Implementation of international legal standards in the field of human rights in Russian legislation. International Fabric Rights Complex of International Legal Standards for Children
The fundamental international standard for the protection of children's rights is the United Nations Declaration of Child Rights of November 20, 1959 and the Convention on the Rights of the Child of November 20, 1989.
The adoption of the child's rights declaration was caused by the need to create universal recommendations, which rights and freedoms of children without the difference in races, gender, language and religion should be subject to universal respect and compliance. The declaration consists of the preamble and 10 principles proclaiming the basic rights and freedoms that should belong to children, such as:
protection against negligent, cruelty and operation and others.
right to the name and citizenship
for social security
on healthy growth and development,
for special care
for love and understanding
to receive education
The Child Rights Declaration was adopted to provide happy childhood children, and encourages parents, individuals, organizations, government agencies and states to recognize and try to abide by the rights and freedoms of children.
The Declaration of Rights of the Child is an international recommendation document and does not impose a commitment to the UN participants to implement the principles set out in the Declaration.
This flaw in 1989 eliminated the Convention on the Rights of the Child, which not only concretized the provisions of the Declaration (Part I of the Convention), but also provided for the creation of a mechanism for monitoring compliance with States of the provisions of the Convention (Part II of the Convention).
The Convention on the Rights of the Child consists of the preamble, III parts and 54 articles that take into account almost all moments associated with the life and position of the child in society.
According to the Convention, the child is every human being before reaching 18 years of age, if the national legislation has not yet established an earlier age of the achievement of majority. The Convention proclaims the priority of the interests of children to the needs of the state, society, religion, families. The need for special concerns of the state and society about socially vulnerable groups of children is especially allocated: orphans, disabled, refugees, offenders, etc.
The Convention covers a wide list of rights that can be grouped into three categories:
participation.
security,
Children have the right to ensure in the widest limits, starting with the name and citizenship and ending with health care and education. They have the right to defense against certain actions, for example, torture, operation, arbitrary deprivation of freedom and unreasonable deprivation of family care. Children also have the right to participate in decision-making relating to their lives and to participate in society.
The Convention is not so much a list of rights of the child, as a comprehensive list of obligations that states are willing to recognize in relation to the child. These obligations can be direct, such as providing opportunities for education or ensuring proper administration of juvenile justice, or indirect, giving parents, other family members or guardians to play their main roles and fulfill the duties of educators and defenders.
Fastening the basic rights of children, the Convention pursues three main objectives:
reaffirm the rights that have already been provided to people in the framework of other treaties. Some of these rights, such as torture, are quite obvious, also concerns children. Others, for example, the right to express opinion, freedom of assembly, freedom of religion and the right to social security, led to hot discussions during the preparation of a document regarding whether children should have such rights and if so, in what cases. It was very important to confirm again that they should have such rights, as well as the fact that children are also people;
strengthen some basic human rights in order to take into account the special needs and vulnerability of children. An obvious example is working conditions that should be easier for children and young people than for adults. Another example is the conditions under which children can be deprived of freedom;
set the rules in those areas that are particularly relevant for children. The Convention affects highly specific issues related to children, such as adoption procedures (adoption), access to primary education, protection against abuse and lack of care in the family, as well as the recovery of alimony.
The objectives of the Convention on the Rights of the Child are reflected in Figure 4 ( cm. Appendix A2).
The Convention contains three main innovations. First, it introduces the concept of "participation rights" for children and recognizes the importance of informing children themselves about their rights. Secondly, the Convention raises such issues that were never seen in international documents: the right of children affected by cruelty and exploitation, to rehabilitate and the obligation of governments to take steps for traditional practices harming children's health. Thirdly, it includes the principles and norms that previously appeared only in legally non-binding texts, and in particular issues related to adoption (adoption) and the administration of juvenile justice.
The Convention also introduces two important concepts having great importance:
"The best to ensure the interests of the child" (Art. 3) becomes a mandatory criterion for "all actions against children";
the principle, in accordance with which parents (or other persons responsible for the child) are obliged to properly manage and lead the child in their rights and do this in accordance with the developing abilities of the child to receive and implement these rights (Article 5).
As guidelines that are the basis for all rights, it is possible to allocate the following:
on preventing discrimination (Art. 2);
on the best interests of the child (Art. 3);
on the right to life, survival and development (Art. 6);
on respect for the views of the child (Art. 12).
Given the fact that the Convention is a ban on call and recruitment into armed forces and participation in the hostilities of children under the age of 15, the UN General Assembly on May 25, 2000 adopted the Optional Protocol to the Convention on the Rights of the Child on the participation of children in armed conflicts. The protocol provides that the states involved in it will ensure that persons who have not reached 18 years of age would not directly participate in hostilities and should not be binding on military service.
On 25 May 2000, the UN General Assembly also adopted the Optional Protocol to the Convention on the Rights of the Child regarding trafficking in children, child prostitution and child pornography.
The Republic of Belarus has ratified both the Convention on the Rights of the Child and the Optional Protocols to it ,.
The requirements of the Convention are subject to unconditional fulfillment by each state-signed. The UN Control Body in this area of \u200b\u200bthe Convention (Article 43) recognized the Committee for the Rights of the Child.
In addition to the above-mentioned documents of the United Nations, for the purpose of childhood protection, a number of other documents were adopted, such as:
Convention on Combating Discrimination in Education 1960,
Declaration on the protection of women and children in extraordinary circumstances and in the period of armed conflicts of 1974,
Declaration on social and legal principles related to the protection and well-being of children, especially when the transfer of children to education and their adoption at the national and international levels of 1986,
Minimum standard UN rules regarding the administration of juvenile justice (Peking Rules) and others.
International law
The role of international legal standards in regulating the interaction of international and national law
Tiunov Oleg Ivanovich,
head of the Department of International Public Law of Isis, Doctor
legal Sciences, Professor
Modern international law is a system of norms in the form of a complex legal complex that regulates not only interstate and other international relations, but also certain domestic relations. The scope of international law is expanding under the influence of the legal norms of many objective factors, including globalization of international life; internationalization of domestic norms and institutions; rapprochement of international law and a number of institutions of national law in connection with the regulation of the same type of public relations, the development of democratic principles of human rights and fundamental freedoms; Achievements of scientific and technological progress creating conditions for international legal regulation of new areas of cooperation. Objective factors should also include versatile international economic, economic and political integration; elimination of ideological confrontation in the international arena, marked the cessation of the Cold War; strengthening the impact of international intergovernmental organizations on the development of international law; awareness of humanity of its unity in solving global problems (for example, in the field of energy issues,
cookies by food, research of space and world ocean, combating international terrorism and corruption); Strengthening the impact of the international community of states in general on solving international problems.
One of the tasks of the international community of states - development positive Parties Globalization and opposition to its negative manifestations. Along with certain benefits, allowing to expand communication between peoples and states, globalization carries in themselves the threat of destruction in the social sphere, in some cases contributes to the introduction of the cult of force, manifestations of international terrorism, transnational crime, corruption. This is contrary to the interests of mankind. Globalization should develop within the framework of the principles and norms of international law and not to reject the democratic foundations of the national law of states. "Globalization without support for the right both within national states and international relations generates arbitrariness and violations of human rights recorded in international documents and constitutions and legislation of different countries" 1. In this regard, it is necessary that the activities of states are aimed at creating such conditions under which globalization developed, based on the effective implementation of equality, justice,
1 Human rights and the process of globalization of the modern world / d. ed. E. A. Lukasche -a. M., 2005. P. 7.
providing the interests of all countries and peoples, forming a multipolar world on the basis of domination of law2. This will ensure compliance with the interests of the international community of states in general. The possibilities of the effective functioning of international law that meets both the needs of globalization processes and the conditions for the immediate adaptation of these processes to the needs of international law4 are open. It should be noted that in the context of globalization, one of which is the action common principle - The principle of rule of law is also kept and developing generally accepted principles and norms of international law, laid out in the UN Charter and other international acts. Such principles include the imperative requirement of conscientious fulfillment of international obligations. Along with other imperative norms of international law, this principle occupies a higher position in the hierarchy of international law. Its content is associated with such provisions as the obligation to perform international legal obligations taken by the Parties; conscientiousness of their implementation; performance contractual obligationsarising from each existing agreement; the inadmissibility of an arbitrary one-sided refusal of obligations taken under the contract; legal
2 See: Dobrenkov V. I. Globalization and Russia. Social analysis. M., 2006. P. 406, 411.
3 See: Lukashuk I. I. Globalization, state, right. Xx! century. M., 2000. P. 174.
4 See: Kapustin A. Ya. International organizations in the globalized world. M., 2010. P. 86-87.
5 See: Tyunov O. I. Principle of Host
compliance with international compliance
clauses // International Law and National Legislation. M., 2009. P. 208-
substitution for violation of international obligations. These provisions are fundamental to the approval of international law and order and security in the world. In this domain problem issue It is determining the mechanism of coordination and power agencies of states related to ensuring the functioning of international law and the accounting of its generally accepted principles and norms. It seems that the adoption of organizational measures to implement the norms of international law should be associated with the increasing role of the national aspect of these norms. According to H. Har-Ta, there is a need to study the concepts and interests related to the right in their interaction6. From the point of view of I. I. Luka-Shuke, an important feature of the mechanism of action of the international community, the expansion of its impact on the national law and considerable increase in the role of national legal norms in the implementation of international legal norms. The internationalization process of international law is complemented by the process of its "Domestication", when an increasing number of international norms should obtain a final implementation in the field of national jurisdiction77. Thus, in a globalized world, the legal consolidation of state cooperation continues to evolve through the interaction of two norms of norms: international legal and national-legal. Globalization accelerates this interaction: it becomes more and more necessary for the adoption of such measures as the development of means of managing global processes, which is typical for modern international law and order.
6 See: HART H. L. A. The Concept of Law. 2nd ed. Oxford, 1994. P. 235-237.
7 See: Lukashuk I. I. International Law. Special part. M., 1997. P. 345-346.
The category "International Law and Order", on the one hand, may be a legal ideal phenomenon - a system of purely legal relations, and on the other - the actual phenomenon as the result of the implementation of the legal model. International law enforcement should be considered as the organizing beginning of the cooperation of states, in terms of the level of maintenance and implementation of which one can judge the effectiveness of international law. At the same time, the level of the implementation of international obligations taken by states allows us to evaluate the effectiveness of international law enforcement. The latter relies on international law, however, it is not identical to the meaningful and functional features. In the current period, the state of international law enforcement has the impact and norms of national law, for example, concerning human rights, protecting the environment, countering terrorism and corruption. However, such an impact is carried out through the impact of relevant national standards for international law, which is the basic basis of international law and order. V. G. Butke HIV noted that the state concluded an international treaty should make maximum efforts to fulfill the international obligations assumed. A system of effective measures to implement international legal instructions should be applied. Such a system of measures is implemented as part of the coordination of the norms of international and domestic law and "combines the interests of states in the consolidation of their system of national legality and strengthening
8 See: Tyunov O. I. The role of international law in ensuring legal order in the world community // International Law and National Legislation. M., 2009. P. 45-64.
international law enforcement "9 In this regard, the task of the progressive development of international law and its codification is retained, enshrined in the UN Charter (p. "A" Article 13). However, along with the process of codification process of a number of industries and institutions of international law, including in the field of international treaties, diplomatic law, the succession of states, maritime law, in the current period there is a slowdown in this process. For example, not yet codified in the form of a multilateral international treaty of the norm regarding the responsibility of states. Meanwhile, the lag in the field of codification and progressive development of international law is slowing down the solution to many problems of resolving international relations and strengthen world law enforcement. The official systematization of a number of current international legal norms is required, as well as their processing on the merits, with the exception of obsolete rules and eliminating contradictions between the norms of international law in areas such as the basic rights and obligations of states, the international legal recognition of states and governments, the International Fighting terrorism and corruption, legal standards in international technical regulation, international legal control, neutrality of states during the war, confidence-confidence measures between states, international security, implementation of international treaties, ensuring interstate integration processes, peaceful resolution of international disputes, monitoring international treaties, etc.
