradiction between the contract and the law (especially when the last have identical object of regulation) is absent. 

The rule of " the act that was accepted later " in case of presence of the international contract and the subsequent law with an identical object of  regulation applied in judiciary practice of  separate counties (USA, Germany) will hardly guarantee the performance by the county of its international obligations.  

Certainly, a problem of a place of standards of the international law in the legal system of the republic is not the only question which must be solved. The question of its effective application in the national law and order is also very important. We believe that for the beginning it is meaningful to define a circle of standards of the international law which can be applied directly and also explained and recommended to courts and law enforcement bodies as it has been done, for example, in Germany and in the Russian Federation.

It is not enough to pass even the fairest laws in order for the potential incorporated in the Constitution to prove itself. It is necessary to raise a new level of international legal consciousness in our society and first of all for those who are directly working with law.

Zybailo A.I.,

Candidate of Jurisprudence,

Assistant Professor of the Chair of the International Law of the Belarus State Economic University




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