Methods of international legal convergence

Author:Yury Bezborodov
Position:ass. professor, PhD Ural State Law University, Ural Federal University
Pages:21-31
SUMMARY

This article analyzes the processes of universalization of international legal regulation and international legal convergence of national legal systems. The stages and methods of convergence - harmonization, unification and integration, which until now have not been subjected to any serious complex science investigations in the framework of international law. Article represents theoretical understanding of the convergence processes and their methods on the international legal level. The author suggests his own understanding of the terms harmonization, unification, integration and convergence.

 
CONTENT
Methods of international legal convergence 21
INTERNATIONAL LAW
METHODS OF INTERNATIONAL LEGAL CONVERGENCE
Yury BEZBORODOV
ass. professor, PhD
Ural State Law University, Ural Federal University
Abstract
This article analyzes the processes of universalization of international legal regulation and
international legal convergence of national legal systems. The stages and methods of convergence -
harmonization, unification and integration, which until now have not been subjected to any serious
complex science investigations in the framework of international law. Article represents theoretical
understanding of the convergence processes and their methods on the international legal level. The
author suggests his own understanding of the terms harmonization, unification, integration and
convergence.
Key words: convergence, universalization, harmonization, unification, integration.
Human civilization and social regulators that accompany it, finally embarked
on the path of convergence, consistency and integration. They in general are
associated with a tendency to the universalization of social relations and their
regulators. The processes of universalization (as an expansion of spheres and
processes and methods of regulation) are more pronounced in the legal sphere,
above all – in international law. „The universalizing vocabularies of human rights,
liberalism, economic, and ecological interdependence have no doubt complicated
inter-sovereign law by the insertion of public law notions such as jus gentium and
‘obligations owed to the international community as a whole’ and by ‘fragmenting’
the international system through the fluid dynamics of globalization”1.
The growing interdependence and integrity of the modern world, the
emergence of global problems, and above all taking care of the maintenance of
international peace and security, encourage states to pay more attention to the
progressive development and codification of international law. Now we can see
1 M. Koskenniemi. What is international law for? International law by Malcolm D. Evans. 1st ed.
Oxford. 2013, p. 94.
Law Review vol. VII, issue 1, January-June 2017, pp. 21-31
22 YURY BEZBORODOV
how international law universalizes through treaties and customs, standards and
norms. «The role of international law has changed: it is not only the traditional link
in relations between states in the international arena, but it also became the basis
for creating a common legal framework ... in the territorial limits of the States”2.
The universalization as a process promotes harmonization of legal regulation
in the various legal systems of the world, as well as the activities of a number of
states that can effectively deal with complex global issues. We proposed the
following definition of universalization of international legal regulation: it is a
process of territorial and functional expansion of existing international legal
controls on the basis of principles and methods of unification and harmonization,
aiming at creating a single, integrated legal framework.
In international law technically processes of convergence and universalization
are implemented through a variety of methods – unification, harmonization and –
the most advanced to date – integration. The legal convergence as a process has
historical roots. For example: the unification of French law after the French
revolution and the unification of German law after the founding of the German
Reich in 1871. In general it should be noted that the processes of legal convergence
initially have had mostly intrastate and economic nature. At the end of the second
half of the XX century in doctrine and legislation national trends took the pas and
it was typical for the XIX century. National legal systems were subjected to
centripetal action forces, resulting in developing the concepts and principles that
are incompatible with each other and do not meet the requirements of the
development of global communication. Due to the fact that the state and the unity
of its domestic law are the cornerstone of future development in the field of law, in
the second half of the XIX century it was clear understanding of the need for
uniformity in certain areas of human activity, which, because of their cross-border
nature can not effectively be regulated only by national law, which may
significantly vary in the states. It is not surprising that the first international
treaties containing legal methods of convergence were signed in the field of
intellectual property and transport more than one hundred and fifty years ago, in
the heyday of „legal nationalism”. Subsequently, convergence techniques have
become very popular in the following areas of legal regulation: trade, taxes,
protection of intellectual property, transport and transport sphere.
Over time, the international legal convergence to localize and extend to a
group of related or neighboring states. Obvious examples are the formation of a
Benelux, the Nordic Council, the European Union, Council of Europe, UNASUR.