It is necessary to accelerate the process not only the codification of the norms in
9 Butkevich V. G. The ratio of domestic and international law. Kiev, 1981. P. 277-278.
temporary international law, but also their progressive development, i.e., not their processing, but the creation of completely new standards and rules, as it took the norms of international space law, district regime (bottom of the seas and oceans outside the jurisdiction of states).
Codifications and progressive development of international law can be facilitated by rules in the form of standards formed as a result of the practice of states in various fields of cooperation. Such standards are often recorded in the recommendatory resolutions of international organizations, for example, UN resolutions and its specialized agencies. However, standards as rules of behavior can be found in existing international treaties. Moreover, standards are formed both as international legal customs based on the relevant practice of states. The terms "International Legal Standards", "International Standards", "Council of Europe" standards are quite common in legal literature, but, unfortunately, the authors of publications are limited only by referring to these terms, without revealing their concepts and content. Meanwhile, the processes of globalization of legal space at the international level and the internationalization of international rules in domestic regulation are closely related to the category "International Legal Standards". For example, among the rules incorporated into the Russian legal system, there are those in their nature relate to international legal standards, acting as a kind of measurement of the rights applied in international and domestic levels. International legal standards, being part of the legal system of Russia, do not lose their
its international legal significance. At the same time, they affect the content of regulatory domestic regulation on the basis of legal acts of the competent authorities of the state. Thus, the order of the Ministry of Finance of Russia of November 25, 2011 No. 160n was put into effect on the territory of Russia international standards of financial statements and their clarification. This order was adopted on the basis of the provision of international financial statements and explanations of international financial reporting standards for use in the Russian Federation approved by the Decree of the Government of the Russian Federation of February 25, 2011 No. 107. International standards are also found in the field of regulating scientific and technical issues cooperation. Thus, the Charter of the International Telecommunication Union of 1992 provides for the functioning of a special body - the telecommunication standardization sector in the field of broad study of technical, operational and tariff issues and the adoption of recommendations on them with the subsequent implementation of these recommendations in the form of standards in the national practice of states. International standards as rules and procedures are provided for by the Convention on International Civil Aviation of 1944. One of the species of standards is set forth in the form of principles of certain rules and concepts, the implementation of which in the practice of state contributes to a uniform solution to cooperation issues. These are the principles on the remote sensing of the Earth from the space, set out in the UN General Assembly resolution 41/65 of December 3, 1986
The implementation of international standards can be facilitated by model acts adopted by states based on international
contract. Similar acts Contain rules to be unified in certain areas the legislation of the states involved in such a contract. An example is the contract of March 29, 1996, between the Russian Federation, the Republic of Belarus, the Republic of Kazakhstan and the Kyrgyz Republic on the deepening of integration in the economic and humanitarian fields, the purpose of which, in particular, is the adoption of model acts that contribute to the harmonization of legislation.
International standards play a huge role in the protection of human rights. Based on the fact that the fulfillment of obligations to promote universal respect, compliance and protecting human rights and fundamental freedoms in accordance with the UN Charter and other agreements is the sacred debt of all states, in the Vienna Declaration and Program of Action in 1993, indicates the primary importance of compliance with standards in the field of Human rights. In the Declaration on measures to eliminate international terrorism of 1994, compliance with international human rights standards belongs to the fundamental conditions for the eradication of terrorism.
The principal provisions of international human rights standards are reflected in many international acts, including in the International Covenant on Economic, Social and cultural rights 1966, International Covenant on the Civil and Political Rights of 1966, the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950 and the Protocols to It, for the maintenance of which the Universal Declaration of Human Rights of 1948 was essential.
An important role in the formation of international standards in the field of human rights is played by such resolutions of the UN General Assembly and other UN authorities as the minimum standard rules.
appeals of the prisoners of 1957 and 1977, the Code of Conduct of Officials to Maintain Law Enforcement of 1979, the Basic Principles of Appeal with Prisoners of 1990, the Minimum Standard UN Regulations on measures not related to imprisonment (Tokyo Rules), 1990
Special meaning have decisions of the Council of Europe, as well as the European Court of Human Rights regarding international standards. The Parliamentary Assembly of the Council of Europe in Recommendation 1415 (1999) "The Additional Protocol to the European Convention on Human Rights Concerning Main Social Rights emphasized the need to develop common social standards and their adoption by States belonging to the Council of Europe. The similarity of the norms in the sphere of social obligations is due to the fact that the globalization of the economy, trade and financial markets requires the formation of common values \u200b\u200band standards in this area enshrined in existing international conventions and legislation of states.
According to the Parliamentary Assembly of the Council of Europe, the European Social Charter of 1961 and the revised European Social Charter of 1996, as well as some other acts are associated with one of the cornerstone of the European Social Model, based on the general landmarks and social policy goals, the achievement of which will be possible Only in the event that they receive consolidation in the domestic legislation of States parties. Therefore, the meaning of the European Social Charter is to encourage States to adopt relevant legislation10.
10 See: Council of Europe standards in the field of human rights in relation to the provisions of the Constitution of the Russian Federation: Selected Rights. M., 2002. P. 432-436.
Thus, international legal standards are primarily a kind of international standards that are an integral part of the system of norms of international law. At the same time, the part of the international general rulesWith which the legal force is not yet attached, but in which the competent authorities of states are interested. These rules include the relevant provisions of a number of resolutions of international organizations, such as the UN General Assembly, ILO, UNESCO, in accordance with their charters. Subsequently, this kind of rules may be mandatory as the norms of an international treaty or international legal custom. International legal standards regulate the cooperation of states on a bilateral and multilateral basis. For the purpose of cooperation to strengthen international legality and international law and order, the standards of regional and universal nature are played in the form of generally accepted principles and norms of international law as regulatory establishments that have an imperative nature due to their fundamental and generally acceptedness, inadmissibility of waste from them, which is dictated by the interests of the international community states in general.
These standards, being higher than the norms of higher order, have the most common form of expression. This applies, for example, to the basic principles of international law - the core of generally accepted principles and norms and all other norms of international law. Modern regulation international relations are associated with the strengthening of the importance of such basic principles as sovereign equality of states, non-interference in internal affairs, equality and self-determination of peoples, non-use of force or threat
threading, peaceful settlement of disputes, irrevomination of borders, territorial integrity of states, respect for human rights and fundamental freedoms, cooperation of states, conscientious fulfillment of international obligations.
International legal standards in their signs are rules in the form of a certain model of behavior. Its content must be in many cases specific, and the elements of the content of the model are mutually agreed. Such a model of behavior relates to a strictly defined format of actions or abstinence from the action, a model condition, on the basis of which is purchased. The standard is characterized by typing, et altitude of the rules of conduct, often not providing for alternatives in the actions of the state. Taking into account the typing formulates the relevant rights and obligations of the state. The international legal standard reflects the unity of the requirements contained in it for all participants of the relevant international obligation, its goal is to be a typical guideline, to ensure their equal rights and uniform behavior under this standard.
Comparison of international legal standards and international legal principles leads to the conclusion that the latter are legal establishments that determine the essential features and the main content characteristics of the institute, industry or the international law system. In essence, it is its indigenous standards, "cementing" into a single integer indicated structural entities that allow the norms of international law to function as a specific system. Such norms in the form of the basic principles of international law are the core of modern international law and in the hierarchy of its norms occupy the main
position. It is due to their generally acceptedness and imperative character. Many states are consolidated in their constitutions of the provision, according to which generally accepted principles and norms of international law covering its basic principles are an integral part of the legal system of the state.
International legal standards also belong to the basic provisions of international law, however, in contrast to the basic principles expressed in the most general form, have a greater degree of concretization and a narrower scope of application. In addition, many international legal standards in the extent of their legal force are disposed, that is, the States have the right to change, supplement or cancel a certain standard in their mutual relations on the basis of an international treaty or to enter his new one. At the same time, along with the dispositive international legal standards of the state on the basis of a contract or international legal custom, the standard may be adopted in the form of a principle having an imperative character. According to Art. 53 The Vienna Convention on the Right of International Contracts of 1969. The imperative norm of general international law as the norm, received and recognized by the international community of state as a whole and not allowing deviation from it, can be changed only by the subsequent norm of general international law, which is of the same nature. Consequently, the difference in imperative and dispositative standards is to their hierarchical position, which does not interfere with the functioning of these standards as the basic basis of modern international law.
In a number of areas of cooperation between states adopted by international legal standards
called to ensure at least the minimum level of these rights. However, it is not possible to establish this amount of the standard, which for this period has the highest possible level.
With regard to the volume of standards in the field of human rights protection, it can be assessed from the point of view of the level of specific requirements of international legal obligations, most of which constitutes the provisions of international treaties11. Deviations from such a regulatory minimum are possible only for the purpose of exceeding or greater concretization of this reference. Participants in the International Human Rights Treaty rightfully limit themselves as possible to declare reservations during ratification or accession to such treaties regarding specific rights and freedoms. In a number of international conventions governing rights issues
11 See: Vagizov R. G. A domestic mechanism for the implementation of international standards and rules in the field of civil and political human rights (Russian Federation and the Republic of Tatarstan): Author. dis. ... Cand. jurid science Kazan, 1998. P. 7, 15; Chernyshova O. The right to freedom of movement: Standards of the Council of Europe // Constitutional Law: Eastern European Review. 2001. № "2. P. 48-
fifty; Zakovshina E. The principle of non-discrimination in the law of the Council of Europe // Constitutional Law: Eastern European Review. 2002. No. 2. P. 113-134; Limbach Jutta. Interjurisdictionary Cooperation Within The Future Scheme of Protection of Fundamental Rights in Europe // Human Rights Law Journal. 31 Decepthember 2000. Vol. 21. No. 9-12. P. 333-334; 70th Biennial Conference of The International Law Association. Committee On International Human Rights Law and Practice. NEW DELHI, 2002. P. 232-233; Umesh Kadam. Protection of Human Rights During Emergency Situations: International Standards and The Constitution of India // Indian Journal Of International Law. 2001. Vol. 41. P. 601-621.
there are no human provisions about reservations. For example, this applies to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987 and the Convention on the Rights of the Child 1989.
The presence of minimal international legal standards in the field of human rights does not mean their inferiority or extreme lack of regulatory regulation of a certain sphere of international relations. Standards rely on the experience of states and serve as a guideline12. They are optimal in content and represent the framework in which states were able to achieve a compromise. The state has the right to take further steps to fill the current international legal standards with new elements. Nevertheless, existing international legal standards in the field of human rights in their "minimality" are optimal, and this allows you to recognize them as mandatory for many states. The optimality of standards is due to the needs of modern civilization, the existence and development of which is inseparable from recognition as fundamental principles of respect for human rights and fundamental freedoms, the rule of law and domination of the law, democracy commitment.
