Acts of international judicial bodies as a factor in the convergence of national legal systems

Churkina Liudmila PhD in Law Associate Professor; Department of International Law; Ural State Law University named after V.F. Yakovlev 620089, Russia, Sverdlovsk region, Yekaterinburg, Zwilling str., p. 58, sq. 115 lch2015@mail.ru

Introduction

Interstate cooperation on the convergence of national legal systems has a long history and covers a wide range of areas of international relations. In the context of globalization, the process of cooperation between states in all spheres of human activity is accelerating, which leads to the interaction of national legal systems. The process of convergence of law leads to an increase in uniform and unified norms and to the establishment of similar regulation in some areas, which inevitably entails the need for convergence of legal norms in other areas of interstate interaction.

Issues related to the convergence of national legal systems have often been the subject of scientific discussions. T. Ya. Khabrieva in her work "Harmonization of the legal system of the Russian Federation in the context of international integration: modern challenges" explores the features of the process of convergence of legal systems in integration associations, but some theses seem debatable. Firstly, it is a provision on the possibility of convergence only "within the framework of homogeneous legal systems and families", and secondly, the statement that the convergence of legal systems of states "differing in their socio-economic essence" can be carried out only within limited limits ^[1]. These conclusions are inconsistent with international practice. In particular, the legal systems of the States parties to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 belong to various legal families, in particular, the Romano-German and Anglo-Saxon. Moreover, the member States of the Council of Europe have different economic levels, which does not hinder the process of convergence of national legal systems.

Yu.S. Bezborodov in his works defines international legal methods and forms of convergence of the legal systems of states, focusing on the processes of convergence of the legal systems of the states of the post-Soviet space and the Asia-Pacific region ^[2]. Supporting the opinion of Y. S. Bezborodov, the author of the article believes that the convergence of the legal systems of states is a special area of interstate cooperation, which operates through international legal means with the aim of mutual influence of national legal systems. These tools include international judicial institutions, which are used to interact with national legal systems.

The influence of international courts on the process of convergence of legal systems of states has been studied in the scientific works of such scientists as H. I. Gadzhiev, A. I. Kovler, T. N. Neshatayeva, V. V. Starzhenetsky, and others. H. I. Gadzhiev analyzes the topic of convergence of national legal systems, emphasizing the special importance of international judicial law enforcement in this process ^[3]. International justice and its role in integration processes are studied in detail in the works of A. I. Kovler^[4]. V. V. Starzhenetsky considers the issue of convergence of national legal systems under the influence of the law enforcement practice of international courts ^[5]. T. N. Neshatayeva evaluates the influence of the legal positions of international courts on the development of international and national law using the example of the Court of the Eurasian Economic Union ^[6].

In this article, based on the dialectical method of scientific knowledge, logical, comparative legal research methods, as well as methods of analysis and synthesis, induction and deduction, the author conducts a comprehensive analysis of the features of international judicial practice, primarily the European Court of Human Rights and the Court of the Eurasian Economic Union, and the impact of the decisions of these courts on the process of interaction and the interpenetration of national legislations.

The main function of international courts is the interpretation of the norms of international law for uniform law enforcement and the creation of common standards for all subjects of international legal relations. The role of international courts is gradually but steadily increasing in the development of international law, in the resolution of international disputes, the formation of international standards in a particular area, and, as a result, the convergence of national legal systems.

Initially, international judicial bodies were established to resolve disputes between States and interpret international treaties (for example, the International Court of Justice). Later, international judicial institutions appeared, specially created to deal with certain problems of international law. These include the International Military Tribunal in Nuremberg, the International Military Tribunal for the Far East, the International Tribunal for the Law of the Sea, the International Tribunal for the Former Yugoslavia, and the International Criminal Court. The field of human rights protection is one of the most priority areas of interstate cooperation. International judicial bodies established to protect human rights, such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human and Peoples' Rights, are of particular interest because they have a monitoring system. In addition, these courts are considered as one of the mechanisms for the formation of unified international standards, the implementation of which requires the interaction of national legal systems of States that are members of international organizations. It is within the framework of these organizations that international human rights courts are established in order to influence national legal systems and ensure their convergence. International courts in the economic sphere should also be mentioned. These include the Court of Justice of the European Union, the Economic Court of the Commonwealth of Independent States, and the Court of the Eurasian Economic Union. These permanent courts of integration associations are designed to monitor the uniform application of binding contractual acts and resolve disputes over their interpretation ^[4].

General characteristics of the acts of international regional judicial bodies as a means of bringing the legal systems of States closer together

Currently, various mechanisms can be identified that influence the process of convergence of national legal systems. These include the conclusion of international treaties ^[1], the development of soft law norms within international organizations ^[7], and the creation of a system of supervision and control over compliance with international obligations.

As V. V. Starzhenetsky rightly notes, when bringing together the legislations of different states, it is not intended to abandon the specifics of national legal traditions, it is more important to identify discrepancies and regulatory features in specific legal systems and take them into account in the application process, in particular, when referring to the norms of legislation of other states ^[5].

