The dissertation is an independent completed scientific work, comprehensive research of the concept of general principles of modern international law.
The research carried out an analysis of the nature, the plurality of definitions, the specificity of the evolution, the history of the general principles formation of the international law in the pre-classical and classical period. Analysis of the plurality of definitions of the general principles of international law, and thus formulate the concept of the principles of international law in a broad and narrow sense. The dissertation analyzes the characteristic features of the norm-principle of international law, the place of the general principles of international law, both in the legal and non-legal, the international and national legal systems. On the basis of researching the various features of the international law principles, the author simulates the classification of the international law principles. The connection and correlation between the general principles of international law and the jus cogens, commitments erga omnes are analyzed too. Particular attention is paid to the role and significance of the international organizations resolutions to confirm the existence of the customary norm of the principle by giving them the meaning of opinio juris.
The author carried out a thorough analysis of the implementation mechanism of the general principles of international law, by the presence of political, legal and moral impacts, each of which must be ensured both on the international (including supranational) and national levels. Within the framework of the research, an institutional mechanism for the principles implementation of the international law is being constructed, where, of course, justice institutions, as international, national, and supranational, play the primary role. The practice is analyzed making judgments based on the principles of international law, including the universal principles as rules more flexible and able to adapt to changing relations at the international level.
An analysis of the international normative array and national norms (first of all constitutional level) was carried out, which allowed to formulate only a hypothetical standard about the principles of international law due to the lack of a clear normative definition of them both at the international and national levels. Research of Ukrainian and foreign constitutional practices convinced of the uncertainty of ‘universally recognized principles of international law’ and the lack of unity of normative constitutional recognition of the underlying basis in national legal systems, along with the general global trend of general awareness of the fundamental principles of international law. In particular, the Constitution of Ukraine restricts such recognition only to the foreign policy activity of our state and the contractual consolidation of the fundamental principles of international law, while the latter are by their nature internationally customary.
The dissertation focuses on the rights and principles with common application is for the national and international legal systems. In particular, the history of the formation of the law general principles, which dates back to the earliest stages of the development of law, is studied, and is recognized as a source of international law only in the newest period of the history of international law. Particular importance general principles of law play in the field of regulation in new areas of international law as ecological, criminal, trade, human rights. The dissertation clarifies that the general principles of law crystallize in the form of international justice, the origins of which are still in ancient Roman law. The right of a judge to be guided by justice in making decisions was clearly enshrined in the XII century, and today is regulated in Art. 38 of the Charter of the United Nations. It is argued that justice has become a measure of the balance of positive and natural in international law. In modern international law, the principle of justice is used within the framework of the theory of evolutionary interpretation, which allows for adjusting the rules of positive law which may lead to an unfair decision.
An important role in the development of the system of general principles of international law, jus gentium, has been noted, since most of the general principles jus gentium have become today the general principles of international law.