European international legal standards, which are regional norms, make up with existing
12 See: Gorshkov S. A. Standards of the Council of Europe and the Legislation of Russia // Moscow Journal of International Law. 1999. No. 2. P. 161, 173; Yatsenko I. How we approached world standards // Lawyer news. 2002. No. 12. P. 6-9; Mizulina E. A new order of arrest and detention complies with the Constitution of the Russian Federation and international legal standards // Russian Justice. 2002. No. 6. P. 14-15.
universal norms in the field of human rights, the general system of norms. It testifies to the general support by the states of these norms, considering them as universal value - the basis of the united for all members of the international community of rules and landmarks13. The interpretation of the main, fundamental rights and freedoms "is practically identical both in the Conventions adopted within the framework of the UN and within the framework of regional international organizations, which allows to qualify the norms of such conventions as international standards of personal rights and freedoms that are subject to mandatory implementation by the state through IT trading in legislation "14. Universal use of rights and fundamental freedoms is compatible with the national specifics and traditions of states, culture and religion of their peoples15.
Universal approaches to the application by states of international legal standards reflect the tendency of internationalization public Life, manifested in international relations, which contributes to integration processes, jointly solving states of general problems of modernity16. To such problems, in particular, it is possible to include the decision of the issues relating to the legal regulation of the environment, the impact of a person on the nature, development and application of the norms in the field of countering corruption
13 See: Tyunov O. I. International Legal Standards Human Rights: Development and Characteristics // Russian Legal Journal. 2001. № 4. S. 47.
14 Pavlova L. V. To the issue of universality international agreements in the field of human rights // Problems of constitutionalism. Minsk, 2000. 9. S. 19.
15 there. P. 21.
16 See: Ampleva E. E. Modern
friendly regulatory system // Lawyer-International. 2008. No. 1. P. 3.
. To establish standards in the field of environmental protection, as well as the development of anti-corruption standards requires joint actions of states. This can be done through the conclusion of international treaties, as well as solutions created by states of international organizations. In addition, an important factor is to introduce relevant adjustments to national legislation. In this regard, in a number of international acts, for example, in the resolution of the UN General Assembly "Inalienable sovereignty over natural resources" of 1962, it is emphasized that the division by states of legal regulation of relations in the field of environmental protection at the national and international levels is determined by their sovereignty that acts within the territory of the state.
Based on this, in the UN Framework Convention on Climate Change in 1992, in accordance with the UN Charter and the principles of international law, a number of standards have been identified, for example: States have the sovereign right to develop their own resources according to their environmental and development policies and are responsible for ensuring that So that activities within their jurisdiction or control do not damage the environment of other states or areas outside the action of National Jurisdiction17. At the same time, many areas of the globe remain beyond the sovereignty of states, including the open sea, outer space, the bottom of the bottom outside the territorial sea and the continental shelf sea Spaces, Antarctica, Moon and other cosmic bodies, etc. In accordance with this subject of law
17 See: International Public Law: Sat. dock. / Sost K. A. Beckyashev, D. K. Beckyshev. Part II. M., 2006. P. 2185.
relations are becoming relations between states on the protection of certain areas in the World Ocean, the atmosphere of the Earth, the planetary medium and the outer space, animal and plant world. Complex rules arise when laws are accepted to fulfill obligations under international treaties in these areas. So, in Art. 82 of the Federal Law of January 10, 2002 No. 7-FZ "On Environmental Protection" found that "the international treaties of the Russian Federation in the field of environmental protection that do not require the use of publications of domestic acts apply to relations arising from activities in Areas of environmental protection, directly. In other cases, along with the International Agreement of the Russian Federation in the field of environmental protection, a relevant regulatory legal act applied to implement the provisions of the International Treaty of the Russian Federation ". The implementation of measures, including contractual, for the preservation of wildlife, the protection of the structure, functions and diversity of natural land systems contributes to the concept of sustainable development of humanity, supported by the UN and other international organizations and thereby affecting the formation of a new international standard. According to this standard, sustainable development implies the satisfaction of the needs of the modern generation, not a threatening opportunities for future generations to satisfy their own needs18. Methods of legitimate impact on the state are determined in order to involve them in agreements on
18 See: Innovative directions of modern international relations / under total. ed. A. V. Krutsky, A. V. Biryukova. M., 2010. P. 245-268.
prosles environmental protection19. Accordingly, the circle of participants in international treaties is expanding, the subject of which are legal relations in the field of environmental solutions. At the same time, the regulatory framework for regulating the corresponding relationships is expanding.
With regard to environmental protection in the modern period, standards in the field of international management of global processes are also developed. So, in the specified sphere, the mechanism of international administration of the UN system is formed. It is formed by the bodies and institutions of the UN, endowed with various status. These structures are purposefully affecting international environmental relations. The UN structures include the General Assembly, the Security Council, Secretary General, Specialized UN agencies, a number of subsidiary bodies, such as the Environment Group and Human Points, International Law Commission. The United Environmental Program on the Environment (UNEP) 20 is a key role in coordinating international cooperation in environmental protection. The activities of UN structures at the specified areas show itself as an action of the standard - the obligation
19 See: Nurmukhametova E. F. Methods of impact on the state in order to involve them in environmental protection contracts // State and Law. 2005. No. 2. P. 50-58.
20 See: Sokolova N. A. The mechanism of international administration of the UN system in the field of environmental protection // Magazine russian law. 2008. No. 8. P. 98-106; She is. International Legal Aspects of Environmental Management: Author. dis. ... Dr. jurid science M., 2010. P. 13; Kopylov M.N, Kopylov S. M., Moham-Mad S. A. UNEP and international legal protection of the marine environment // Eurasian legal journal. 2010. No. 11. P. 44.
cooperation of states on the formation and development of a group of norms regulating public relations In the field of environmental protection ("international environmental law") in the framework of a new environmental management institute, covering the rules of international legal regulation, coordination and organization of cooperation in the field of environmental protection.
Important importance for international legal regulation of environmental protection has its principles that, as already mentioned, in many cases play the role of the "highest level" behavior. They can be divided into general and special. Principles of general nature are the basic principles of international law, its basic provisions inherent in the regulation of relations between subjects of international law, regardless of the specifics of these relations. Therefore, the basic principles regulate relations within any industries and institutions. They are an objectively necessary condition for the functioning of the right system as a whole. Another part of the generally accepted principles and norms of international law is the provisions-standards of a special nature designed to ensure the functioning of not its entire system, but individual industries. They have specificity due to the nature of the relations regulated by these principles. General (basic) and special principles are inextricably linked with each other, so they constitute a framework of the system. Among the basic principles of international law governing the rules of the International Environmental Law ("International Environmental Law") should be allocated to the principles of sovereign equality of states, non-interference in internal affairs, non-use
lies or threats by force, peaceful settlement of disputes, cooperation of states, respect for human rights and fundamental freedoms, conscientious fulfillment of international obligations. These principles are applicable to all industries and institutions of international law. As for the special generally accepted principles used in the International Environmental Law ("International Environmental Law"), the following standards can be distinguished in relation to them: the duty of environmental protection (environmental protection) as a basic factor in maintaining conditions for environmental safe existence, human right for a favorable environment, sustainable use natural resources (sustainable development), non-commissioning of harm outside of national jurisdiction, precautionary as preservation and ensuring the diversity of the environment, the inadmissibility of military or any other hostile use of environmental impacts, as well as standards - principles related to the specifics of maintaining the regime of certain spaces: Antarctic, in respect of which the "principle of a specially protected area" is applied; spaces and resources of the international seabed area, where the principle of "General Heritage of Mankind" is valid; Outer Space, Moon and other celestial bodies, for whom the principle of "the property of all mankind" is recognized.
In some international environmental treaties, the term "international standards" is directly used. For example, it is applied in a multilateral agreement on international standards on the humanist wildlifeful animals between the European Community, Canada and the Russian Federation and the applications to it from December 15, 1997 in
it is emphasized that the purpose of the standards is to provide a sufficiently good condition of the caught animals and its further improvement.
Among modern universal problems, we will single out the problem of opposition to corruption. Corruption is defined as a bribe (receipt or cottage of bribes), any illegal use of its public status, conjugate with obtaining benefits (property, services or benefits and (or) advantages, including non-property) both for yourself and for their loved ones Contrary to the legitimate interests of society and the state, or the illegal representation of such a benefit to the said person21. A feature of legal regulation of anti-corruption and existing standards in this area is the association of corruption with other crimes of both an international and domestic nature, terrorism, organized crime, legalization (laundering) of income obtained by illegally, and so on in connection with this In a number of states current and applicable states contained in various international treaties, subject standards of combating corruption are regulated, which are of interest to all states in such areas as: evaluation certain actions as illegal; the basis of the responsibility of individuals and legal entities; Warning methods for criminal activities; Directions of international cooperation in the field of combating corruption; monitoring relevant standards; etc. In all these cases to counteract
21 See: Model Law "Fundamentals of Legislation on Anti-Corruption Policy"; Art. 2 Resolutions of the Inter-Parliamentary Assembly of the CIS member states of November 15, 2003 No. 22-15.
criminal activities There is a need to apply international legal standards, the deviation from which is unacceptable. This provision has found the consolidation of the 1997 control guidelines in the Roman Declaration in this document, the control is considered as an integral part of the regulatory system, the purpose of which is to detect deviations from the adopted standards. The departure from the standards is defined as their violation, leading to the defiance of the principles of legality and as a result of the ineffectiveness of management. As standards of contractual and legislative practice of states, the following types of compulsory measures can be distinguished in the fight against corruption: financial investigations, assets monitoring, preventing and control over the laundering of income obtained by the corruption method, and so on.
Development and adoption of acts in the form of declarations and resolutions relating to corruption is carried out along with the development and adoption of international treaties on combating corruption. Each group of these international acts should be considered not isolated from each other, but in their close relationship. The standards of combating corruption formulated in recommendation acts of international organizations often include new approaches to solving the problem, including basic provisions, such as anti-corruption, should not only begin with the recognition of this phenomenon with a factor in the fact, but also be a permanent factor of preventive measures by introducing into the appropriate regulations and the practice of state bodies. At the same time, a number of resolutions reflect the initial position, in accordance with which corruption is in itself a threat to security as a separate state and all
dars of the international community. The UN Convention against Corruption of 2003 reflected a number of international standards recorded in acts of international organizations, such as standards for conducting officials. They must conscientiously and properly comply with the established requirements, including providing the relevant declaration authorities, including information on non-magic activities, investments, assets, substantial gifts or benefits that generate collisions of interest in their function as public officials.
The named Convention also identifies other standards of anti-corruption, including generally accepted measures to prevent money laundering, issues of criminalization and law enforcement activities (abuse of official position, illegal enrichment, laundering of income from crimes, etc.), etc.
An important factor contributing to the approval of the general criminal policy aimed at protecting society from corruption is the standards of the Convention on criminal responsibility For the Corruption of 1999. To properly understand the requirements of the Convention, the State party gave a coordinated definition of such concepts, as "official", "Public employee", "mayor", "Minister", "Judge", i.e. defining persons Performing public functions. The above convention requires States parties on the basis of international agreements to generate norms establishing the obligation to introduce uniform or adopted on a mutual basis of legislation, i.e. standards related to investigations in criminal offenses recognized as such a convention.
Thus, standards in the field of combating corruption relate to a wide range of rules, including norms on the basis of criminal responsibility for corruption of both individuals and legal entities, on the provision of mutual legal aid, on the issuance of criminals, about the action of international procedural law, etc.
