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Shapsugova Marietta D.
Institute of State and Law, Russian Academy of Sciences Ph.D. in Law, Associate Professor, Senior Researcher ORCID: 0000-0002-3741-0519 DOI: 10.24411/2520-6990-2020-11379
RUSSIAN-TURKISH CONFLICT, IN THE CONTEXT OF HUMAN RIGHTS AND BUSINESS
CONTRACTS
Abstract
The article discusses the consequences for the business of the Russian-Turkish conflict of 2015 in the conditions offreedom of contract.
Freedom of contract is a fundamental value. Its origins are native to the human right to act at one's discretion, to freely enter into relations with other people. However, often this freedom is limited by the interests of the state.
Keywords: human rights, business contracts, international law, international private law
As we can see from the current situation, human rights highly depend on the political context.
After Turkey shot down the SU24, Russian policy towards Turkish citizens was changed. From scratch without any official order, or changing the legislation, Turkish citizens are no longer pass through the border into the territory of the Russian Federation.
From the end of 2015, Turkish citizens cannot cross the Russian border yet without a visa. The order of entry to the Russian Federation has not changed.
The principle of freedom of contract is one of the basic principles of civil law and, at the same time, the most important principle of doing business. It takes its origins in the idea of equality and freedom of entrepreneurial activity. However, this idea is the relationship between human rights, and the civil law methodology is not always observed in legal regulation and in scientific research.
By Art. 421 of the Civil Code of the Russian Federation, the freedom of contract implies that: 1. The subjects are free to conclude a contract; 2. The Parties may enter into a contract as prescribed and not prescribed by law or other legal acts; 3. The Parties may enter into a mixed agreement; 4. As a general rule, contract terms are determined at the discretion of the parties.
Freedom of contract is that the parties are free to enter into a contract and determine its content. Thus it is never absolute.
Limitation of freedom of contract has one of the three objectives: the protection of the weaker party, to protect the interests of creditors, protection of the interests of the state, in a concentrated form that expresses the interests of society.
The basic principle of contract law - freedom of contract is precisely the freedom of expression of the will, i.e., freedom of expression. From the Resolution of the Plenum of the High Court of the Russian Federation of 14.03.2014 № 16 "On freedom of contract and its limits" can make a generalized conclusion that the interpretation by the courts, and taking into account the meaning of provisions of the pledged legislator may limit action dispositive rules and expand the action imperative.
The principle of party autonomy - as the Institute of Private International Law is an opportunity to parties to a contract to choose the law applicable to their rights and obligations under the contract (Art. 1210 Russian Civil Code). The principle of party autonomy of some
scholars regarded as a manifestation of freedom of contract — choice of law and reality-based and determined by substantive law. By itself, the choice of law is aimed at establishing the content of the contract by reference to a particular legal system and therefore has a substantive character. Choice of law derived from the content of the rules on freedom of contract. Both principles and autonomy of will and freedom of contract are a manifestation of legal freedom, but the amount of it provided each of them is different. The principle of freedom of contract is the substantive nature. It allows the parties to define the content of the contract. The principle of freedom of contract in the domestic sphere is limited to the limits established by domestic law dispositive.
The principle of freedom of contract in the international private law sphere is limited to the limits established discretionary rules chosen by the parties under the principle of party autonomy or the objectively applicable law.
The main limiters discretion of the parties in private international law is a norm of direct application (mandatory rules of Art. 1192 of the Civil Code), the reservation on a public order (foreign law in exceptional cases does not apply when the consequences of its use are clearly contrary to the fundamentals of the rule of law of the Russian Federation, Art. 1193 of the Civil Code), retaliation (Art. 1194 Civil Code).
Freedom of contract implies the choice of rules of conduct in the legal system. Autonomy will act at the level of the choice of legal systems.
Do not break the sovereignty of the state, understood as inherent to the rule of the state on its territory and independence in international relations, the choice of the applicable foreign law by the parties to the contract? The question ambiguous, eventually having at a base in the case of treatment of the parties in the state courts to resolve the dispute. Ultimately, the application of foreign law by the courts is not a sacrifice of sovereignty and not even an act of courtesy, but an act of justice and fairness.
These rules apply in normal traffic, in extraordinary conditions of civil turnover lives according to other laws. The balance of public and private changing towards the predominance of the public narrows the legal space, regulated by dispositive, freedom of contract, the autonomy of the will for reasons of limited availability of public interests. In extraordinary conditions, freedom of contract, other principles regulating the disposition maybe for the legislator luxury.
