The last sharp complication of the situation in the Middle East sharply raised the question of the application of the norms of international law. Foreign Minister Sergey Lavrov outlined his view on emerging legal issues specifically for Rossiyskaya Gazeta in an interview with a member of the Presidium of the Association of Lawyers of Russia, Mikhail Barshevsky.
The discussion about the possibility of using force against Syria again sharply raises the question of international law. Let's talk about it. You must admit that there is a strange right: there are obligations, but there are practically no sanctions for their violation. I'm right?
Sergey Lavrov: International law really does not have the system of coercion to execute and punish for violations that are characteristic of the national law of states. But this feature of his organically follows from the principle of the sovereign equality of states. States are equal in their rights, and therefore to establish any control or enforcement mechanism in relation to the actions taken by them requires their consent. After mankind experienced the horrors of the Second World War, states began to create such a powerful peace enforcement mechanism as the UN Security Council. And they gave this very body the right to decide when force in international relations can be applied in collective interests.
International law does not have a system of coercion that is characteristic of national law.
History international communication has developed another effective mechanism for the enforcement of state obligations - the principle of reciprocity. In the field of bilateral treaties, this principle acts directly: if one party has committed a material breach of the contract, the other has the legal right to suspend or even terminate its execution. If we are talking about such a universal and fundamental principle of international law as the non-use of force, then one cannot but agree that the situation around Syria has once again translated this topic into the category of urgently relevant.
Seventy years ago, the use of force in international relations was common: states only looked for a plausible reason to justify their actions.
After the Second World War, the situation has changed - it is now possible to legitimately use force, either in the case of the exercise of the right to self-defense, or by a decision of the UN Security Council. And the very fact that states, as a rule, do not resort to the use of force as one of the means of implementing their foreign policy interests is a merit of modern international law, the principles of which are reflected in the UN Charter.
True, it must be admitted that from time to time some states are trying, following opportunistic interests, to find exceptions to the general principle of a ban on the use of force. And recently we heard alarming statements about the admissibility of the use of military force to promote our own interests in certain regions.
It is obvious to us that the more a state, by word or deed, undermines the principle of rejecting the threat or use of force, the less it can rely on others to comply with it. This is a dangerous path leading to the destruction of the foundation of modern international architecture. After all, not even the strongest state can develop normally in a situation of chaos, which will inevitably arise as a result of the unrestricted use of force.
If there is a right, then there must be a judicial system that applies it. But there is no international judicial system. Special tribunals are being created, of course, for one reason or another, but this is not a system. Your comment?
Sergey Lavrov: It is difficult to agree with you. But what about the International Court of Justice and the Permanent Court of Arbitration, which are based in the Hague Palace of Peace?
The International Court of Justice is the main judicial body of the United Nations, which has been successfully applying international law for decades. The fact of the existence in the UN system of such an authoritative body, based on the principles of independence of judges and the "representation of the main forms of civilization and the main legal systems of the world", is a factor that gives stability and legitimacy to the entire universal system of collective security.
Decisions and advisory opinions of the court make an important contribution to the determination of the content of international legal norms in various fields, such as law of international treaties, law of the sea, state responsibility, law of international organizations, and maritime delimitation. For our part, we actively use his jurisprudence in solving many practical issues in bilateral and multilateral relations.
We are attentive to calls for UN member states to consider accepting the court’s jurisdiction in accordance with its statute. The USSR, the successor state of which is Russia, traditionally preferred political and diplomatic means of resolving interstate disputes. Accordingly, when joining international treaties providing for the transfer of disputes about their interpretation and application to the International Court of Justice, the USSR, as a rule, made reservations not to recognize the compulsory jurisdiction of the court. At the same time, at the end of the 10th century of the last century, the USSR recalled reservations on the non-recognition of the compulsory jurisdiction of the court in respect of a number of conventions on human rights. Since that time, we have refrained from reservations about non-recognition of the mandatory jurisdiction of the court under multilateral international treaties concluded within the framework of the UN. In 80, Russia recalled the reservations that were made by the USSR at the conclusion of a number of universal conventions on combating various manifestations of terrorism. We consider the removal of these barriers to be an important contribution to the strengthening of the international legal framework for antiterrorist cooperation.
As for the ad hoc tribunals, we are talking about international criminal instances designed to try persons accused of committing crimes against humanity, war crimes.