Methods of convergence have been actively used by the international
organizations – governmental and non-governmental: first of all – the International
Institute for the Unification of Private Law (UNIDROIT, founded in 1926 and
2 Marochkim S. Mezhdunarodnoe pravo: 60 let posle sozdaniya OON // Zhurnal rossiyskogo
prava. 2006. 3, p. 127.
Methods of international legal convergence 23
established under the auspices of the League of Nations); United Nations
Commission on International Trade Law; more specialized institutions such as the
International Civil Aviation Organization, International Maritime Organization,
the Central Department of International Rail Transport. This list can be enabled by
including the International Chamber of Commerce and numerous business
associations that have achieved success in developing standards, terms and forms
of contracts that are widely used in international trade now. We can see how in the
framework of globalization processes and the processes of universalization of
international regulatory convergence as a legal phenomenon is precipitating,
localizing and concretizing in the activities of international organizations3.
The international process of assimilating the diverse legal systems of various
countries goes back into ancient history4. The legal convergence is a long process
that takes a lot of time. This is because of the differences and contradictions of
state’s aims they seek. Another reason for its time length is the complexity of the
development of uniform standards, when the task is to formulate a new rule that
generalizes differing legal standards.
There is a serious problem with the ratio of the forms and methods of legal
convergence in the theory and practice of international law. Most often, integration
does not relate to the number of methods and harmonization considered a kind of
unification, and vice versa. For example: Methodology of harmonization
(convergence, unification) of the laws of the Member States of the Eurasian
Economic Community, published by the Bureau of the Interparliamentary
Assembly of the Eurasian Economic Community, considering the convergence and
unification as the ways of harmonization5.
Professor Tikhomirov separates convergence, harmonization and unification
and the model law-making. While other researchers suppose that between
convergence and harmonization of legislation there are no significant differences,
and the model law-making is a form of unification.
Unification, harmonization and integration as a forms of legal convergence
have a common core – all of them are law-making and legislation processes aimed
at the creation of new legal rules6. Based on already established international rules
3 See: Sabino Cassese. The Globalization of Law // http://www.iilj.org/gal/documents/
CasseseGlobalPaper.pdf; Interpretation of law in the global world: from particularism to a universal
approach. Springer ed. 2010; Armin von Bogdandy. Globalization and Europe: How to Square
Democracy, Globalization, and International Law // The European Journal of International Law. Vol.
15. N. 5.
4 R.H. Graveson. The International Unification of Law. The American Journal of Comparative
Law Vol. 16, No. 1/2, The International Unification of Law: A Symposium (Winter - Spring, 1968),
p. 4.
5 http://www.ipaeurasec.org/docsdown/metod-garmoniz.pdf.
6 We can see it at: Jürgen Basedow. Worldwide Harmonisation of Private Law and Regional
Economic Integration – General Report. Rev. dr. unif. 2003-1/2. 31-49 p. (http://ulr.oxfordjour
nals.org/content/8/1-2/31.full.pdf+html).
24 YURY BEZBORODOV
they imply further law-making as a form of implementation of international
obligations. States are expected to lawmaking activity in the framework of these
obligations. The main difference between them – they are different levels of
concrete definition of the final products:
newly created standards or norms (they are similar in the case of
harmonization);
uniform norms (in case of unification) or
single norms (in the case of integration).
To prove it, take a closer look each of these methods.
1. Harmonization
The term „harmonization” has French roots („Harmoniser”7) and in general
and in legal aspects refers to the processes of matching and coordination.
„Experience with legal harmonisation and the growing interest in legal writings for
the relationship between law and economics have produced additional arguments.
Of particular relevance are arguments relating to the positive role of legal
harmonisation and law reform in reducing transaction costs and facilitating
business worldwide”8.
In doctrine term of harmonization as a legal method of convergence is the least
developed category. „Nonetheless, there is no clear idea of what harmonization
means”9. Harmonization of law is a process of convergence of national legal
systems, reducing and eliminating differences between them, said prof.
Getman-Pavlova. This is a very imaginative and generalized definition, which is
equally applicable to the integration and unification. The author equalized terms
„convergence” and „harmonization”, as opposed to developers above-mentioned
Methodology of harmonization (convergence, unification) legislations of the
EurAsEC member states, which have fixed that convergence (at least in EurAsEC)
is a method in which the national acts basically correspond to the legal acts of the
Community; and the harmonization – is a method in which the national acts (in its
content, the principles of legal regulation and the intended results in law
enforcement) are similar (homogeneous) to acquis communautaire. Indeed, there is
no need to distinguish between these categories with different applicable
characteristics – „compliance” and „similarity”.