These areas of applying standards are actively in demand in the practice of states. In particular, this practice takes into account the provisions on the individual criminal liability of individuals for international crimes, on non-applicability of the statutes of limitations, the inadmissibility of the reference (in order to justify the face) on his official position, complying with the judicial authorities of a reasonable term for consideration of the case, on the implementation of judicial trial Based on justice and equality, the provision of accused the ability to defend itself personally or with the help of the defender himself. For example, the named standards are authorized to apply the International Criminal Court, operating on the basis of the 1998 Rome Statute, in which, in particular, emphasized the court's responsibility to ensure that the proceedings were fair and quick and carried out in full compliance with the rights of the accused and with due regard for protection. The victims and witnesses "22. In the Roman Statute, recognition was developed (" composite elements") Genocide, crimes against humanity, military crimes, which not only enriched the content of international legal standards existing in these areas, but also expanded the boundaries of their application.
Significant impact on the development of international legal framework
22 International Criminal Court: Sat. dock. Kazan, 2004. P. 79.
dartov have ruling of the European Court of Human Rights. The international legal standards developed by the ECHR are primarily certain provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms and Protocols to It, who received the interpretation of the Court and reflected in its legal position on a specific case. Interpretation of the ECHR provisions of the Convention and Protocols to It, contributing to the formation of the legal position of the Court in the case under consideration, often leads to the development of the provision that expands the content of existing standards or having importance for the subsequent practice of states, as a result of which a new standard is formed. This concerns the criteria developed by the ECHR when considering the issue of violation of the relevant international obligations taken by a certain state in connection with the non-compliance with the national judicial authorities of a reasonable trial period. Applied to reasonable time The proceedings of the ECHR, in particular, paid attention to the need to take into account the complexity of the case, the significance of the temporary factor to meet the legal rights of the applicant23. In the decision of the ECHR dated June 22, 2006, concerning the concept of "fair trial" (paragraph 1 and sub. "C" of paragraph 3 of Art. 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms), it was noted that this concept is related to The right of the person accused of committing a crime is present and effectively participate in the meeting of the court of first instance. When considering the case in the court of another level - the cassation instance, the personal presence of the defendant is not necessarily, although it has
23 See: Alyisievich E.S. System of legal standards of the European Court of Human Rights // Lawyer-International. 2006. No. 4. P. 29, 31.
the same value as consideration of the case in the court of first instance, even if the court of the second instance has the right to revise the case on the fact and on the issues of law. When evaluating this issue, Inter alia should be taken into account, the characteristic features of a specific trial and the method of representing and protecting the interests of the protection of the court in the court of the cassation instance, primarily in the light of the issues facing the court, and their importance for the person feeding the cassation complaint. In order to ensure the validity of the criminal justice system, it is crucial to adequate protection of the defendant as in the court of first instance and in the court of cassation. This right means that the side of the accusation and the Protection Party should be able to explore the comments and evidence submitted by the other party and make their comments on them24. The conclusion of the ECHR was also listed that the production in the court of the second instance, about the meeting of which the applicant was not properly notified, did not meet the requirement of justice. The court issued a resolution that there was a violation of the already mentioned provisions of paragraph 1 and sub. "C" of paragraph 3 of Art. 6 Convention25.
Thus, international legal standards are facilitating the regulation and development of international relations of various levels the basic provisions of international law, expressed in the form of an international treaty, international legal custom, a certain decision of an international organization, in some cases of a court decision that ensure the functioning
24 See: ECHR Resolution dated June 22, 2006 in the case of "Metelitsa against the Russian Federation" // European Court of Human Rights and the Russian Federation. Decisions and decisions. T. I. M., 2006. P. 297.
25 ibid. P. 298-299.
as the system of norms of international law as a whole and its industries, as well as contributing to the relationship of domestic and international legal norms, whose tribal to national legislation serves as one of the factors of the development of the domestic law system.
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right child legislation international
For modern society, the problems of the realization of the rights and legitimate interests of children are relevant.
The number of annually revealed orphans and children who have deprived of parental care (social orphanhood) increases. The position of children is negatively affected by a high level of parent's unemployment. The role of the family is weakened as a guarantor of the economic security and development of children. The exhausting forced ultra-employment of parents associated with searching for earnings, permanent psychological overloads, which they experience in their lives, significantly complicate the relationship between parents and children, reduce the influence of families as a social institution on the processes of education and socialization of the younger generation.
Of course, according to O. Zubareva rightly notes, in the current situation it is necessary to close attention of the state and society to the problems of education of children by parents, intra-day relationships. The solution of these problems is primarily a legislative way.
It should be emphasized that the domestic legislation in the field of children's protection is formed and evolving, taking into account international norms and standards.
The first universal international legal act on childhood protection, the Declaration on the Protection of Children's Rights, was adopted by the Liga of Nations only in 1924.
Today, the law on the protection of the rights of children is based on the most important international legal instruments of the UN, which contains basic requirements. public Policy For children.
To them, first of all, include:
- - the Declaration of the Rights of the Child (adopted by the UN General Assembly resolution 1386 (XIV) of November 20, 1959);
- - the minimum standard UN rules concerning the administration of juvenile justice (Peking rules adopted by General Assembly resolution 40/33 of November 29, 1985);
- - Declaration on social and legal principles relating to the protection and well-being of children, especially when the transfer of children to education and their adoption at the national and international levels (adopted by General Assembly resolution 41/95 of the UN General Assembly of December 3, 1986);
- - UN Convention on the Rights of the Child (adopted by the UN General Assembly resolution 44/25 from November 20, 1989).
However, St.25 of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948, indicated that motherhood and infancy give the right to special care and help. All children born in marriage or out of marriage should use the same social protection. Obviously, these provisions in the field of the protection of the child's rights were clearly not enough. But only on November 20, 1989, the UN General Assembly resolution 44/95 adopted the Convention on the Rights of the Child. This document has become the most well-known and significant international legal act by enshrining generally accepted norms of international law in the field of childhood protection, prevention of neglect of minors.
So, the most universal international document on childhood protection is the UN Convention on the Rights of the Child 1989. The Convention was actually replaced by a declaration of the rights of the child (1959) and expanded the idea of \u200b\u200bthe ten principles of legal aspects of childhood protection, named in this regulatory legal act.
According to the provisions of this state convention, its signatories pledged to respect and ensure all rights provided for by this international legal act, for each child within their jurisdiction, without any discrimination, regardless of race, leather color, gender, language, Religions, political or other beliefs, national, ethnic or social origin, property status, the health and birth of a child, his parents or legal guardians or any other circumstances.
Also, these states have committed themselves to take all necessary measures to ensure the protection of a child from all forms of discrimination or punishment based on the status, activities, expressed views or beliefs of the child, child parents, legal guardians or other family members.
All actions against children undertaken by social security institutions, courts, administrative or legislative bodies should be carried out in order to best ensure the interests of the child.
The States that signed the Convention on the Rights of the Child pledged to also provide a child to such protection and care that is necessary for its well-being, while taking into account the rights and obligations of his parents, guardians or other persons who are responsible for him by law and for this purpose Take all relevant legislative and administrative measures.
In addition, states should take all necessary legislative, administrative and other measures to implement the rights recognized in this Convention. Regarding the economic, social and cultural rights of state, states are obliged to take such measures in the maximum framework of their resources and, if necessary, within the framework of international cooperation.
According to the provisions of Article 5 of the Convention on the Rights of the Child, States should respect the responsibility, rights and obligations of parents, guardians or other persons who are responsible for the child, to properly manage and manage the child in implementing them recognized in the above-mentioned Convention and do it in accordance with the developing abilities of the child.
Also, the Convention contains a significant list of rights that the child has. These include rights:
- - for life;
- - to the expression of his opinion;
- - addressed;
- - know your parents and their place of residence;
- - to freedom of thought, conscience and religion;
- - to freedom of associations and freedom of peaceful assembly;
- - on vacation and leisure, to participate in games and entertainment activities;
- - And other rights.
According to Article 199, 20 of the State Convention should take all necessary legislative, administrative, social and educational measures to protect the child from all forms of physical or psychological violence, insult or abuse, lack of care or negligent circulation, rough circulation or exploitation, including Sexual abuse, from parents, legitimate guardians or any other person taking care of the child.
Such protection measures, if necessary, include effective procedures for the development of social programs in order to provide the necessary support to the child and persons who care about it, as well as for the implementation of other forms of prevention and detection, reports, transmission for consideration, investigation, treatment and subsequent Measures in connection with cases of ill-treatment of the child listed above, as well as, if necessary, to initiate a judicial procedure.
A child who is temporarily or is constantly deprived of his family environment or who in his own best interest cannot remain in such an environment, has the right to special protection and assistance provided by the state.
States parties in accordance with their national laws provide a replacement for the care of such a child.
Such care may include, in particular, transfer to education, "Cafela" on Islamic law, adoption or, if necessary, a premises to the appropriate institutions for child care. When considering replacement options, it is necessary to properly take into account the desirability of the continuity of the education of the child and its ethnic origin, religious and cultural affiliation and native language.
Thus, this international legal document provides for not only the rights of the child, but also ways to ensure and methods for the prevention of neglect and unreserved minors.
Given the global importance for humanity, the problems of creating conditions for the normal development and life of children, on September 30, 1990 at the 45th session of the UN General Assembly, the World Declaration on ensuring the survival, protection and development of children in the 1990s was adopted.
Thus, the modern stage of international cooperation in the field of human rights is characterized by a number of success and achievements.
So, A.Kh.Sidov notes that a clear idea of \u200b\u200brelatively generally accepted human rights has emerged, the main array of international standards has been accumulated, a network of international mechanisms and procedures in the field of human rights protection has been created, the practice of attracting non-governmental organizations to discuss in the UN system has been widely disseminated. associated with human rights, etc.
One of the most important achievements of the international human rights protection system is not only recognition by the international community of the fact that a child in view of his physical and mental immaturity needs special protection and care, including proper legal protection, both before and after birth, but also recognition Children are independent entities of law.
M.V.Shugurov, is the most promising mechanisms for the protection of human rights protection mechanisms, is "not closing human rights at the national level, but developing more effective measures to optimize the interaction of international, regional and national efforts to promote and develop respect for them. Multi-level support and human rights development will contribute to their approval as a real rod of modern world order. "
Thus, the protection of the rights of the child at the international level can be carried out in various forms, through various mechanisms and various organs and organizations. The main problem in this area is the advisory nature of the majority of decisions and the remoteness of the activities of many bodies from real life and the real rights of specific persons.
Nevertheless, the public attention to the problems of human rights protection in general and the rights of children in particular is the driving force that can increase the efficiency of existing human rights protection mechanisms.
The constitution determined that the generally accepted standards contained in international legal acts ratified by Russia are part of its national legislation, have a priority in relation to domestic law and mean a direct legal effect (Article 15).
Consequently, the norms of international law are not only its source, but also a source of criminal law. International legal standards for dealing with prisoners should be applied in practice. correctional institutions Just like the norms of criminal executive legislation. This is primarily due to the fact that the struggle with ever-increasing crime requires joint efforts All states and international legal standards should be respected at all levels and stages of crime control.
The priority of international legal standards is also enshrined in Part 2 of Art. 1 Russian Declaration of Human Rights and Freedoms and Citizen (1991), which says: "Generally accepted international norms relating to human rights have an advantage over the RSFSR laws and directly generate rights and obligations of the RSFSR citizens."
The study of the problems of international legal standards allows to use the experience of combating crime, including the execution of criminal punishments, strive to improve and humanize the FSIN of Russia.
Recognition of international legal standards and the introduction of them in the criminal law of the Russian Federation will make it more efficient, will serve as a guarantor of the legality of human rights, will be an unmistakable direction in the law-conducting and law enforcement activities of the relevant authorities and officials.
Based on the foregoing, generally accepted principles and norms of international standards are a fundamental basis for the development of both national legislation and legislation in the field of conversion of prisoners.