We believe that the practice of the activities of such tribunals is still far from the ideals of justice. In many cases, they sinned by political commitment, low quality of sentences, duration and extraordinary cost of the process. This is primarily about the International Tribunal for the Former Yugoslavia.
In view of the not very successful experience of the ad hoc tribunals, an attempt was made to create a universal International Criminal Court - the ICC, based on a treaty, that is, on the free will of states. The competence of the ICC includes the most serious crimes of an international character - genocide, crimes against humanity, war crimes, aggression. Currently, the jurisdiction of the ICC is recognized by the 122 state.
The Russian Federation closely follows the activities of this judicial body and cooperates with it in a number of cases. While the results of his work can not be called impressive: for 11 years, there was one conviction and one acquittal. At the same time, the very modest geographical coverage of the cases reviewed by the ICC makes it wary to evaluate its versatility. However, this body is likely to continue to act, and its influence will be increasingly noticeable.
Under our Constitution, in the Russian legal system, international treaties are "stronger" than domestic laws. This is probably correct. But the question is: how many international treaties did we have 30 years ago and how many today?
Sergey Lavrov: According to the Constitution of the Russian Federation (part 4 of Article 15) "the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system." I emphasize that this rule is one of the foundations of the constitutional system of the Russian Federation, enshrined in the Chapter 1 of the Constitution. At the same time, according to the Constitution (the same part 4 of Article 15), "if an international treaty of the Russian Federation establishes other rules than those provided by law, then the rules of the international treaty apply."
In practice, this means that in the hierarchy of legal norms that form the Russian legal system, an international agreement is higher than a federal law or a law of a constituent entity of the Russian Federation. As confirmed by the Constitutional Court of the Russian Federation, the rule of an international treaty has a direct effect in our country - unless its application does not require the issuance of an internal legal act.
It is of fundamental importance that the Constitution of the Russian Federation forms an effective legal basis both for resolving issues within the internal competence of our state and for its active participation in international life. As the globalization process develops, the field for the collective lawmaking of states is steadily expanding, and the line between "internal" and "international" is increasingly blurred.
Now essentially your question. Yes, the number of international treaties - in general in the world and with the participation of Russia - has increased by orders of magnitude compared with the Soviet period and continues to grow steadily. The Russian Federation annually concludes more than 200 only with bilateral international treaties. The Foreign Policy Archive of the Russian Federation contains official texts about 20 of thousands of international treaties concluded, including during the existence of the USSR.
In our opinion, this is a steady trend, conditioned by the objective realities of international life. The role of international relations as a global regulatory factor increases markedly, their structure becomes more and more complex, covering the bilateral, subregional, regional and global levels. It is no secret that, by definition, activities in some areas are international in nature and can only be regulated to a very limited extent at the national level. These include, for example, the use of modern information and communication technologies and outer space; disarmament and the fight against international terrorism; human rights and environmental protection.
As you know, Russia puts at the forefront respect for and compliance by all states with the norms of international law, it itself seeks to faithfully fulfill its international obligations - without this it is impossible to imagine international communication and the development of international cooperation in various fields, thereby contributing to solving global problems and improving the manageability of the international system. This, of course, contributes to the provisions of the Constitution of the Russian Federation, enshrining the supremacy of international law over domestic law.
We believe that it is necessary to pay tribute to domestic specialists who developed the Constitution of the Russian Federation, the 20 anniversary of which we celebrate this year. From the point of view of international relations, it is certainly directed towards the future.
Each international treaty is a loss of a part of state sovereignty - there is such a point of view. Can you argue?
Sergey Lavrov: A sovereign state develops and adopts national laws and at the same time participates in international life on an equal basis, deciding for itself the question in which areas and with which subjects of international law it is interesting or necessary to interact.
The conclusion by a state of an international treaty is a sovereign act aimed at achieving legal certainty, establishing mutual rights and obligations with other states. Of course, we mean those cases when this process is carried out of free will, without external intervention.
International law allows for the possibility of termination of an international treaty, withdrawal from it. These issues are governed by the Vienna Convention on the Law of International Treaties 1969 of the Year and the provisions of the international treaty itself.
