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ЮРИДИЧЕСКИЕ НАУКИ
THEORETICAL AND PRACTICAL ISSUES OF THE IMPLEMENTATION OF INTERNATIONAL LEGAL NORMS IN THE NATIONAL LEGISLATION OF THE REPABLIC OF UZBEKISTAN Tursunova M.U. Email: [email protected]
Tursunova Madina Ulugbekovna - PhD in Law, Doctoral Student, DEPARTMENT OF PUBLIC INTERNATIONAL LAW AND STATE LAW DISCIPLINES, UNIVERSITY OF THE WORLD ECONOMY AND DIPLOMACY, TASHKENT, REPUBLIC OF UZBEKISTAN
Abstract: this article is devoted to the implementation of international legal norms in the national legislation of the Republic of Uzbekistan. It examines the theoretical and practical issues of the implementation of international norms in the national legal system of the Republic of Uzbekistan, the process of implementation in certain sectors of the legal system of Uzbekistan, as well as the interaction and impact of international law on improving the national legislation of the Republic of Uzbekistan. Formulated suggestions and recommendations of practical importance for further improving the process of implementation of international legal norms in national legislation in Uzbekistan.
Keywords: implementation, international norms, international standards, implementation process, national legislation.
ТЕОРЕТИЧЕСКИЕ И ПРАКТИЧЕСКИЕ ВОПРОСЫ ИМПЛЕМЕНТАЦИИ МЕЖДУНАРОДНО-ПРАВОВЫХ НОРМ В НАЦИОНАЛЬНОЕ ЗАКОНОДАТЕЛЬСТВО РЕСПУБЛИКИ
УЗБЕКИСТАН Турсунова М.У.
ТурсуноваМадина Улугбековна - кандидат юридических наук, докторант, кафедра международного публичного права и государственно-правовых дисциплин, Университет мировой экономики и дипломатии, г. Ташкент, Республика Узбекистан
Аннотация: данная статья посвящена вопросам имплементации международно-правовых норм в национальное законодательство Республики Узбекистан. В ней рассматриваются теоретические и практические вопросы имплементации международных норм в национальную правовую систему Республики Узбекистан, процесс имплементации по отдельным отраслям правовой системы Узбекистана, а также взаимодействие и влияние норм международного права на совершенствование национального законодательства Республики Узбекистан. Сформулированы предложения и рекомендации, имеющие практическую важность для дальнейшего совершенствования процесса имплементации международно-правовых норм в национальное законодательство в Узбекистане.
Ключевые слова: имплементация, международные нормы, международные стандарты, процесс имплементации, национальное законодательство.
UDC 341
The problem of the relationship between the norms of international and domestic law is one of the complex problems of the general theory of the state and the law and science of international law in the context of the domestic implementation of international legal norms. Objective processes occurring at the beginning of the XXI century, lead to the fact that the modern complex and | a diverse world is becoming increasingly interconnected. Therefore, qualitatively new approaches are needed, corresponding to new needs and changing conditions. Given the understanding of the increasing role of the primacy of international law in interstate relations, new approaches are required both in assessing its relationship with national legislation, as well as in areas of improving mechanisms for the implementation of international standards in domestic law.
Today, one of the main and priority tasks of foreign policy is the effective implementation of the Strategy of Action in five priority areas of the development of the Republic of Uzbekistan in 20172021. To achieve this goal, one of the tasks assigned to the foreign ministry of the republic is the
formation of a balanced multifaceted system of strategic partnership with leading countries of the world and international organizations [1].
At the present stage, Uzbekistan has more and more interconnectedness and interaction with other states, and therefore the role of foreign policy in ensuring the national interests of the Republic of Uzbekistan is increasing. Therefore, the formation and improvement of the political and legal system of Uzbekistan is being built taking into account membership in the world community, in this regard, interest in the interaction of Uzbek law with international law has increased.
Today, the Republic of Uzbekistan, being a full-fledged subject of international law, has concluded more than 5,000 multilateral and bilateral treaties and agreements, has acceded to more than 180 major international conventions and agreements, more than 70 of which are directly related to the problem of ensuring and protecting human rights and freedoms. Among them: the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and On Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, On the Elimination of All Forms of Discrimination against women","On the Elimination of All Forms of Racial Discrimination'Y'Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment","Convention on the Rights of the Child" and several others.
It should be noted that, among lawyers dealing with the relationship between international and national law, there is no consensus on the issue of determining and legal content of the process of interaction between international and national law, as a result of which the norms of international law are included in the system of national law.
