Лютов Н.Л. О неформализованных источниках международно- правового регулирования труда

Аннотация: Unlike the Soviet law that was based on the idea of legal positivism meaning that law is limited to a number of legal norms, the system of modern Russian law rests on the natural law concept, which presumes that there are certain ideas and principles going beyond and giving ground for existence of written legal acts. Article 15(4) of the Russian Constitution states that universally recognized norms of international law is a component of Russian legal system beside the ordinary legislation and international treaties ratified by the Russian Federation. Russia is also a party to the Vienna Convention on the Law of Treaties, 1969, providing that an international treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (a jus cogens norm). These provisions are very important for Russian labour law taking into account a big role of international sources in this branch of law. The International Labour Organization Declaration on Fundamental Principles and Rights at Work, 1998 names four basic rights and principles of labour law: the freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation, as fundamental ones and further states that each ILO member state is obliged to follow these principles and rights irrespective of the fact of ratification of any convention concerning these principles. This obligation is motivated by the statement that member-states have already undertook these obligations having ratified the ILO Constitution and ILO Declaration of Philadelphia (Declaration concerning the aims and purposes of the International Labour Organization, 1944) being an annex to the ILO Constitution. Nevertheless, it is impossible to find a clear statement in the texts of the ILO Constitution and the Declaration of Philadelphia that all four principles and rights must be respected by the member-states. This raises several questions: does the difference in contents of Declaration of 1998 and ILO Constitution and Declaration of Philadelphia mean that ILO’s position is in fact meaning that these four principles and rights should be treated as the jus cogens norms? Should any other principles of labour law be added to the list of jus cogens norms? The interpretation of these principles is also a very important issue. Should these principles be interpreted only in the limits of national legislation on their application, or it must be based on the interpretation by the ILO control bodies that goes far beyond the plain text of the ILO Conventions? Is it possible to make a statement that such interpretation is an unformalized source of labour law? The article is an attempt to give answers to these rather difficult questions, important both to Russian national and international labour law.

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Abstract: Unlike the Soviet law that was based on the idea of legal positivism meaning that law is limited to a number of legal norms, the system of modern Russian law rests on the natural law concept, which presumes that there are certain ideas and principles going beyond and giving ground for existence of written legal acts. Article 15(4) of the Russian Constitution states that universally recognized norms of international law is a component of Russian legal system beside the ordinary legislation and international treaties ratified by the Russian Federation. Russia is also a party to the Vienna Convention on the Law of Treaties, 1969, providing that an international treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (a jus cogens norm). These provisions are very important for Russian labour law taking into account a big role of international sources in this branch of law. The International Labour Organization Declaration on Fundamental Principles and Rights at Work, 1998 names four basic rights and principles of labour law: the freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation, as fundamental ones and further states that each ILO member state is obliged to follow these principles and rights irrespective of the fact of ratification of any convention concerning these principles. This obligation is motivated by the statement that member-states have already undertook these obligations having ratified the ILO Constitution and ILO Declaration of Philadelphia (Declaration concerning the aims and purposes of the International Labour Organization, 1944) being an annex to the ILO Constitution. Nevertheless, it is impossible to find a clear statement in the texts of the ILO Constitution and the Declaration of Philadelphia that all four principles and rights must be respected by the member-states. This raises several questions: does the difference in contents of Declaration of 1998 and ILO Constitution and Declaration of Philadelphia mean that ILO’s position is in fact meaning that these four principles and rights should be treated as the jus cogens norms? Should any other principles of labour law be added to the list of jus cogens norms? The interpretation of these principles is also a very important issue. Should these principles be interpreted only in the limits of national legislation on their application, or it must be based on the interpretation by the ILO control bodies that goes far beyond the plain text of the ILO Conventions? Is it possible to make a statement that such interpretation is an unformalized source of labour law? The article is an attempt to give answers to these rather difficult questions, important both to Russian national and international labour law.

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