In this case, an indispensable role is played by international courts, which are able to most effectively identify both similarities and differences in the legal regulation of legal relations of the same circle in different States when resolving specific disputes. Accordingly, international courts are defined as one of the main instruments for the formation of uniform legal standards at the international level and ensuring the convergence of national legal systems.

Starzhenetsky identifies several factors determining the possibility of changing national legal systems by international courts, including the erga omnes effect of the decisions of the International Court of Justice, which determines the systemic consequences of the precedent of the International Court of Justice, manifested in the behavior of States under the jurisdiction of the International Court of Justice. Despite the fact that the decision of the International Court of Justice is binding only on the parties to the dispute, the legal consequences of decisions taken by the International Court of Justice also arise in relation to other Member States, since this decision demonstrates a single legal standard that the International Court of Justice will subsequently apply in other similar cases, regardless of the composition of the disputing parties. This applies both to the decision of the International Court of Justice on the resolution of specific cases and to the advisory opinion ^[5].

T. N. Neshatayeva considers the act of the International Court of Justice as a rule of conduct for subjects of a disputed legal relationship arising as a result of efforts to establish a uniform understanding of the current legal norm. The Court does not create a specific legal norm, but formulates a rule that in the future, through case law, becomes a common norm or through progressive development is formalized into a statutory norm ^[6].

The legal positions of the International Court of Justice on the interpretation of international law are applied in the process of considering cases by international and national courts, which refer to the rules set out in the legal position.

Under the influence of acts of international courts, changes are taking place in various branches of law, institutions and law enforcement practices of the Council of Europe member States. A similar situation is developing in the countries of the European Union and the Eurasian Economic Union.

International regional courts in the field of human rights are of great importance in the process of convergence of national legal systems, since, as already mentioned, the specifics of cooperation between States in this area are predetermined by the system of monitoring and facilitating the implementation of international human rights treaties.

Such international courts include, first of all, the European Court of Human Rights, established under the Council of Europe. As Kh. I. Hajiyev correctly noted, "the influence of the Court affects every jurisdiction by harmoniously influencing the legal system" ^[3].

Acts of the European Court of Human Rights in the process of convergence of legal systems of States

The member States of the Council of Europe are implementing the necessary reforms in accordance with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "Convention"), thereby introducing uniform standards for the protection of human rights into their legal systems. The European Court of Human Rights (hereinafter referred to as the "European Court"), applying certain principles of interpretation of the norms of the Convention, establishes and consolidates uniform standards for the European legal space ^[5].

The convergence of the national legal systems of the Council of Europe member States has its own peculiarities. Firstly, if the participating States are obliged to "ensure to everyone the rights and freedoms defined in section I of the Convention" (article 1 of the Convention), then they are equally obliged to ensure the uniform application of the Convention in accordance with the interpretation given to it by the European Court of Justice ^[8]. Secondly, the precedent practice that has been developing for a long time has a great impact on changes in legislation and law enforcement practice of States. Thirdly, an effective mechanism for monitoring the execution of judgments of the European Court of Justice, provided for in article 46 of the Convention, ensures uniform human rights standards in the Council of Europe States, which automatically leads to a convergence of national legal systems.

The European Court's finding of a violation of the Convention imposes certain legal obligations on the respondent State to take measures of an individual and general nature that can effectively prevent further violations of the Convention, influence the domestic law of European States and promote the convergence of national legal systems. It should be noted that the obligations of States are based not only on article 46, but also on the general principles of international law, in particular, on the principle of conscientious fulfillment of international obligations.

It is obvious that the legal consequences of the European Court's rulings for the respondent State may vary due to the specifics of the legal systems of the States parties to the Convention. However, individual and general measures are discussed during debates held during special meetings of the Committee of Ministers of the Council of Europe, representatives of the State and employees of the Department for Supervision of the Execution of Judgments of the European Court of Justice, which assists the Committee of Ministers in ensuring control over the execution of judgments of the European Court. The Department develops proposals for the adoption of appropriate measures of an individual and general nature, taking into account the domestic legislation of the respondent State and based on practice in other States parties to the Convention, thereby supporting uniform standards in the field of fundamental human rights and freedoms in European countries.

In this regard, the institute of pilot judgments of the European Court of Justice, created with the aim of improving the system of introducing European standards into national legal systems, is of interest. This institution has a special advantage because it allows the European Court to identify a systemic problem of human rights violations by a particular State that requires a comprehensive solution. Within the prescribed period, the State is obliged to take appropriate measures immediately, without postponing the necessary changes or reforms to a later date.

It is important to note that the convergence of the legal systems of the States parties to the Convention is also facilitated by the use by the European Court of Justice of an in-depth analysis of legal approaches to solving problems in various jurisdictions of the Council of Europe. In particular, the practice of the European Court of Justice on access to justice has had an integrative impact on the legislation of the member States of the Council of Europe.