Finally, sovereign states themselves determine the internal procedure, under which they decide on the obligation of international treaties for them. In our country, this procedure is established, in particular, by the Federal Law "On international treaties of the Russian Federation". At the same time, the process of making such decisions is not the exclusive prerogative of the executive branch. If the contract contains other rules than those established by federal laws, the decision on Russia's consent to be bound by the contract is made in the form of a federal law, the draft of which according to the Constitution (Articles 104, 105 and 106) is considered by both chambers of the Federal Assembly. And only if approved by them is signed by the President of the Russian Federation.
If we talk about the obligation to "act within the framework of the law", then this is an indispensable condition for restricting arbitrariness, dictatorship of force and, thereby, a guarantee of sovereign rights, and not their restriction. In this regard, Russia has consistently advocated strengthening the legal foundations of the world order. In the approved President V.V. Putin in February of this year, the new edition of the Concept of the foreign policy of the Russian Federation emphasizes that maintaining and strengthening international legality is one of the priorities of our country’s activities in the international arena. We presume that the rule of law is intended to ensure the peaceful and fruitful cooperation of states, while respecting the balance of their often divergent interests, to guarantee the stability of the world community as a whole.
Is globalization a common economy and common law?
Sergey Lavrov: Globalization is above all an objective reality. This term reflects large-scale changes that affect all spheres of human life - politics, economics, culture, international relations. The modern world is becoming increasingly interdependent and less predictable, events are moving faster and faster. International relations are becoming increasingly complex, multidimensional.
We are witnessing the acceleration of the processes of regional integration, the formation of regional associations, within the framework of which part of the national authority is transferred to the supranational level. The most obvious example of this phenomenon is the European Union.
Integration processes are actively developing in the Eurasian space, primarily in the framework of the Customs Union and the Common Economic Space of the Troika of Russia, Belarus and Kazakhstan, with the prospect of the formation of the Eurasian Economic Union by 1 January 2015, which represents a new level of integration. The intention to join this union has been announced by our partners - Kyrgyzstan and Armenia, other CIS states are showing interest in these processes. By the way, we are ready for steps towards rapprochement between the Eurasian structures being created and the European Union in the context of implementing the idea of a common economic and humanitarian space from the Atlantic to the Pacific Ocean - of course, on the basis of equality and mutual respect. The basis for this is first of all the norms of the WTO.
However, all this does not detract from the role of the state as the main subject of international law. By the way, in the European Union foreign policy is a prerogative of primarily national states, although its members seek to strengthen the unity of their ranks in the international arena. The global financial and economic crisis has confirmed that states retain in their hands the main levers of influence on the situation, preventing its spinning out of control.
The activities of the G20 are proof of this: at the peak of the crisis, its member countries agreed on agreed measures to support the global economy, ensure strong, balanced and inclusive economic growth and sustainable development. The role of the G-20 as an important mechanism in the overall efforts to strengthen the system of global governance was confirmed by the outcome of the St. Petersburg Summit of this association.
It is also obvious that at the stage of the formation of a polycentric international system, the role of diplomacy as a mechanism for coordinating the interests of various states, large and small, increases substantially in defining the contours of the new world order, which should be fair, democratic, reflecting the cultural and civilizational diversity of the modern world.
So I would not be in a hurry to conclude about the replacement of states by a certain unified scheme. So far there is no reason for this.
The specific question is what can be done with regard to Syria if it does not fulfill the conditions of the international convention banning chemical weapons?
Sergey Lavrov: On September 14, Syria handed over to the depositary - the UN Secretary General a document on the country's accession to the 1993 Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction - the CWC. At the same time, Damascus announced that it would temporarily apply the Convention right away - until its formal entry into force for Syria on October 14. This means that all the provisions of the CWC are already fully applicable to Syria.
Given the urgency of the situation, the Executive Council of the Organization for the Prohibition of Chemical Weapons (OPCW) promptly made a decision defining the parameters and time limits for the process of the destruction by Syria of its chemical arsenal under the supervision of OPCW inspectors.
The OPCW’s decision contains a clause on possible actions in response to non-compliance - such cases are submitted by the Director General of the Technical Secretariat (TS) of the OPCW for discussion by the Executive Board of the organization, which, in turn, decides whether there are sufficient grounds for submitting the relevant dossier to the Security Council UN. This procedure is entirely based on the rules of the CWC, namely the paragraph 36 of its article VIII, and in this regard is not a novelty.
