Защита законных ожиданий и прямое применение международного права

Abstract

The present article provides the analysis of the institution of protection of legitimate expectations in the light of direct application of international law in a municipal legal order. Traditionally, the possibility of direct application of international law was considered to be dependent on the character of the norm of international law: whether it is precise or vague, whether it requires adoption of additional implementing legislation or not, etc. States have no general obligation under international law to apply rules of international law directly. It is up to states to decide h ow to implement international l aw in their domestic legal systems. That is why the decision whether an international rule is precise enough to be applied directly without adoption of additional implementing legislature is usually a subjective opinion of the state, which may be different from opinions of other states. Thus, as a rule, states apply international law in their municipal systems when it is just convenient for the governments of those states. This reality does not seem to be satisfactory. International l aw should be applied within a state not because it is convenient for the government, but because it may protect legitimate expectations and interests of people who in good faith rely on international legal provisions binding for the state. Therefore, the question whether a n o rm is precise or vague, self-executing or not is a secondary question. The primary question should be whether a particular norm of international law can protect legitimate expectations ofpeople in a particular situation without infringing rights of third parties when being applied directly. Actually any norm of international law may be applied directly in a municipal system if it affects or creates legitimate interests and expectations among subjects of municipal law and if there is a domestic legal remedy to protect such a n o rm and interests.