Enigma of the Constitution of Russian Federation 1993: “Generally Recognized Principles and Norms of International Law”

Abstract

The International law, being the independent legal system, has essential peculiarities, which are not manifested merely by the availability itself of the core component — the relevant system of its principles. The article explores very specific aspect related to the “generally recognized principles and norms of international law” as a category of legal science, in an atypical perspective of finding the origins of its inclusion into the Russian legal system basing on the grounds of analysis of domestic law and effective trends of international practice in this regard. The term and the category itself ‘generally recognized principles and norms of international law' have become an integral part of the Russian contemporary jurisprudence and positive law in a whole due to relevant incorporation thereof into provisions of the Constitution of the Russian Federation, 1993. They constitute an important layer in the history of constitutional evolution of our state, which, however, has not yet received due attention in legal literature. Despite the wide-spread use of the afore-referred term in science and positive domestic law both in the Soviet Union and nowadays Russia, the scholars as far as the international law, have not till to date defined the substance and scope of the ‘generally recognized principles and norms' as part of the said system of law nor juxtaposed the same with other categories and notions immune to International Law. Meanwhile, the said term continuously coexists in international law and its research along with other concepts, also covered by the range of designations pertaining to principles — ‘fundamental principles', ‘general principles of law recognized by civilized Nations', jus cogens, etc., which fact, in turn, requires appropriate orientation. The present piece, having relied upon the historiographical approach and theoretical positions substantiated by international legal science, is deemed to attempt to elucidate some queries related to the core issues regarding the subject-matter of the article — the ‘generally recognized principles and norms of international law'- and its constituent elements, as well as its relationship and links with other afore-referred phenomena, i.e. “fundamental principles of international law”, firstly, and the norms of jus cogens (‘peremptory norms of general international law'), secondly. This approach allowed to penetrate into the essence of the analyzed categories. The outcome of the work of the UN International Law Commission (UN IL Commission) related to the topic of ‘jus cogens' is a matter of special attention in the course of analysis.