Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

Abstract

INTRODUCTION.This publication follows up the well-aimed discussion recently initiated by the journal in 2017-2019 [Abashidze, 2017; Nefedov, 2019] and to a certain extent continued in 2020 [Vylegzhanin, Potier, Torkunova, 2020], regarding one of the "pillar problems" for the legal theory pertaining to international law, which concerns its ‘principles’.The subject-matter of the study is determined by a number of circumstances that are atypical for any field of any science, when there is a variety of terms differed not only in name, but also in content, which relate to the cornerstones of relevant field or section of a particular branch of knowledge. As far as the international law science, this situation has been due to the availability of a wide range of different designations concerning its principles, and resulting the need to thoroughly peruse the same. Due to the above, genesis, historical evolution, nature, functional destination and role of the principles in the theory and practice of international law, including its basic principles as its normative grounds, which belong to the entire system of international law, should naturally be under thorough consideration. They seem to constitute the most sensibly weak point in the modern theory of international law due to obviously "multicolored" conceptual and terminological spectrum. It is important that the list of terms forwarded in relation to the principles is growing from day by day, and new ones are being added to the designations as "set-forth" to date. Thus, the afore-referred list encompassing "basic principles" and "generally recognized principles and norms of international law", "principles of general international law", "general principles of co-operation" (Article 11, para 1, of the UN Charter) in a particular field, as well as "general principles of law", "general principles of law recognized by civilized nations", etc., has recently been supplemented with "general legal principles", "basis principles" and "general principles of international law".The impressive range of the above concepts that are somehow found in the scholars’ writings and practice of international law frequently implicates the contradictory interpretations and unavoidable collisions in the course of conceiving the sense of and applying the norms, which accordingly require reducing ambiguities and therefore ensuring better regulation. To achieve the same, the only one thing may be effective – that is by way of revealing the fundamental properties of respective phenomena.Increase of negative assessment of current legal regulation of international relationships happening not only in literature, which the occurrences are quite frequent, evidences that the topics related to the principles of international law, are, firstly, not only fundamental issues to qualify the substantive component of the theory of international law, since it is directly n with the core matters of legal science that studies the captured system of law, but also stand as extremely acute point because of the continuous attacks on the effectiveness of international law as such (to the extent of complete denial of the same even in public statements made by official spokesmen of States), – secondly. Resultant from this, the growing skepticism about the effectiveness of principles gives raise mistrust in international law in whole. Therefore, the major steps required towards achieving the most important goal in the matter of raising high the credibility of the international law shall be deemed as follow: to conceive the essence of the concept of "principle"; identify and differentiate the phenomena corresponding to individual positions in the afore-referred list; construe the typology thereof, as well as reveal the relationship between some of them. A number of the said aspects are subject to be examined herein, while the rest of them should be given specifically a place within the scope of another publication.MATERIALS AND METHODS.The analysis undertaken in the article is based on normative and doctrinal materials that reflect the positive international law and law enforcement acts, other documents, including reports and research presentations of the UN International Law Commission, judicial decisions or advisory opinions of the International Court of Justice and other international judicial institutions, acts of international organizations, as well as the teachings of the most highly qualified publicists and practitioners in the field of international law and its history, which relate to the topic of this publication. The research enjoys both general and specific principles and methods of analysis: dialectical materialism, structural and system approaches, formal logics, deduction and induction, comparative law, historical and retrospective approach. The latter one is particularly fruitful for study of genesis and essence of the concept "principle of law", legal nature of principles in international law.RESEARCH RESULTS.The essay purports to reveal the essence of various designations construed on the basis of the element "principles", or similar phenomena in the aspect of international law. In the course of researchaiming the system-forming role of the basic principles of the IL and the comparative analysis thereof with jus cogens ("peremptory norms of general international law»,) the findings are that there is no reason for wide international practice to ignore the term and the concept of "basic principles" in cases when approaching to the concept of "peremptory norms of general international law" (jus cogens), since they do not substantially differ in a number of parameters. In both categories, sometimes it seems to appear a discrepancy or incomplete compliance with the criterion of "peremptory norms of general international law" (e.g. partial "opinio juris cogentis" / "non-derogability"), especially from formal-dogmatic stand, viz. with no comprehensive view on full legal scope of a rule of law. The totality of the theses put forward to solve the listed and other related problems on the basis of the approach laid down in the study from a theoretical point of view, as a whole, seems to form a new vector in legal theory, not only domestic, but also international, due to the lack of full-fledged, detailed research on the subject with such a discourse on a global scale.DISCUSSION AND CONCLUSIONS."Principles of international law", including the initial point, i.e. the concept of "basic principles", as well as a number of other notions connected with them, are subject to examination in the article, both as a phenomenon of positive international law and as a category of legal science (that one of international law). For Russian science of international law, the concept of "principles" / "basic principles of international law", securing the integrity and entirety of the IL system, performs the role of one of its major categories. The differences between "concept" and "category" in the tools of the theory of international law are determined by the postulates substantiated by philosophy. At the same time, in part of concepts and terminology, the international legal theory is characterized by a certain gap in the positions forwarded by domestic and Western jurisprudence. Conceptual approaches to the "principles" ("basic principles") and the resulting discrepancies in opinion quite radically differ, whereas to the term "principles" it is often attributed rather non-normative, ideological or teleological significance, while the functions of the norms having hierarchically superiority over other rules in international law, are allocated to the category of "peremptory norms of general international law (jus cogens)".