In order to more clearly understand the content of a sufficiently large number of international legal standards, their legal classification is needed.
International legal documents in connection with this should be divided into standards that are addressed to all citizens, and standards that are specifically dedicated to prisoners. The first group of standards relates to human rights in general and only in some cases concerns the rights of subjects in the field of criminal law. Such a group of international standards has a common universal nature and applies to all branches of law.
The most important international legal acts on human rights rights are:
· Convention on Forced or Commitable Labor (1930);
· Universal Declaration of Human Rights and Citizen (1948);
· International Covenant on Civil and Political Rights (1966);
· International Covenant on Economic, Social and Cultural Rights (1966);
· Final Act of Security and Cooperation Meeting in Europe (1975);
· Total document of the Vienna meeting of representatives of States Parties to the Security and Cooperation Meeting in Europe (1989);
· Convention on the establishment of an international system for the preservation of rights in the field of social security (1982), etc.
The above international legal instructions on the priority of universal values \u200b\u200bin the theory of international law are considered fundamental, or universal acts. So, art. Two universal human rights declaration states that rights and freedoms proclaimed by the Declaration belong to everyone without exception. At the same time, the general standards not intended specifically for prisoners contain certain provisions concerning persons convicted of criminal offenses.
Article 5 of the Universal Declaration of Human Rights Indicates that no one must be subjected to torture, inhuman or degrading the types of circulation and punishment. Article 10 of the Covenant establishes that all persons deprived of their liberty are eligible for humane appeal and respect for dignity. In penitentiary institutions, such a regime should be established, the purpose of which is the correction and social rehabilitation of persons devoid of freedom. In art. 10 (2) It is indicated that the defendants are placed separately from the prisoners, and the accused minors - separate from adults.
In the final document of the Vienna meeting of representatives of the States Parties to the Safety and Cooperation Meeting in Europe, it contains the principle of humane treatment of persons serving the punishment in places of detention, the inadmissibility of the use of punishment that would be the nature of the ill or degrading human advantage. The most important provisions of international legal standards have already found their specific embodiment in Art. 1 of the Law of July 21, 1993 "On the institutions and bodies performing criminal penalties in the form of imprisonment", the concept of reorganization of the Criminal Executive System of the Ministry of Justice of the Russian Federation (for the period 2002 - 2006).
Article 3 PEC RF specifically establishes the ratio of the Criminal and Executive Legislation of the Russian Federation and international legal acts. In particular, in part 1 of Art. 3 PEC RF assigns that "CRIMINAL EXECUTIVE LEGISLATION OF THE RUSSIAN AND PRACTICE OF ON APPLICATIONS is based on the Constitution of the Russian Federation, generally recognized principles and norms of international law and international treaties of the Russian Federation, which are an integral part of the legal system of the Russian Federation, including on strict compliance with torture protection, violence and other cruel or degrading human advantage of condemned. "
The second group of international legal standards is the principles of a special nature that directly reflect the special rights of convicts, that is, refer to the penitentiary legislation or in general for the criminal system.
· Minimum standard rules for handling prisoners (1955);
· Code of behavior of legal entities (1979);
· Convention against Torture and other cruel, inhuman or degrading treatment and punishment (1984);
· Measures guaranteeing the protection of the rights of those who are sentenced to death (1984);
· Minimum UN standard rules concerning the administration of juvenile justice (Peking Rules) 1985;
· A set of principles for the protection of all persons subjected to detention or conclusion in any form (1988);
· Standard minimum UN rules in relation to measures not related to imprisonment (Tokyo Rules), 1990;
· Basic principles of conversion with prisoners (1990), etc.
naliza of this classification group of standards allows us to conclude that their specific provisions are directly related to both persons convicted by the court to deprive freedom and to persons convicted of punishments that are not associated with imprisonment. It is the basis that regulates various aspects of the activities of the penitentiary system, as well as a combination of legal relations on the execution of criminal penalties.
The practical purpose of the classification of standards is that they oriented persons studying this problem, not only on general standards, but also specialized regulations.
In carrying out cooperation in the field of human rights and conversion with prisoners, the entire set of international legal standards according to the degree of obligation can be divided into the norms of the mandatory and the rule of recommendatory nature.
International treaties (Covenants, Convention), which are legal or conventional in nature, do not allow any deviations in the national system. They are usually fixed in domestic legislation and are executed strictly by states by signatories or ratified.
In this regard, Russia has committed itself to lead domestic legislation, including legislation in the execution of criminal penalties, in accordance with the generally accepted standards.
The following group of international documents that are not mandatory is specially created to establish standards in the field of conversion with prisoners in international organizations as universal and regional nature. Such recommendation documents or standards should include, for example, the minimum standard rules for the treatment of prisoners (1955), etc.
The division of all international documents on international legal acts and standards allows you to distinguish mandatory standards from recommendatory standards.
If the first group of standards has mandatory legal force for the state that ratified certain regulations, then the recommendation regulations are introduced by one state or another, taking into account national, economic, political and other prerequisites.
The main purpose of standards and recommendations for less categorical forms compared to international treaties (conventions) is that they should contribute to the development of internal penitentiary legislation in order to effectively achieve the resocialization of prisoners. Subsequently, as they are introduced into national legislation, they acquire the nature of mandatory. Thus, this classification group allows, when studying international legal standards, take into account their various legal force.
The classification of international standards is possible in their main content. First of all, these are standards containing general provisions - principles standards. Such standards establish the basic principles of cooperation of states on penitentiary problems, international resolutions, relevant concepts.
Standards recommendations can regulate specific legal relations arising from the execution of a particular type of criminal punishment. Thus, the minimum standard rules for the treatment of prisoners regulate relations in the field of punishment in the form of imprisonment, and the standard minimum UN missions regarding measures not related to imprisonment (Tokyo Rules) relate to the appointment of sentences not related to imprisonment.
The appointment of this classification group of standards is to provide direct assistance to regional institutions in conducting research activities to develop rules for the treatment of prisoners.
The following classification group is the division of standards on subjects of legal relations.
On the one hand, these are international standards that apply mainly to prisoners (minimum standard rules for the conversion of prisoners), on the other, standards related to certain professional groups: personnel of penitentiary institutions and other categories of officials (the code of behavior of legal entrepreneurship officials 1979, Tokyo Declaration of the World Medical Association of 1975).
International legal standards should be classified according to territorial action. They are established by the UN General Assembly and are addressed to all members of the world community. These include the rules of the United Nations concerning the protection of minors devoid of liberty (1990); The basic principles of the use of force and firearms by law enforcement officials (1990).
In addition to the UN, other regional communities are also engaged in penitentiary problems. This includes the Council of Europe, which, as a regional government organization, engaged in the problems of protecting human rights and freedoms, was formed in 1949.
In accordance with paragraph "b" Art. 1 of the Charter of the Council of Europe is its goal of general interest - conclusion of agreements and joint actions in the economic, social, cultural, scientific, legal and administrative spheres.
Questions concerning national defense, the competence of the Council of Europe in accordance with its Charter, adopted on May 5, 1949, are not included.
In addition to the Charter of the Council of Europe, the legal basis of its activities amounted to international legal acts of the general meaning, as well as the European Convention on the Protection of Human Rights and Fundamental Oils of 1950. This also includes the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 .
Under the auspices of the Council of Europe, a provision on European prisons was adopted, which contains standards for the appeal with prisoners located in places of imprisonment of the Freedom of Council of Europe member countries, and are directly addressed only to these states. Along with international government organizations (United Nations and its working bodies), it should be noted the activities of international non-governmental organizations (MNPO), which are engaged in issues of the rights of convicts, surveying criminals, prevention of crime and handling offenders and other challenges of penitentiary policies.
Russia's active participation in the implementation of international legal standards for the protection of human rights, a humane attitude to offenders allowed her in accordance with the invitation of the Council of Europe of February 6, 1996, and then of the Federal Law of February 23, 1996 "On Russia's accession to the Charter of the Council Europe "become a full member of the Council of Europe.
Note that the Russian Federation actively operates in all areas and forms of international cooperation, constantly uses all its capabilities to coordinate coordination. scientific research, studying the practical activity of foreign penitentiary systems.
Taking into account the foregoing, under international legal standards, the prisoners should be understood by the international levels of UN documents (regulations, recommendations for the rules for the conversion of prisoners), which are aimed at improving national legislation in such a field of activity of the penitentiary system, as execution of criminal punishments.
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Department of State and Law, International and European Law Theory
Graduation qualifying (thesis) work
Topic: Implementation of international legal standards in the field of human rights in russian legislation
Performed:
Student 6402 uch. c.
Chernomashenseva Irina Vasilyevna
Introduction
1.3 International Legal Standards. Concept, general characteristics
Chapter 2. Aspects of the ratio of Russian legislation on human rights with international standards
2.1 Russian Constitution and International Human Rights Standards
2.2 The ratio of human rights protection at the international and national level
2.3 Restrictions on human rights in accordance with international standards and in accordance with Russian legislation
Conclusion
List of used literature
Introduction
The relevance of this study is due to the fact that human rights are one of the highest values \u200b\u200bof human civilization, covering the most different aspects of individual and public existence. Human rights are certain regulatoryly structured properties and features of the existence of the personality, which express its freedom and are integral and necessary ways and terms of its life, its relationship with society, a state, other individuals. Human rights are inalienable. No one can deprive a person of his natural inborn rights - for life, for personal integrity, free choice of ways of its life, freedom of conscience, opinions, beliefs, autonomy in the field of private life and other rights. The modern world cannot be submitted without human rights, which are based on the principles of freedom, equality, justice and are universal.
In the Russian Federation, the basic human rights are enshrined in the Constitution of the Russian Federation adopted by popular voting in 1993. The Russian Federation is a state that continues to carry out rights and fulfill the duties arising from international treaties concluded by the USSR. This fully applies to all the international documents signed by the USSR and the Covenants ratified by him on human rights. In 1998, a ratification ofFederal law of March 30, 1998 No. 54-FZ "On ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms and Protocols to It" // Meeting of the legislation of the Russian Federation. 1998. №14 Art. 1514. And the "European Convention on the Protection of Human Rights and Fundamental Freedoms" 1950 Convention on the Protection of Human Rights and Fundamental Fosts of ETS No. 005 (Rome, November 4, 1950) (with reference and extra. Dated May 11, 1994 ) // Bulletin of international treaties. 2001. No. 3.
The provisions of the Constitution of the Russian Federation dedicated to human rights are fully consistent with the approaches adopted in the modern democratic world on the construction of relations between the state and the individual. According to the Convention on the Protection of Human Rights and Fundamental Freedoms, ensuring guarantees of human rights is carried out with a support for the deep commitment of states recognized freedoms that are the basis of justice and the universal world. Compliance with freedoms is best ensured, on the one hand, a truly democratic political regime, and on the other, a universal understanding and observance of human rights. Prohibul of the Convention on the Protection of Human Rights and Fundamental Freedoms / Meeting of the Legislation of the Russian Federation. 2001. №2. Art. 163. The mentioned Convention refers to two aspects of the process of ensuring civil rights - a truly democratic regime and universal understanding and observance of human rights. It remains only to clarify that genuinely democratic political regime is possible in society, a characteristic feature of which is universal understanding and observance of human rights.
These fundamental establishments of the Russian Constitution and international legal acts directly and clearly indicate guarantees of human rights. The question is that only an indication of them in regulatory acts does not always turn out to be effective. There are enough examples in Russia. In this regard, the search for perspectives, ways to improve the situation, but for this it is necessary to clearly understand the foundations of international legal norms that establish standards for human rights.
