Logo BSU

Please use this identifier to cite or link to this item: http://elib.bsu.by/handle/123456789/30230
Title: Проблема прямого действия общепризнанного права о правах и свободах человека в Республике Беларусь
Other Titles: Direct Action Issues of the Universally Recognized Norms of International Law on Human Rights and Freedoms in the Republic of Belarus (Alla Zybailo)
Authors: Зыбайло, Алла Ивановна
Keywords: ЭБ БГУ::ОБЩЕСТВЕННЫЕ НАУКИ::Государство и право. Юридические науки
Issue Date: 1999
Citation: Белорусский журнал международного права и международных отношений. — 1999. — № 1
Abstract: "Direct Action Issues of the Universally Recognized Norms of International Law on Human Rights and Freedoms in the Republic of Belarus" The special status of universally recognized norms of the international law on human rights and freedoms in the Republic of Belarus is confirmed by Article 21 of its Constitution "the state guarantees individual rights and freedoms of the citizens of Belarus fixed in the Constitution laws and stipulated by the international obligations of the state". It can hardly be said on the basis of Article 8, that universally recognized norms on individual rights take priority over national legislation and are an integral part of the existing law of the republic. The Constitution of the Republic of Belarus in its Article 8 fixed the universally recognized principles (but not the norms) of international law. The law "On international treaties of the Republic of Belarus" of 1998 declares them to be a part of the existing law of the country. But even in this case the conclusion, that implementation of norms of international law in domestic legislation is made on the basis of the principles of monist concept, seems to be premature mostly due to the fact, that the recognition by a state of the priority of universally recognized principles of international law does not mean the recognition of the priority of international legal norms over the national ones. Principles of law manifest themselves through the law norms, "need to be given concrete expression, don't lead directly to the hypotheses and sanctions; which makes it difficult to judge about definite legal regulation control". That is why direct operation of the universally recognized principles of international law seems to be hardly possible due to their general nature. They are not really self-executing and this must be taken into consideration by legislators. As far as the universal norms of international law are concerned, the majority of them (especially the norms on human rights) have concrete contents and can be directly applied in the national legal system. For the application of a universally recognized norm by the court it is necessary to make sure it is recognized by the country of the court. The recognition of the priority of universally recognized (common) norms of international law had not been the intention of the legislator, but there are reasons to suppose that the universally recognized norms on human rights correspond to the level of the constitutional norms. The Republic of Belarus is a party to all basic universal international treaties in the sphere of human rights. According to the law "On international treaties of the Republic of Belarus" (Article 15), these treaties are a part of the current legislation in the republic. Although law does not declare the priority of ratified international treaties which have come into force over the normative acts of the Republic of Belarus of all levels, there are grounds to suppose that the international treaties ratified by the Republic of Belarus rank second to the Constitution in the hierarchy of normative acts. Branch legislation of the republic is based mostly on the recognition of the priority of international treaties' norms over national laws. However only the priority of application in a particular case is in question here. The priority of such an application is extended to the regulations of all international treaties of the Republic of Belarus which came into power (one would like to add: "and published in the prescribed manner"), because their regulations are declared to be a point of legislation of the Republic of Belarus and consequently are to be directly applied. But the law norms of the Republic of Belarus do not give evidence of the fact that Belarusian courts can apply the international norms on human rights in case of the lacunae in national legislation or in cases of collisions with the international treaty on human rights. Article 112 of the Constitution of the Republic of Belarus orders the courts to be guided by the Constitution and the normative acts adopted in accordance with it during law administration, i. e. the given constitutional norm actually "brings to naught" (for the judges) the regulation on direct appHowever, the constitutional norm on the rights and freedoms of the citizens of the Republic of Belarus does not hinder Belarusian courts to be guided by its international legal interpretation during the consideration of any particular case. The neglect of such an interpretation may lead to the violation of the pacta sunt servanda principle and will be confirmed by the international monitoring body. The court practice on this issue in our country is extremely insignificant and concentrates in the Supreme Court of the republic. This fact can be explained by the traditionally cautious attitude of judges towards international law. At first stage it is necessary to solve the issues of interpretation of all national laws with regard to the rights and freedoms of the citizens of Belarus (before the opportunity of introducing amendments to Article 112 of the Constitution arises). The effectiveness of international obligations assumed by the states and the effectiveness of internal legislation in the sphere of protection of human rights and freedoms can be provided only with the help of a regulated mechanism of interpretation and application of national laws. Ratification of international treaties of the Republic of Belarus is performed in the form of a law of the Republic of Belarus, i. e. a judge can apply directly that law in case of a juridical conflict with a treaty or a lacuna in national legislation. Ratification law does not prevail over other laws but it puts no obstacles for treaties to have actual privilege over national laws. This result is achieved through interpretation as it is supposed that the national legislation did not intend to create a situation for the violation of the state treaty obligations. Unfortunately, judges and other law enforcers in the Republic of Belarus are not ready yet for their new role of interpreters and enforcers of the international law norms.lication of all international norms.
Description: Раздел - "Международное право", рубрика - "Международное право и внутригосударственное право"
URI: http://elib.bsu.by/handle/123456789/30230
Appears in Collections:Белорусский журнал международного права и международных отношений. — 1999. — № 1

Files in This Item:
File Description SizeFormat 
1999_1_JILIR_zybailo_r.pdf724,97 kBAdobe PDFView/Open


PlumX

Items in DSpace are protected by copyright, with all rights reserved, unless otherwise indicated.