The terms (transformation, incorporation, reception, adaptation, implementation) used in this connection in most cases are mediated by approaches to the relationship between international and national law (monistic and dualistic concepts). Without focusing on the essence of these concepts, we note that recently to designate the process of implementation (inclusion) of international law, the most common term is the implementation (inclusion, implementation) of international law in national law.
As noted by G. Yuldasheva, descended from the English implementation (implementation, implementation), the term "implementation" is firmly rooted in international legal practice. It can be found in numerous resolutions of the UN General Assembly and its bodies, decisions of other international organizations, adopted in connection with the discussion of questions on the implementation of international treaties in the humanitarian sphere [2, p. 14].
The authors of the Encyclopedic Law Dictionary define implementation as - "the actual implementation of international obligations at the domestic level; is carried out by transforming international legal norms into national laws and by-laws.
The sovereign equality of states, their independence in the implementation of domestic and foreign policies, led to the fact that, being the creators of international legal norms, they at the same time act as the main subjects of their implementation. The vast majority of international legal norms contained in international documents is implemented through the national implementation mechanism. However, the implementation of international law at the national level is the main, but not the only way to implement them. The norms of international law enshrined additional international legal and organizational means of ensuring implementation at the international level, which together constitute an international mechanism for the implementation of international law.
In accordance with Article 17 of the Constitution of the Republic of Uzbekistan, its foreign policy is based on the principles of sovereign equality, non-use of force or threat of force, inviolability of borders, peaceful settlement of disputes, non-interference in the internal affairs of other states and other generally recognized principles and norms of international law [3].
The property of the sovereign equality of states, their independence in the implementation of domestic and foreign policies led to the fact that they, as creators of international legal norms, at the same time act as the main subjects of their implementation. The vast majority of international legal norms are implemented through the national institutional mechanism of implementation. At the same time, the legal and organizational activities of the subject of international law on the implementation of international law in the national legal order are governed by domestic law and practically do not differ from ordinary law enforcement and organizational and economic activities.
The fundamental recognition of the priority of international law does not mean its consistent implementation in the country's legal system. Most laws of the Republic of Uzbekistan contain a standard provision that reproduces the provision of the preamble of the Constitution of the Republic of Uzbekistan on the priority of applying the rules of the international treaty.
Without a green light at the traffic light of national law, international legal norms are not able to overcome the demarcation line between two jurisdictional spheres, national and international.
The problem of enforcing the norms of international law on the territory of the state is solved by each country independently, since the forms and methods of ensuring compliance with the international obligations assumed by the state relate to the exclusive sovereign right of each country.
This problem exists in all states, regardless of which system of correlation of national and international law one or another country adheres to, since the main prerequisite for the legal force of international law in any country is the obligation of the state to comply with the norms of the treaty to which it is a party. As for the methods and forms of enforcing international legal norms, international law usually provides their implementation by the states themselves.
Over the years of independence, the Republic of Uzbekistan, as a full-fledged subject of international law, has been increasingly integrating into the international legal system, signing and joining universal, regional and bilateral treaties in various fields. As a result, questions arose of the implementation and implementation of the international obligations undertaken by our country. The generally recognized principles and norms of international law and international treaties must be faithfully observed, including by taking them into account in domestic law. The branches of national law echo the corresponding branches of international law (international humanitarian, environmental, educational, electoral law and other branches), becoming, to a certain extent, their source. Thus, the authorities of Uzbekistan in their activities are connected both by domestic and international law.
As we know, one of the ways to comply with international legal norms is their implementation in national legislation.
Implementation of international law is a deliberate organizational and legal activity of the state, undertaken individually, collectively or within the framework of an international organization with a view to timely, comprehensive and full implementation of their obligations in accordance with international law.
It should be noted that the implementation of international law does not at all consist only in the legislative activity of a state party to a particular international treaty related to the reproduction of international law by domestic law.
Implementation involves a wide range of organizational and legal measures aimed at the direct implementation of international legal norms.
Today, we can say with confidence that the process of implementation of international legal norms in national legislation in Uzbekistan is becoming stable, systemic and irreversible.
As a result of this phenomenon, the block of laws and by-laws has been completely revised to bring it to the requirements of generally recognized principles and norms of international law. Today, analyzing the legislation of the Republic of Uzbekistan, it can be stated that the laws of Uzbekistan guarantee the implementation of almost all of its foreign policy and international legal obligations: both in matters of security, and in matters of stability of state borders, and in human rights, national and religious groups, and in unconditional observance of rights foreign investors, owners, entrepreneurs, citizens, etc. Similarly, for many other legal issues.