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For a long time, Russia exists in terms of sanctions and anti-sanctions that serve the objective obstacles in the implementation of the principle of freedom of contract. This anti-sanctions or response can not be explained by the principle of reciprocity since the principle of reciprocity has a completely different meaning.
Reciprocity in private international law means that the foreign law to be applied in the Russian Federation regardless of whether used in the respective foreign country to the relations of such Russian law, except in cases where the application of foreign law on the basis of reciprocity required by law. In the event that the application of foreign law depends on reciprocity, it is assumed that it exists, unless proven otherwise (Art. 1189 Russian Civil Code).
Retaliation is the reverse side of reciprocity. There are reciprocal restrictions imposed by the Government of the Russian Federation in respect of the economic and moral rights of citizens and legal entities of those states in which there are special restrictions on the property and personal non-property rights of Russian citizens and legal entities. (Art. ll94 Russian Civil Code)
Can the parties to a contract to manage the risk of changes in legislation by including in the contract so-called "stabilization clauses" that have reservations about the immutability of elected law? Parties through the reservation preclude future changes to the favorites tend to make them null and void in respect of itself. In the literature, it was suggested the illegality of such an approach, as the parties, by law, subordinate their contract a certain legal system, and an attempt to "freeze" for yourself this legal system at the time of signing of the agreement means "obstruction of exercise of the sovereignty" of the state.
Domestic legislation in terms of sanctions can not be a reliable support for the restoration of private interest.
The international community has born an understanding of non-compliance sanctions international law as an infringement on the sovereignty of the state, which affects all ordinary citizens.
This opinion its report in September 2015 for the first time expressed the UN Special Rapporteur on the question of the negative impact of unilateral coercive measures on the enjoyment of human rights Idris Jaza-i'ry drew attention to the fact that any unilateral coercive measure imposed on any country, it runs counter to the next provisions of the International Bill of Human Rights, or peremptory norms and other requirements of customary law. Such measures are, in varying degrees, have negative implications for the implementation of any of the innocent people of their human rights: political, economic, social, and cultural. The assessment of these effects must be primarily aimed at identifying the possible prejudice to the rights to life, health and medical care, an adequate standard of living, nutrition, education, employment, housing, and development.
The civil rights and freedoms of entrepreneurial activity have origins in the idea of human rights and liberal values. These values are, obviously, going through a crisis. It is about changing the balance between private and public. Conflict of human rights and the idea of public safety, individual and collective rights (which include and safety) - cross-sectoral issue, assumes particular importance in terms of inter-state confrontations. Indeed, if we look at the pyramid of
needs Maslow, that security is a basic need. Should the basic need for safety to create a background for economic activities? How to assess the adequacy of the response to external stimuli, whether it is a security risk, and if so, to what extent?
There is a crisis of human rights theory, liberal ideas, much of the underlying methodology of the civil law.
According to para. 5, Art. 1 of the Russian Civil Code limits the movement of goods and services that may be introduced in accordance with the federal law, if necessary for the safety, protection of human life and health, environmental and cultural values.
Last month, the Russian President signed two decrees, the grounds of security, restricting the freedom of contract and the subject and object.
November 8, 2015 the President signed a decree № 553 "On some measures to ensure the national security of the Russian Federation and the protection of Russian citizens from criminal and other illegal actions", according to which, organizations and individuals under the jurisdiction of the Russian Federation, its activities proceed from the fact that after the entry into force of the Decree of Russian airlines temporarily prohibited from air transport (including commercial) citizens from the territory of the Russian Federation on the territory of the Arab Republic of Egypt, except in the case of the air traffic (including commercial) Citizens of the Russian Federation, sent by state authorities of the Russian Federation and federal state authorities on the territory of the Arab Republic of Egypt for official purposes (claim 1).
Tour operators and travel agents recommended (paragraph 2 of the Decree) for the duration of the ban, to refrain from selling the citizens of the tourism product, providing air transport (including commercial) citizens from the territory of the Russian Federation on the territory of the Arab Republic of Egypt.
The Decree came into force on the day it is signed and distributed the legal relations arising from November 6, 2015 (retroactivity).
In this regard, the Federal Agency for Tourism recommended that the Russian tour operators, travel agents to suspend the promotion and implementation of tourism products as well as individual tourist services in the Republic of Turkey, including through third countries.