The purpose of the thesis is an analysis of the main international standards in the field of human rights and Russian legislation, as well as identifying their aspects of the relation.
To achieve the goal during the work, the following tasks are solved, which constitute its maintenance: studying the history of the origin and development of human rights; determination of basic international legal acts on human rights; Analysis of international human rights standards; identifying aspects of the relationship between international standards in the field of human rights and the Russian Constitution; determination of admissible limitations of human rights in accordance with international standards and in accordance with Russian legislation; Study of the ratio of Russian legislation and international standards in the field of human rights protection.
The object and subject of research are determined by the subject of work, its purpose and objectives. right person protection standard
The object of scientific analysis of this work is human rights as a theoretical category and as a legal phenomenon of social reality.
The subject of the study is the problem of the relationship and interaction of human rights. The subject orientation is determined by the allocation and study, within the framework of the stated topic, regulatory and legal sources of both the domestic, adopted at the federal level and at the level of the subjects of the federation and international judicial and administrative practice.
The methodological basis of the work is a method of system analysis, a historical method, a comparative analysis, a logical method, technical and legal and others.
The degree of scientific development of the problem. The concept of human rights and freedoms and citizen is widely used in law science and law enforcement practice. However, little attention is paid to the issues of human rights ratios according to Russian legislation and international standards.
Separate aspects of human rights problems were repeatedly considered in legal science. The general theoretical aspects of human rights developed such scientists as S.S. Alekseev, N.V. Vitruk, A.V. Mitskevich, V.S. Nurse, V.D. Perevalov, B.N. Topornin, A.G. Habibulin, A.S. Shaburov and others.
The graduation work uses works of scientists in the field of human rights ratios international and national right -
Yu.V. Samovich, S.A. Gorshovah, V.A. Kartashkin, I.I. Lukashuk, H.B. Sheinina, V.V. Lysenko.
Protection issues:
The current level of development requires agreed regulation of human rights, as a result of which the unequivocal legal regime personalities in all states of our planet;
Most of the provisions of the Constitution of the Russian Federation on the rights and freedoms of personality correspond to international regulatory acts, and create the necessary legal framework for the realization of human rights;
The interdependence and unity of the world require that national legal systems can interact with each other and with the legal system of the international community as a whole;
The global integration processes of the international community confirm the increasing role of the international human rights protection system.
The structure of the work consists of administration, two chapters, six paragraphs, conclusions and a list of used literature.
Chapter 1. International Human Rights Standards
1.1 The emergence and historical development of human rights ideas
Human rights that determine the sphere of his freedom and based on formal equality became one of the main value orientation of social development. They had a tremendous influence on the nature of the state, since it was the limiter of His Alliance, contributed to the establishment of democratic interaction between the state power and the individual, freeding the latter from excessive guardianship and suppressing his will and interests on the part of power structures. The formation of the rule of law would be impossible without approval in the public consciousness and practice of freedom and human rights.
Human rights arise and develop in different regions The world is bottled in accordance with the nature of culture, philosophy, religion, public worldview, morality that determine the nature of one or another civilization. After a person / ed. Lukasheva E.A. M., 2003. P. 2.
In the process of becoming a gradual universalization of the provisions on human rights, the ideas about their inborn, inalienable character played a special role. The emergence of these ideas belongs to the ancient time.
The rights of citizens, and not the right of human rights were proclaimed in ancient Greece. Ancient Greek Reviews of Human Rights was formed on the basis of ideas that the policy (state city), its laws have divine origins and rely on Divine Justice. It should be emphasized the significant legal importance of judgment on the right, law, the state, the personality of the sages of ancient Greece: Solon, Pythagora, Hercelite, Protagora, Socrates, Plato, Aristotle.
Of particular interest is the understanding of Solon law and its power as a combination of law and strength, universality of law and legal equality.
An important role in the formation of the ideas of legal equality of people was played by the teachings of Pythagora and his followers.
The need to comply with all intelligent and fair laws has substantiated Socrates.
In the project of the ideal state of Plato there are no private property, dividing people on free and slaves, is recognized by the equality of women and men.
A significant contribution to the concept of human rights was made Aristotle. He defended the rights inherent in a person from birth, and, above all, his right to private property. This right is rooted in the very nature of a person and is based on his love for itself. Aristotle expressed a number of ideas close to the modern concept of human rights. So, he not only recognized the rights of a citizen of the state, but also distinguished the natural and conditional, positive law, and also believed that the natural right should serve as a model for the right of conditional, which, in turn, more changeable and is the result of the activities of the authorities and agreements between People. This idea of \u200b\u200bthe rule of natural law over the laws of the state has developed its development in modern theories of human rights, including the concept of a legal state. Mukhaev R.T. Theory of State and Law. M. 2005.
It should be emphasized that Aristotle also owns the idea of \u200b\u200bseparation of the authorities, which subsequently received the most complete development in the works of outstanding thinkers of the Epoch of Enlightenment.
The ideas of natural law were developed in ancient Rome. They, in particular, developed a statesman, speaker and thinker Mark Tully Cicero. Speaking about the natural right as the main principle of justice, Cicero noted that it "possesses each of its own and retains equality ..." The natural right emerged earlier than any kind of writing law and the state as a whole. He also believed that by nature, "We are all like and equal to each other" that "there is no difference between people" that "a person is a citizen of the whole world, as if of a single hail."
The new sound and the meaning of the ancient ideas of natural and legal equality and freedom of all people were obtained in the Middle Ages.
In the Middle Ages, the idea of \u200b\u200bhuman rights loses their natural historical justification and is replaced by the divine right, which was approved by Christianity. It requires respect for every person as a creation, endowed with the soul and created by God to his image and likeness. Divine origin determines the principal equality and freedom of all people Mukhaev R.T.. Theory of State and Law. M. 2005 ..
In fact, in the Middle Ages, freedom was extremely limited and presented as a privilege given to the highest class despite the fact that the majority of the population remained powerless. However, at that time, attempts were made to limit the rights of the monarchy. In England, the Great Charter of Valibilities was adopted in 1215, whose provisions were aimed at limiting the arbitrariness of royal officials. A special place is occupied by Art. 39 Great Charter, providing for the possibility of punishment of free not otherwise as legal sentence And according to the country's law.
Our highest social sound of the idea of \u200b\u200bnatural law was obtained in the context of the general crisis of feudalism. It was at that time that the rationalistic theory of natural law was finally imposed.
It is reflected in the works of Locke, Montesquieu, Jefferson and others. With its criticism of feudalism and the substantiation of the need for the rule of law in relations between an individual and the state, new ideas about the rights and freedoms of the individual, this theory made a great contribution to the ideological training of bourgeois revolutions and the legal consolidation of their results.
The legal worldview of the new time gave the ideas of natural legal theory a qualitatively new interpretation. Individualism as a doctrine that established within the framework of the natural legal doctrine proclaimed human rights by the highest value. It was believed that these rights are above the laws established by the state. It is important to note that the basic function of natural rights has seen in the protection of the individual from the encroachment by the state. This idea is traced in the teachings of almost all thinkers of the natural legal direction. But only John Locke she gets a logical conclusion. Describing the current civil laws of states, Locke argues that "they are just so true, as far as they are based on the law of nature through which they must be regulated and interpreted." In the center of the Locke's teachings - the system of natural rights and freedoms of personality, including the right to life, the right to freedom, the right to property. Man, writes Locke, by nature possesses the authority to protect "his property, i.e. his life, freedom and property." Private property Locke considers as an integral natural right of each personality: "The fact that a person has learned from the subjects created and granted to him by nature, he merged with his work, with something that it is inherently belongs to him, and thus does it with his property ". Locke sees owned the basis of not only the freedom and independence of man, but also the organization of society in accordance with the law of nature. Political and legal views of J. Locke developed S. Montesquences. The main merit of Montesquieu - in defending political freedom of personality and developing the concept of separation of authorities to legislative, executive and judicial, necessary to ensure political freedom of personality, the normal functioning of public life and public safety. With the emergence of the state and the loss of initial equality, it approves - Montesquieu, a new freedom occurs - the political, which consists only of laws, and the laws themselves must take into account the requirements of the social environment. The task of political power is the restoration of lost freedom within the law. The theory of state and law: a course of lectures / Ed. N.I. Matusov and A.V. Malko. - 2nd ed., Pererab. and add. M., 2001. P.97
In the history of the formation of generally accepted human rights, the English bourgeois revolution occupies a special place. Its peculiarity is that as a result of her victory, there was a transition from the feudal monarchy of the Middle Ages to the bourgeois monarchy of the new time. It is also necessary to emphasize that the results of the British revolution were so significant and diverse, which not only predetermined the development of English society, but also had a tremendous impact on the entire European continent and America. As a result of the revolution, several very important legal acts aimed at ensuring human rights were adopted. The Petition on the right of 1628, relating to the period of the formation of the bourgeois system, in England, pinned certain duties on the king, which were called upon to protect the subjects from the arbitrariness of the Royal Administration. Further, a step on the way of ensuring human rights was Habas Act of the Act of 1678, which introduced the concept of "proper procedure", established guarantees of the person of personality, the principle of the presumption of innocence and the other most important to protect the rights of the situation.
The act that secured the compromise between the relevant bourgeoisie and the ruling top of landowners, the statement of the constitutional monarchy became Bill on the rights of 1689. Bill assigned a significant role of parliament, prohibited without his consent to suspend the actions of laws, collect taxes and fees in favor of the crown, maintain a permanent army in
peaceful time. Along with this, Bill made an invaluable contribution to the development of human rights, establishing freedom of speech and debate in parliament, the freedom of elections to parliament, the right to circulate subjects with the petition to the king.
These regulatory acts are the testimony of "title" of England in the field of human rights and necessary to protect them the separation of the authorities. The act of the arrangement of 1701 was established by the rule of parliament in the field of legislation, the principle of displaceability of judges, prohibiting the royal ministers to be members of parliament. These innovations have become possible due to the intensive development of bourgeois relations, strengthening the power of the bourgeois estate, which required to put the limit of feudal arbitrariness and absolutism.
The subsequent development of the ideals of freedom and human rights, incarnated in great historical documents, occurred in the United States. The origins of this process were laid in the philosophy of enlightenment, the teachings of the ancient Greek philosophers, the natural legal doctrine, such acts as the Great Charter of Wolnities, the Petition of the right, Bill on Rights, Habas Corps Act.
The doctrine of natural law was developed by Thomas Paine and Thomas Jefferson in their struggle for the victory of the bourgeois-democratic and anticolonial revolution. Paphos Pain and Jefferson's ideas are directed not only for the approval of democratic statehood, but also to protect the inalienable natural human rights.
Thomas Jefferson perceived the naturally legal doctrine in its most radical and democratic interpretation. The radical and democratic interpretation of the natural legal concept manifested itself in the submission of Jefferson on the public contract as the basis of the company of the Company, which gives all its participants the right to constitute state power. From here, the idea of \u200b\u200bpeople's sovereignty and equality of citizens in political, including electoral, rights imposed. An even greater importance was the fact that Jefferson was the author of the Declaration of Independence Declaration of 1776 - a constitutional document, which, based on the democratic and revolutionary interpretation of the natural legal doctrine, justified the legality of separating the colonies from England and the formation of them of an independent, independent state. For Jefferson as the author's declaration, the following truths are obvious that all people are created equal to what they are endowed with their Creator some essential rights, including life, freedom and desire for happiness. " Freedom as a natural and inalienable right has seen the colonists as a guarantee of property freedom. Almost freedom in the declaration of independence included the right to freely use and dispose of their material benefits, i.e. The right to property. Theory of the state and the rights: a course of lectures / ed. N.I. Matusov and A.V. Malko. - 2nd ed., Pererab. and add. M, 2001. C.101-10
The problem of human rights and freedoms and citizen took a prominent place in the acts of early constitutionalism - in proclaiming the creation of the United States Declaration of Independence of 1776, which served as the basis for the development and adoption of the US Constitution 1787; In the political manifest of the Great French Revolution - the famous Declaration of Human Rights and Citizen 1789 in the Declaration of Independence of the United States, for example, said "We consider the following truths: all people are created equal and all of them are gifted by their creator with some inalienable rights, which belong to: Life, freedom and desire for happiness. To ensure these rights, among people of the government, borrowing their equitable power from the consent of the managed "are established.