Our country has managed to do a lot to implement international standards in the national legal system. As a result of ratification by the Republic of Uzbekistan of the main international conventions for the protection of human rights, virtually all of their principles and norms have been introduced into the national legislation governing legal proceedings. They, like the provisions of other international treaties and agreements to which Uzbekistan is a party, are given preference over the norms of national legislation. However, as practice shows, for international standards to operate fully and efficiently, it is necessary to create an appropriate mechanism for the implementation of these standards.
At the present stage, as a result of the judicial and legal reform in Uzbekistan, the civil, criminal, administrative and economic procedural legislation has been radically updated, aimed at improving judicial proceedings, strengthening the judicial responsibility of state authorities and officials for observing human rights, empowering the courts with wider control powers increasing the availability of justice.
So, the Law of the Republic of Uzbekistan "On international treaties" in the new edition of February 6, 2019 introduced a number of innovations in national legislation, according to which article 3 stipulates that international treaties of the Republic of Uzbekistan along with generally recognized principles and norms of international law are integral part of the legal system of the Republic of Uzbekistan.
Regarding the execution of international treaties, in Art. 33 of the law provides that international treaties of the Republic of Uzbekistan are subject to rigorous and mandatory execution by the Republic of Uzbekistan in accordance with international law. In cases when, in order to fulfill the international treaty of the Republic of Uzbekistan, it is necessary to adopt an act of legislation of the Republic of Uzbekistan, the interested state bodies, in agreement with the Ministry of Foreign Affairs and the
Ministry of Justice of the Republic of Uzbekistan, submit proposals on the adoption of the relevant act on the implementation of the norms of the international treaty of the Republic of Uzbekistan [4].
Consequently, the legislator admits the provision according to which the implementation of international legal norms is possible on the territory of the Republic of Uzbekistan through the issuance of specific state legal acts. At the same time, Articles 3 and 33 of the said Law indicate the obligatory observance by the Republic of Uzbekistan of all international treaties in accordance with international law, which indicates the possibility of direct effect of the international treaty. In the first case, incorporation is implied, and in the second, reference.
In addition, the new law "On international treaties of the Republic of Uzbekistan" pays special attention to monitoring and inventory of international treaties of the Republic of Uzbekistan, which was not in the old law. Thus, the monitoring of the implementation of international treaties of the Republic of Uzbekistan is carried out by the Ministry of Foreign Affairs of the Republic of Uzbekistan on the basis of the Electronic Database of a unified record of international treaties of the Republic of Uzbekistan, inventory and monitoring of their implementation (Article 36), and the inventory of international treaties of the Republic of Uzbekistan is carried out on the basis of the Electronic Database data on the unified accounting of international treaties of the Republic of Uzbekistan, inventory and monitoring of their implementation (Article 37).
We believe that the innovations introduced into the law "On international treaties of the Republic of Uzbekistan" will contribute to the further improvement of national mechanisms for the implementation of international legal norms in the legislation of the Republic of Uzbekistan and their implementation.
An analysis of the implementation of international legal norms in the legislation of the Republic of Uzbekistan showed that the influence of general ideas and principles of constitutionalism is very noticeable in the constitutional law of the Republic of Uzbekistan. IPA CIS acts on the rule of law, separation of powers, on human rights and democratic institutions are increasingly refracted in constitutional legislation. This can not be said about administrative law, where external influence is not very noticeable and is expressed, rather, in relation to civil service institutions and administrative justice, vehicle standards. The widest range of use of international norms is observed in civil law and MPE. The stable institutions that they bring, characteristic of many countries, are actively transferred to national soil. The last decade provides an example of the influence of model laws of the CIS. And, of course, the role of informal codes of various international structures and institutions is great.
The implementation process in the field of criminal law and criminal procedural law of the Republic of Uzbekistan is underway most actively in Uzbekistan, international principles of justice and the rights of participants in processes, the habeas corpus institute and others, which are reflected in the Criminal Code, the Code of Criminal Procedure and many laws, are gradually being introduced Republic of Uzbekistan. For example, the norms of the UN Convention against Corruption are implemented in the special law of the Republic of Uzbekistan "On combating corruption" adopted on January 3, 2017 [5].
In recent years, much attention has been paid to the implementation of international labor standards in the national legislation of the Republic of Uzbekistan.