In order to protect national security and national interests of the Russian Federation to protect Russian citizens from criminal and other illegal actions of the Russian President also signed a decree number 583 of November 28, 2015 "On measures to ensure the national security of the Russian Federation and the protection of citizens of the Russian Federation, criminal and other illegal actions and the application of special economic measures against the Republic of Turkey. " This Decree was ordered: 1. The authorities of the Russian Federation, federal government agencies, local authorities, legal entities, formed under the laws of the Russian Federation, organizations, and individuals under the jurisdiction of the Russian Federation in its activities assume that on the territory of the Russian Federation temporarily entered a) prohibition or restriction of foreign economic operations involving import into the Russian Federation of certain goods whose country of origin is the Republic of Turkey, on a list established
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by the Government of the Russian Federation (except for goods imported for personal use in the amount of permitted by law of the Eurasian Economic Union); b) the prohibition or restriction for organizations under the jurisdiction of the Republic of Turkey on the implementation of (provision) of certain types of work (services) in the territory of the Russian Federation on a list established by the Government of the Russian Federation; c) prohibition for employers, customers of works (services) are not included in the list determined by the Government of the Russian Federation, to attract to January 1, 2016 in order to work, works (services) of workers citizens of the Republic of Turkey who are not labor and (or) civil legal relations with these employers, customers of works (services) as of December 31, 2015, the tour operators and travel agents should refrain from implementing the citizens of the Russian Federation of the tourist product, include a visit to the Turkish Republic.
In the Decree contains the terms "should refrain" from certain activities (in particular, the implementation of tourism products), "proceeds from the ban," which in the form are recommendations, and banned, as they interpreted The Federal Agency for Tourism, tour operators and other subjects of business law.
Directly the same prohibition decrees do not establish. There is an interesting transformation in the methods and principles as a way of coordinating the legal effects on the relationship coordinated by entities based on their concerted will and represents the intrinsic property of a system of relations, and it strengthened the mandatory start.
What are the legal consequences of these decisions for a tour operator, travel agents, and tourists, tour operators and airlines, tour operators, and hotels?
Adoption of the Decree containing no outright bans resulted in frustration of contract to counterparties - including airlines and hotels, suppliers of products.
Rights tourists can be recovered by reference to the legislation on consumer protection. In particular, tourists have the right to demand termination of the agreement on the implementation of the tourism product or change its terms and conditions in connection with the substantial change of circumstances, of which the parties proceeded at its conclusion (vv. 10, 14 Law on tourist activity, Art. 451 of the Civil Code). Upon termination of the contract before the start of tourist travel and (or) another customer returned a sum of money equal to the total price of the tourist product, and
after the start - a part in proportion to the cost of tourist services not rendered.
How will they offset the losses from the frustration of contract of tour operators, airlines, hotels, suppliers? The question remains open. Art. 417 of the Russian Civil Code provides that if the act resulting in the publication of public authority or local authority performance of an obligation becomes impossible to totally or partially, the obligation is terminated in whole or in relevant part. Parties who have suffered losses as a result of this, the right to demand compensation for them in accordance with Articles 13 and 16 of this Code. Art. 16 of the Russian Civil Code provides for damages as a result of illegal actions (inaction) of state bodies, local authorities or officials of these bodies, including the publication is not in accordance to the law or other legal act of a state body or local authority, shall be reimbursed by the Russian Federation, the relevant the subject of the Russian Federation or a municipal entity. Compensation for damage caused by lawful actions of state bodies and local self-government is carried out in accordance with Art. 16.1 of the Russian Civil Code. In cases and in the manner prescribed by law, the damage caused to the person or property of a citizen or legal person property by lawful actions of state bodies, local governments or their officials, and other persons to whom powers are delegated by the state, subject to compensation. However, even in the theory of constitutional law status of the President of the Russian Federation as a public authority is questioned.
The mechanism of compensation and its calculation is not worked.
Many Russian tourists have implemented freedom of contract flying to Egypt by other countries. Perhaps this reaction suggests that citizens as subjects of civil law are not perceived as the prohibition of an adequate response to the incident?
From all this, we can conclude that the relative freedom of contract exists only in the normal state of civil turnover, and its narrow limits in extraordinary circumstances.
The crisis of liberal values, including human rights and freedoms that underlie the civil legal understanding of the ideas of equality of arms, justice, economic independence, occurs throughout the world, the reasons for this are political and economic instability and threats to security. It finds expression in the public and private issues, conflict collective and individual human rights in international law, civil law, and other branches.