The authors of the French Declaration of Human Rights and Freedoms and Citizen believed that the root cause of social disasters and the ruinity of the government is ignorance and oblivion of human rights or disregard them. The French Declaration of Human Rights and Citizen secured the natural, inalienable and sacred human rights, it indicated that: "People are born and remain free and equal in rights; The purpose of each state union is the provision of natural and inalienable human rights; Freedom is able to do everything that does not harm another; The implementation of the natural rights of each person meets only those defined by the law of the border, which provide other members of the Company using the same rights; The law can only be paid to acts harmful to society, and everything that is not prohibited by law is permitted, and no one can be forced to the action that is not prescribed by law. " In the current and now the declarations were also enshrined freedoms, thoughts, press, conscience, equality of citizens before the law, the immunity of the sacred private property and etc.
History shows that these documents have been formulated meaning and purpose of the democratic legal state, and in those countries where free civil society has been established, great successes have been achieved in the development of democracy and human rights, as well as economics, culture, science and technology.
Under the influence of the American and French revolutions, the concept of human rights has become 19 cent. Common almost in all countries with European culture.
The generally accepted human rights in any country depends on the historical development of its statehood, the nature of the social and political system, the alignment of social forces in the country and in the international arena, from national, religious, cultural, legal traditions, national psychology, finally, from the general political and legal culture population.
The history of Russian statehood clearly shows that the process of its formation and development, as well as on the originality of the political and legal culture, a significant impact of significant influence: first, the features of the country's geopolitical position - between East and West; secondly, its spatial geographical characteristics and natural climatic conditions; thirdly, the multi-ethnic and multicorphism composition of the population; Fourth, life, traditions and religious beliefs of its peoples Potapenkov A.V. Human rights and freedoms in the context of the history of the Russian state // Human Rights in Russia: Declarations, norms and life. M., 1999. P. 132.
Such fundamental concepts in the field of state and law, as a legal state, constitutionalism, democracy, human rights, separation of the authorities, civil society, arose on the basis of political and legal development of Western Europe. Extrapolation of these concepts on Russian state-legal reality, their relatively widespread dissemination occurs much later, in the last third of the XIX - early XX century. The development of these concepts that were the creation of the Western European culture was carried out in Russia mainly by the liberals to which Cavelin, Chicherin, Granovsky, Milyukov, Novgorod and others belonged to.
One of the first defenders of ideas about the equality of all people, about the inalienable rights and freedoms of man was A.N. Radishchev. "A person, occurring at the light, is equal in the whole other: dismadged, Nag, Alchusch, Thgeh," he argued. Radishchev criticized the Russian autocracy, serfdom. His thoughts about the contractual origin of the state during the absolutism of Catherine II were truly a riot of one person against the centuries-old monarchy. In the legislation of A.N. Radishchev wrote: "The state is the Great Mahina, the purpose of which the bliss of citizens ... The state leads in motion two things: morals and laws. The laws are a continuation of the morals ... " Radishchev A.N. Cathedral Op. T. 3. - M., 1952. P. 5, 6
Russian lawyer B.N. Chicherin described the recognition of a person with a free face as the greatest step in the historical movement of civil life and achieving the stage when civil order becomes truly human. He substantiated the need to reform the Russian autocracy and promotion of the country to civil society and the legal state.
Protection of natural legal ideas of freedom and personal rights was reflected in the work of P.I. Novgorodtseva. In his understanding, natural right is born as the requirement of reforms and changes in the existing strictness, acts as an ideal in a ratio of positive right.
Another part of Russian thinkers believing in the conservative direction (Shcherbatov, Uvarov, Solovyov, etc.), criticized the idea of \u200b\u200bWestern European and domestic liberalism. V.S. Solovyov believed that "the basis of the right is freedom as a characteristic feature sign" Solovyov V.S. Morality and right / in the book: Power and Law. From the history of Russian legal thought. M. 1990. P. 97 that "the principle of law requires limit the private arbitrariness in favor of the common good," and from these positions criticized the realities of capitalism and the ideas of socialism.
Thus, under the noticeable impact of advanced European political and legal thought and revolutionary transformations in the United States and in France, natural-legal ideas about the equality of all people, about the inalienable rights and freedoms of a person were distributed in Tsarist Russia.
So, human rights are organically woven into the social activities of people, their public relations, the methods of the existence of an individual. They are a regulatory form of the interaction of people, streamlining their connections, coordinating their actions and activities, preventing contradictions, confrontation, conflicts based on a combination of freedom of individual with freedom of other people, with the normal functioning of society and the state. Such rights as the right to life, the dignity, inviolability of the individual, the freedom of conscience, opinions, beliefs, the autonomy of personal life, the right to participate in political processes, are the necessary conditions for the human life of a civilized society and should be unconditionally recognized and protected by the state. It is necessary to approach the content of human rights and their distribution in society specifically historically. The modern catalog of human rights, recorded in international legal instruments and constitutions of legal states, is the result of a long historical formation of standards and standards that have become the norm of a modern democratic society.
1.2 International Legal Acts of Human Rights
Generally accepted human rights became a leitmotif in modern world: They can be found in constitutions and legislation of almost every state.
The international community under the auspices of the UN is actively engaged in the development of sources of generally accepted human rights, seeking to create a legal framework for their effective protection and assistance to their observance. Mostly generally accepted rights The person was established through the conclusion of multilateral universal treaties.
Initially, the commitment of the global community of the fundamental human rights of a person was expressed in the UN Charter in 1945. It is fundamental because it acts as a kind of "basic law" of the modern international community. In the preamble of the UN Charter, it was said that the peoples of the United Nations were determined to "save the upcoming generations from the disasters of war ... and re-approve the faith in the basic human rights ... and promote social progress and improving the living conditions for greater freedom." In this regard, Art. 1 of the Charter proclaims one of the UN objectives to implement international cooperation in the promotion and development of respect for human rights and the main freedoms for all, without the difference in races, gender, language and religion. The provisions of the UN's Charter on Human Rights are very narrow, so immediately after the establishment of the UN, the question arose about specifying the general provisions of the Charter regarding human rights.
Taking into account, first of all, these provisions were developed and the relevant international documents are developed. The main work of this kind was carried out and is conducted within the framework of the UN and its specialized institutions, primarily the ILO, UNESCO. Part of the mentioned documents of the resolution of international organizations - is advisory. These include the Universal Declaration of Human Rights of 1948, the Declaration on the elimination of all forms of intolerance and discrimination based on religion or beliefs of 1981, the Declaration on the Rights of Persons Proper to National or Ethnic, Religious and Language Minorities, 1992 and other documents.
The most common, generally accepted and authoritative embodiment of the modern doctrine of human rights and human rights is the Universal Declaration of Human Rights, adopted on December 10, 1948, by the UN General Assembly. It represents the most important socio-political and legal document of our time, which has secured on a global scale the fundamental principles and norms that determine the general modern political, socio-economic and spiritual and cultural status of the personality from the standpoint of genuine humanism and democracy. In her preamble it is said that "the recognition of the advantage inherent in all members of the human family, and their equal and inalienable rights is the basis of freedom, justice and the universal world, while negligence and contempt for human rights led to barbaric attacks that indignant the conscience of humanity »Universal Declaration of Human Rights // International Acts on Human Rights: Sat. dock. M., 1998.
This declaration comes from the fact that all people are born free and equal in their dignity and rights (Article 1) and that each person must have all the rights and all the freedoms proclaimed by this Declaration, without any difference (Art. 2 ). It also defines specific personal (civil) and political rights and freedoms, including the right to life, freedom, personal integrity and safety, on the equality of all before the law, to freedom of movement in the country, departure from it and enter it, Citizenship and its change, freedom of thought, conscience and religion, peaceful assembly and associations, to participate in the management of their country and others. Declaration also enshrines many specific economic, social and cultural (spiritual) rights and freedoms, among which the rights to property and Entrepreneurship, labor and free choice of work, social security and recreation, education and participation in cultural life, a worthy standard of living, etc. At the same time, it reminds that each person has and duties to society.
The Declaration is not a legally binding document and has the nature of the recommendation to all peoples and states of the world. Nevertheless, its practical significance is very large. It is based on its basis and in the development of its provisions, legally binding international documents on human rights were adopted. One of the most significant are the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, adopted in 1966 by the UN General Assembly (ratified by the USSR in 1973) the theory of state and law. Lecture course. Ed. M.N. Marchenko. M. 1999. P. 199 .. Although the Covenants are based on the Universal Declaration of Human Rights, the rights covered by them are not identical. Most important lawLocated in both pacts and not included in the Declaration is the right of peoples to self-determination, including the right to freely dispose of its natural wealth and resources. Both Covers consisted of a kind of international human rights code and a citizen, and the participating States committed themselves to adopt the necessary legislative measures to ensure the rights and freedoms provided for in the Covenants.
In the second half of the twentieth century. A significant number of international conventions were adopted on individual groups of human rights and a citizen, among which - the International Convention on the Elimination of All Forms of Racial Discrimination (1966), the Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1984), the European Convention On the protection of human rights and fundamental freedoms (1950). According to these Pacts and the Conventions, the International Human Rights Committee and the European Court of Human Rights were created, designed to follow the compliance with these rights.
One of the fundamental international documents in the field of protection of human rights and freedoms and citizen is - the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter - the European Convention), signed in Rome on November 5, 1950 by Member States of the Council of Europe (ratified and entered In 1954), the originally European Convention was signed by fourteen Member States of the Council of Europe on November 4, 1950 and entered into force on September 3, 1953. After ratifying the first ten states of Western Europe. Russia has signed the European Convention on February 28, 1996 and ratified it two years later by the Federal Law of March 30, 1998. During this period, legislation and law enforcement practice were checked for their compliance with the European Convention and the Council of Europe standards and were adjusted. It is clear that all the shortcomings and inconsistencies could not be eliminated. Part of the reservations formulated in the Federal Law on its ratification are caused by the fact that some of the polling of the European Convention can not yet be implemented for the reasons of a material nature.
The fundamental difference of the European Convention from other international legal acts on human rights is that, on the basis of its provisions, a mechanism for monitoring compliance with the rights and freedoms enshrined in it is created. Until 1998, he was two-stage and consisted of the European Commission on Human Rights and the European Court of Human Rights (hereinafter referred to as the European Court). Currently there is a single court in accordance with the Procedure imposed by Protocol No. 11 to the European Convention. The European Court has the right to accept statements from individuals and legal entities whose conventional rights are violated by the state under the jurisdiction they are located. One of the conditions for the admissibility of individual complaints is the exhaustion of domestic protection. In other words, that the individual complaint be accepted for consideration, the applicant must exhaust all the means of protection, enshrined in national law. Only after that its control mechanism can be involved. In addition, it provides that the State party can convey to the European Court to the issue of any intended violation of the provisions of the European Convention and the Protocols to it by another State party (the so-called "interstate" statement). The decision of the European Court will be final and mandatory for both states.