Thus, in the case of Syrian chemical disarmament, the central role of the 1993 Convention of the Year and of the Organization protecting it is emphasized. The UN’s role in this process is to support the OPCW in fulfilling its mandate. The resolution of the UN Security Council 2118 is aimed at this. Accordingly, if specific and verified information is submitted to the Security Council on non-compliance with the requirements for the destruction of chemical weapons or the use of poisonous substances by anyone, then it will act and make decisions in accordance with its rules and procedures, including possible enforcement measures under chapter VII of the UN Charter.
At the same time, it is fundamentally important that these requirements apply not only to the regime in Damascus, but also to the opposition. I will also note that the 2118 resolution prohibits the transfer of chemical weapons or its components to non-state actors and imposes a special responsibility for the observance of this prohibition on countries neighboring Syria.
September 19 Syria transmitted the first information on its chemical weapons to the OPCW. Experts rated it as quite adequate at this stage. Therefore, there is no reason to suspect Damascus in bad faith. More detailed information in accordance with Article III of the CWC is expected from Syria by the end of October.
International agreements work quite well in the field of maritime law, intellectual property rights, partly on the enforcement of arbitral awards. And why can not this be achieved in criminal law? After all, there are elements of a crime that are the same in the criminal code of any country. Murder, rape, tax evasion, terrorism. Then the problem of issuing criminals would disappear. Every state would be obliged to judge such a criminal.
Sergey Lavrov: It is impossible to say that international legal regulation is completely absent in this area. There are a number of multilateral and bilateral treaties in this area. For example, the Russian Federation is a party to the European Convention on the Extradition of 1957 of the Year, which has 50 members. There are also bilateral extradition treaties.
However, the issue of extradition for ordinary crimes is not as simple as it may seem. First, many states, including Russia, do not give out their citizens to foreign states. Secondly, in the sphere of financial crimes there are some difficulties - non-payment of taxes to one state is not a crime for another. Thus, the European Convention on Extradition referred to indicates that extradition for financial crimes is made only if the parties to the contract have made a special decision about this. Thirdly, there are crimes with political overtones. For example, all states declare their commitment to the fight against terrorism in all its forms and manifestations. However, often a terrorist operating on the territory of one state is considered a fighter for independence or a victim of political persecution in another. The adoption of a universal convention on combating terrorism has been hostage to these contradictions for many years. Fourthly, even if a particular case does not relate to the “difficult situations” described above, the state may refuse to extradite if it considers that the extradited person will be subjected to the state demanding extradition, cruel treatment, torture or other human rights violations. The failure of a person on such a basis is an international obligation of the state to protect human rights.
In view of all these and other factors, states prefer to decide on the issue of extradition in each specific case, without tying themselves up with strict international obligations.
At present, the UN Commission on International Law, a subsidiary body of the UN General Assembly that deals with the codification and progressive development of international law and has prepared a draft of a number of universal conventions, is studying the issue of the obligation to try or extradite (aut dedere aut judicare). However, its consideration is not easy, and the possibility of developing a universal convention on this subject is not yet visible.
You have your own brilliant institute of MGIMO, and where else do you get the frames from?
Sergey Lavrov: Thank you for such a high appreciation of MGIMO. We fully share it. Along with the Diplomatic Academy of the Ministry of Foreign Affairs of Russia, which we also highly appreciate, MGIMO plays a key role in the training of young specialists for the Russian diplomatic service.
At one time, MGIMO held almost a monopoly position as a forge of Foreign Affairs personnel. The times have changed, and we recruit a considerable number of graduates from other universities to work in the Foreign Ministry. Most of them are major metropolitan and regional universities that can provide high quality training for students with the specialization we need - international relations, international law, international economic relations, international journalism.
This year, for example, 35 graduates from MGLU, MSU, ISAA, RUDN, RSUH, SPbU, MSLA were hired at the Foreign Ministry. In previous years, graduates of such major universities as Nizhny Novgorod, Kazan, Novosibirsk, Voronezh, Kuban became our colleagues.
When recruiting young specialists, we primarily look at the results of the applicant's studies, the core orientation of his training, and also take into account the results of additional testing in two foreign languages at the Higher Courses of Foreign Languages of the Ministry of Foreign Affairs of Russia.
Other things being equal, we give preference to graduates who speak rare languages and have successfully completed practice in one of the departments of the Ministry of Foreign Affairs.