In each State, there are national peculiarities in the perception of the right to access to a fair trial, provided for in article 6 of the Convention, in terms of the concept of "criminal charges".

The European Court does not limit itself to considering the question of whether the criminal legislation of the State qualifies the act in question as criminal or not ^[9]. If the act of which the accused is accused is classified as criminal under national law, the Court will consider that article 6 is applicable. If domestic legislation does not consider the act criminal, but qualifies it, for example, as disciplinary, the Court evaluates domestic legislation in terms of its compliance with the provisions of the Convention and examines the general practice of the States parties to the Convention, compares the legislation of a particular State with the provisions of the legislation of other countries and draws a conclusion based on the general practice of the member States of the Council of Europe.

The autonomous interpretation of the basic concepts of the Convention allows the European Court to assess the legislation of States in terms of its compliance with the provisions of the Convention. Key concepts should be applied based on established case law, without taking into account definitions established in national legal systems. Moreover, A. I. Kovler notes that the discovered new elements of the rights provided for by the Convention, "still unknown to us as of today, will require appropriate implementation in national legal systems" ^[10].

One cannot but agree with M. L. Entin that such an approach is aimed at forming a unified legal order on a continental scale. Human rights are more or less present in most emerging legal relationships. Therefore, integration in the field of human rights protection is equivalent to a contribution to ensuring legal integration in general ^[11].

Today, the convergence of national legal systems is taking place not only within the framework of the Council of Europe, the European Union, but also other intergovernmental associations, in particular, in the Eurasian Economic Union.

Acts of the Court of the Eurasian Economic Union in the process of convergence of legal systems of States

One of the important factors for the successful convergence of the legal systems of the member States of the Eurasian Economic Union are the acts of the Court of the Eurasian Economic Union (hereinafter referred to as the "EAEU Court"). The purpose of the latter is, in accordance with the Statute, to ensure the uniform application by the member States and the Union's bodies of the Treaty of May 29, 2014, international treaties within the framework of the Eurasian Economic Union, international treaties of the Union with a third party and decisions of the Union's bodies.

The acts of the EAEU Court affect not only the achievement of the Court's main statutory goal – ensuring uniformity of law enforcement practice in the member States of the Union, but also the process of convergence of national legislations, ensuring the interaction of the legal systems of the states of the Eurasian Economic Union in order to form a single legal space within the Union.

Let us turn to the advisory opinion of the Court of December 7, 2018 on the application of the Eurasian Economic Commission with a request to clarify paragraph 2 of Article 97 of the Treaty on the Eurasian Economic Union of May 29, 2014 regarding the employment of professional athletes who are citizens of the member States and the possibility of establishing quantitative restrictions in national legislation for this category of persons in the exercise of work experience. In its advisory opinion, the Court formulated the legal position that, in accordance with paragraph 2 of Article 97 of the EAEU Treaty, the member States assumed obligations not to impose or apply to workers of the Member States restrictions established by their legislation in order to protect the national labor market, with the exception of restrictions established by the Treaty itself and legislation. Member States in order to ensure national security and public order, and extended its effect to professional athletes.

The advisory opinion of the Court was accepted by the Russian Federation. By orders of the National Ministry of Sports, quantitative restrictions have been lifted on professional athletes who are citizens of the Union member States who have the right to compete for national sports teams of their countries (Decree of the Ministry of Sports of the Russian Federation dated February 13, 2019 No. 109 "On Amendments to the Order of the Ministry of Sports of the Russian Federation dated July 14, 2015 No. 732 "On approval of restrictions on the participation of athletes who are not eligible to compete for the national sports teams of the Russian Federation in the All-Russian sports competitions in the sport of football""; Order of the Ministry of Sports of the Russian Federation dated December 3, 2019 No. 1022 "On Amendments to the Order of the Ministry of Sports of the Russian Federation dated July 14, 2015 No. 732 "On Approval of restrictions on the participation of athletes who are not eligible to compete for sports teams of the Russian Federation in All-Russian sports competitions in the sport of football"").

This case is a vivid example of the uniform application by the member States of the Union's law regarding the observance of freedom of movement of workers within the framework of the Eurasian Economic Union.

Conclusion

The process of convergence of national legal systems is part of an organized effort aimed at ensuring the functioning of national legal systems and their interaction.

The conducted research on the activities of international judicial bodies suggests that the need for a uniform interpretation of international law norms is a crucial factor in ensuring the effectiveness of interaction between national legal systems. A special role in this process belongs to international courts, which, when considering specific cases, create uniform law enforcement and uniform standards for all subjects of international legal relations.

The law enforcement practice of the Court of the Eurasian Economic Union and the European Court of Human Rights, which forms common international standards in international economic activity and the field of human rights protection, has a beneficial effect on the interaction of national legal systems.

The convergence of legal systems contributes to the improvement of interstate cooperation on various issues, and makes it possible to improve national legislation. It is obvious that international judicial practice is the most effective means of interaction between States in regulating certain relations.