In this regard, it can be argued that the European Convention with its control mechanism is not interstate, but a suprantee. Control over respect for human rights has ceased to be a purely national, internal affairs of European states that voluntarily subordinate themselves to the jurisdiction of an independent supranational judicial authority, which has the right to make legally binding solutions for them. Moreover, for national vessels and law enforcement agencies, the interpretation of the Convention given by the European Court is also required.
What rights protects the European Convention? First of all, the right to life. In accordance with Protocol No. 6, adopted in 1985, the death penalty in peacetime is prohibited. Where the death penalty still exists, death sentences should be carried out only for the most serious crimes And in accordance with the law. Russia has not ratified Protocol No. 6, adopted in 1985, but at present, the punishment in the form of the death penalty in accordance with the Resolution of the Constitutional Court of the Russian Federation of February 2, 1999 is not appointed, and since 1996, death sentences are not given in Russia.
Article 3 of the European Convention states that no one should be subjected to torture and inhuman or degrading treatment or punishment. The Convention prohibits slavery and forced labor (Art. 4), discrimination (Article 14), establishes that the punishment is possible solely on the basis of the law (Article 7), establishes the right to respect for private and family life (Art. 8), freedom of thought , conscience and religion (art. 9), freedom of expression (Art. 10), freedom of assembly and associations (Art. 11), the right to marriage (Article 12).
One of the fundamental rights is enshrined in Art. 1 Protocol No. 1 - the right to unhindered use by his property. Compliance with this right is particularly important in Russia, where the Institute of Private Property still needs enhanced protection due to its relative novelty.
Special attention should be paid to the fact that the European Court when considering a complaint against the violation of conventional rights solves only one question: whether the norm established by the European Convention was violated as a result of the actions (inaction) of the state. The European Court does not allow essentially arising disputes. It has no right to order the state, for example, to release a citizen illegally contained in custody or to award property to a particular person in the dispute. The European Court has the right to only make a decision on whether the provision that has been created within the state corresponds to conventional standards. However, if he recognizes violation of the European Convention, the state that made it is obliged to bring internal legislation and / or law enforcement practice in line with its norms. This follows from Art. 1, which states that States Parties undertake to comply with the rights enshrined in it.
In addition to this convention, I.I. Lukashuk allocates that the special complex form numerous conventions of the International Labor Organization (ILO). A significant number of human rights conventions are also concluded at the regional level. As part of the Organization of African Unity (OAU), the Organization of American States (OAS), Council of Europe Lukashuk I.I. International law. Special part. Textbook. - M. Publisher Beck, 2001, p. 4 -5.
An important channel for the approval of human rights and freedoms and citizen, as noted by M.V. Baguli, is the organization of safety and cooperation in Europe (OSCE). Constitutional law of foreign countries. / Ed. Baghal M.V., Libo Yu.I., Entina L.M. M., 2004. P. 90-92 In the final act of the Security and Cooperation Meeting in Europe, held in 1975, one of the sections was devoted to human rights and freedoms and contained the obligation of States Parties (including Russia and Russia) respect and comply with these rights. and freedom. Any State Party of this organization has the right to attract the attention of other participating States in diplomatic channels to the facts of human rights violations in any state that is its participant. Cooperation in the field of human rights and freedoms is the content of the concept of "OSCE Human Measurement". On this issue, large conferences in Madrid, Paris, Copenhagen, Vienna, Moscow were held.
But it is worth noting that international acts that establish human rights and freedoms and a citizen have a different legal obligation for the states participating in them. So, the universal declaration is UN resolution; Its provisions are legally optional for states and are recommendations. At the same time, there is a big degree of likelihood that due to the practice of states, the activities of international organizations in the field of human rights protection, national constitutional, legislative and national judicial practice The provisions of the declaration were transformed into the norms of ordinary international law. Legal binding of the Covenants for the Russian Federation implies not from the fact of making them of rights and freedoms into the text of the Constitution of the Russian Federation, and due to the fact that Russia is the successor of the USSR. In this regard, it is also necessary to mention the Convention on the Protection of Human Rights and Fundamental Relations of 1950 and the Commonwealth Convention Independent states On the Rights and Basic Freedoms of Man dated May 26, 1995, which, although they cannot be attributed to the number of contracts that are generally accepted principles and norms, are important for the development of regional cooperation in the field of human rights protection.
Russia took considerable steps to realize the diverse rights and freedoms of a person, although there are still a huge mass of unresolved problems. For the first time, the 1993 Constitution of the Russian Federation consolidated the thesis that "a person, his rights and freedoms are the highest value" (Article 2). But besides the Constitution, human rights and freedom are concretizing and developing in federal constitutional and federal laws that have direct action throughout the Russian Federation.
International cooperation in the field of human rights is not reduced only to the development and adoption of relevant documents and the need to translate the norms contained in them into the internal legislation of the countries participating in the agreements. Such cooperation is necessary in the future, in order to successfully implement States of the assumed obligations and the implementation of international monitoring. To this end, special international bodies have been created, designed to actively promote the implementation of human rights agreements. The process of formation of international legal principles and human rights standards continues now.
1.3 International Legal Standards
Concept, general characteristics
The concept of international legal standards in the field of human rights (MPCH) in the science and practice of the application of international law is not always the same. In some cases, such standards recognize all the heterogeneous norms of international law in the field of human rights and freedoms. Such standards include the rules of international treaties, resolutions of international organizations, political agreements (an example of such an agreement can be the Helsinki Final Act of 1975, documents of the Vienna and Copenhagen meetings), international customs (R.A. Mullerson) Mullerson R.A. Human rights: ideas, norms, reality. M. 2001. P. 22. A similar interpretation of international standards for human rights, only in the "European" interpretation, is proposed by S.A. Gorshkova, which believes that such standards should recognize the legal norms of the Conventions and formed on the basis of decisions of the European Court and the Commission on Human Rights, the case-law, which relies legal system European states Gorshkova S.A.. Standards of the Council of Europe on Human Rights and Russian legislation. M. 2001. p.12.
It seems that it is closer to the correct interpretation of the term "Standard" (from the English. Standart - sample, standard, model adopted for the initial for comparison with other similar objects) Interpretation of international human rights standards as a regulatory minimum determining the necessary and sufficient level State regulation of human rights and freedoms and citizen, as well as the realization of these rights and freedoms with legislatively admissible deviations in one or another situation in the form of exceeding or specifying this minimum.
In other words, standards that are usually expressed in the form of provisions of conventions, recommendations, principles, rules, there are such minimum international legal norms, whose addressee is the entire world community or a group of states that are included in this or that international organization. At the same time, the minimum of such norms means that the volume of its content is that any unreasonable (arbitrary), that is, exercised outside of legal establishments and regulations, a decrease in this volume (the amount of rights, freedoms of man and citizen, provided for by the "standard norm") is considered as Violation of the International Standard, causing those or other international legal consequences.
This is how universal (international) standards of human rights and freedoms and freedoms, and then individual categories of persons - children, women, persons who are in prison, persons responsible for maintaining the rule of law, etc., starting with the Universal Declaration of Human Rights 1948 and two documents of a universal nature - the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, adopted in 1966
International human rights standards, accounting for a part of the general system of protecting human rights, are characterized by a number of specific functions. The main functions of international human rights standards include:
Determination of the list of rights and freedoms related to the category of basic and mandatory participants of the Covenants and Conventions for all States;
The formulation of the main features of the content of each of the rights and freedoms that should be implemented in the relevant constitutional and other regulations of national (internal) legislation;
Establishing the obligations of states to recognize and ensure proclaimable rights and freedoms and the introduction of the most necessary guarantees that determine their (rights and freedoms) reality;
Fixing the conditions of use of rights and freedoms associated with legitimate restrictions, including forns Badalianz Yu.S. Human rights. Lecture course. Ryazan, 2006. p.239-240 ..
The MPCH functions do not directly include the establishment of compliance mechanisms by states of international human rights standards. Nevertheless, this is envisaged by adopting a state or another in accordance with its constitutional procedures of legislative, administrative and legal measures to consolidate, ensure and protect rights and freedoms. Moreover, this commitment is recorded in international and, naturally, in national state acts-documents with the help of ratifying procedures with representative bodies of the state. Failure to comply with the state of such an obligation entails the responsibility provided for by international law. In the case of non-fulfillment by the state of its international obligations in the field of ensuring and protecting human rights and freedoms, we can talk, for example, to attract the opportunities of international judicial bodiesspecializing in human rights (European Court, International Criminal Court, Hague Military Tribunal, etc.)
The literature highlighted the types of international human rights standards. In the circle of participants relevant agreements, standards are regional and universal. Universal standards are recognized worldwide. They are contained, in particular, in the Covenant on Civil and Political Rights. Regional standards operate within a certain territory (European Convention on the Protection of Human Rights and Fundamental Freedoms).
It seems to be appropriate to list the basic standards in the field of human rights, as they recorded in international documents.
Of course, at first it is necessary to mention the right to life. This right is provided for in Art. 6 Covenant on Civil and Political Rights: "The right to life is the inalienable right of every person. This right is protected by law. No one can be arbitrarily deprived of life. " The standard includes norms regulating the purpose of the death penalty. It can be appointed only "for the greatest crimes in accordance with the law, which acted during the commission of a crime and which does not contradict the requirements of this Covenant and the Convention on the Prevention of the Crime of Genocide and Punishment for the Negomizmouth Covenant on Civil and Political Rights // Sat. dock. M., 1998. ". The death sentence can only be carried out by a competent court. The death penalty is not fulfilling against pregnant women, and the sentence is not made for the crime committed by persons under the age of 18. In addition, the Convention on the Prevention of the Crime of Genocide and Punishment for Him prohibits actions (including, of course, the change in national legislation) committed with the intention to destroy, fully or partially, any national, ethnic, racial or religious group as such.
However, these standards were fairly considered by the participants of the Covenant only as basic. For example, Art. 59 of the Criminal Code prohibits the assignment of the death penalty to those who have reached 65 years of age, and all women. But at present, as mentioned above, the death penalty is prohibited in states that ratified Protocol No. 6 to the European Convention on the Protection of Human Rights and Fundamental Freedoms of April 28, 1983, and a moratorium on its application is imposed.
Recommetively approved by the ECOSOC resolution of May 25, 1984 measures guaranteeing the rights of those who are sentenced to death. They declared the right to appeal to appeal, to submit to pardon, the requirement of humanity to bring the sentence to execution and negotiate a number of other points.
It is forbidden to expose people to torture or cruel, inhuman or degrading their dignity or punishment, in particular to put medical or scientific experiences in humans without their consent. This standard is installed in Art. 7 Covenants on civil and political rights and are developed in the Convention against Torture and other cruel, inhuman or degrading treatment and punishment.
Torture in the convention is called "any action that a person is caused by severe pain or suffering, physical or moral, to get information or recognition from it or from it, to punish it for the action that it has committed or a third party or in which they are suspected, as well as intimidate or force it or a third party, or for any reason based on discrimination against any nature, when such pain or suffering are caused by a state official or other person who speaks in official quality, or by their incitement, or with their Legal or silent consent "(Art. 1 of the Convention) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. // Sat. dock. M., 2002 .. There is also noted that "this definition does not include pain or suffering, which arise as a result of legal sanctions, are inseparable from these sanctions or cause them by chance." Torture is prohibited in principle, even in the most exclusive circumstances, including the war (Art. 2 of the Convention). Even the issuance of persons to another state is prohibited, if there are serious grounds to believe that the use of torture may be threatened there (Article 3 of the Convention).
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