As noted by the ILO Director General G. Raider, fundamental and widespread changes are being implemented in Uzbekistan, which have significantly improved the country's positive image in the eyes of the world community, contribute to raising the living standards of the population, providing employment and decent working conditions for Uzbek citizens [6].
The Strategy of Action adopted in the Republic of Uzbekistan in five priority areas for the development of the Republic of Uzbekistan in 2017-2021 as one of them is a consistent increase in real incomes and employment, in particular, the creation of conditions for the able-bodied population to fully realize their labor and entrepreneurial activity, and to improve the quality labor force, expanding the system of vocational training, retraining and advanced training of persons in need of employment [7]. In this regard, in the current conditions of socio-economic transformations in Uzbekistan, the development of the labor market is of particular importance, especially the issues of effective "implementation" of the ILO Conventions in national legislation. In order to improve the implementation of international labor standards, the Cabinet of Ministers of the Republic of Uzbekistan adopted Resolution No. 407 of May 31, 2018 on the establishment of a Republican Interdepartmental Commission for the implementation of the conventions of the International Labor Organization (ILO) ratified by the Republic of Uzbekistan. In accordance with which, the commission coordinates the implementation of the norms ratified by our country of ILO conventions, draws up government reports on this topic, studies ILO acts and makes proposals for their implementation in national legislation.
For the period 2018-2020 a set of measures has been adopted, including providing for the implementation of individual ILO conventions. Special attention is paid to the implementation of ratified conventions on forced labor and child labor [8].
More fragmented is the impact of international norms in other sectors. For financial law, these are the standards of international accounting, recommendations and standards of the MDBs and the IMF, for environmental law, strict standards for natural resources and recommendations of international forums on environmental protection and sustainable development.
It should be noted that in order to implement generally accepted norms of international law into national legislation and fully implement them, the Government of the Republic of Uzbekistan has adopted and is adopting a number of socially oriented programs and National Action Plans. Naturally, the development and adoption of a program in a particular sphere and industry is not yet a solution to the problem, the problem lies in determining strategic priorities and the consistent implementation of the tasks in full.
To improve and accelerate the process of implementation of international legal norms into national legislation in Uzbekistan, the following is required:
1. As an additional way of mutual coordination of international and domestic law, it is necessary to conduct an examination of national laws for compliance with international obligations of Uzbekistan, given that this examination should consist of three components:
1) verification of a national bill for compliance with generally recognized principles of international law,
2) verification of a national bill for compliance with generally recognized norms of international law,
3) verification of the national bill for compliance with international treaties of the Republic of Uzbekistan;
2. It should be noted that in the Law "On regulatory legal acts of the Republic of Uzbekistan", the place of international treaties of the Republic of Uzbekistan in the hierarchy of legal acts is not defined
[9], international treaties are ratified by the adoption of the law, although they have great legal force in relation to other laws. In this regard, it is necessary to determine the hierarchical relationship between those acts of national legislation that express consent to be bound by the Republic of Uzbekistan of the international treaty, and other normative acts in the Law "On regulatory legal acts of the Republic of Uzbekistan" or hierarchy of regulatory acts included in the legal system of the Republic of Uzbekistan , including international treaties of the Republic of Uzbekistan.
3. In 2012, the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On Certain Issues of International Cooperation in the Field of Civil and Criminal Procedure" was adopted
[10], however, this Decision does not consider the implementation and implementation of international legal norms by the courts of the Republic of Uzbekistan. The courts of the Republic of Uzbekistan should be granted the right to consider specific cases on the basis of international law. Therefore, it is necessary to develop and adopt a special Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan "On the issues of application by courts of international legal norms in the administration of justice".
Also, courts should be given the right to consider specific cases on the basis of international law. In this regard, it also seems appropriate to determine the range of international law that can be applied directly, to develop some basic rules that, after conducting relevant law-making and other events, could be guided by law enforcement bodies of the Republic of Uzbekistan, primarily judicial, based on the experience of other states and given the features of the legal system of the Republic of Uzbekistan. Since the application of international law involves not only the search and interpretation of treaties, but also a comparison of them with legislation, the choice of law to be applied taking into account the rules of correlation of legal force of norms of different levels to make an informed decision, a certain methodology of applying international law should be followed.
At the present stage, the need has ripened for legislative consolidation of a single, unambiguously understood mechanism for the implementation of international law into the legal system of the Republic of Uzbekistan and the "technical" elements of the mechanism for the implementation of international norms.
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