7 http://www.oxforddictionaries.com/definition/american_english/harmonize?q=harmoniza
tion#harmonize__18.
8 José Angelo Estrella Faria. Future Directions of Legal Harmonisation and Law Reform: Stormy
Seas or Prosperous Voyage? // Unif. L. Rev. 2009. P. 5. (http://www.unidroit.org/english/
publications/review/articles/2009-1&2-faria-e.pdf).
9 E J Lohse. The Meaning of Harmonisation in the Context of European Community Law – a
process in need of difinitions // https://www.academia.edu/3506314/_The_Meaning_of_
Harmonisation_in_the_Context_of_European_Union_Law_a_Process_in_Need_of_Definition.
Methods of international legal convergence 25
In confirmation of our approach to art. 2 of the Treaty on the Eurasian
Economic Union, 2014 by harmonizing understood the approximation of
legislation of Member States, aimed at establishing a similar (comparable) of
normative legal regulation in some areas10.
Securing international humanitarian standards (without its national
specification) and their subsequent implementation in national law, of course,
brings together and harmonises national legal systems, and therefore is an example
of harmonization in international law. For example, the universal right to
education is harmonizing standards, but not unifying, because it is filled with all
the right of the state in different ways. Harmonisation, therefore, indicates the
direction of regulation, without any specific content. Many international treaties do
not provide for any specific measures or actions in the domestic sphere, have just
harmonizing effect – they figuratively universalizing national regulation, making it
similar (but not identical – this is the inheritance of the unification and integration).
Blur of harmonization allows to strengthen the effect of universalizing
international legal obligations. It is even possible to conclude that harmonization is
a common feature of international treaties.
We can see an example of harmonizing standards in art. 2 International
Covenant on Economic, Social and Cultural Rights, 1966: "Each Party to the present
Covenant undertakes to state individually and through international assistance
and cooperation, especially economic and technical, to the maximum of its
available resources, to achieving progressively the full realization of the rights in
the present Covenant by all appropriate means, including particularly the
adoption of legislative measures11”.
Another example – in article 9 of the Convention for the Regulation of
Whaling, 1946: „Each Contracting Government shall take appropriate measures to
ensure the application of the provisions of this Convention and the punishment for
the violation of these provisions in operations carried out by persons or vessels
under the jurisdiction of that Contracting Government12”.
We may agree with Eva Lohse about multi-level nature of harmonization: 1)
„harmonisation is a process. It begins with the conscious creation of a
concept… by various actors and included in various normative instruments...
Harmonisation requires the insertion and adaptation of the concept into the
domestic legal orders by different means, as only thereby the important part of the
process is triggered… 2) harmonisation has an intended result. This is to create a
law as uniform as it is needed for the goals to be achieved. Most importantly,
similarity in norms, i.e. texts and rules, is not enough… Harmonisation can thus be
defined as a conscious process that has the aim to lead to the insertion of a concept
into the national legal orders13”.
10 www.eurasiancommission.org/ru/Lists/EECDocs/635375701449140007.pdf.
11 http://www.un.org/ru/documents/decl_conv/conventions/pactecon.shtml.
12 http://www.sevin.ru/bioresrus/law/international/whaling.html.
13 E J Lohse…
26 YURY BEZBORODOV
If we compare visions of harmonization and unification it can be argued that
the harmonization is a broader concept, as the convergence of national legal
systems can be carried out outside the unification of the law. International law
harmonizes national legal systems, and sometimes – when states are showing the
desire and the will – International law begins to unify. Prof. Getman-Pavlova
argues that the main difference from the harmonization of unification – the
absence of international obligations (international treaty form) in the process of
harmonization, and this statement is difficult to accept: „The absence of contractual
forms determines the specificity of the whole process of harmonization of law in
general, which can be either spontaneous or deliberate. The essence of the
spontaneous harmonization is that in the process of collaboration and cooperation
of States in their legal systems similar, or even identical legal regulation are
appeared (reception of Roman law in Europe, Asia, Latin America). The essence of
targeted harmonization – the perception of by one state of legal achievements of
other state (reception of Belgian, German and French civil code in Russian civil
code)”14. As we have seen in the presented examples spontaneous harmonization
can purchase treaty forms. Targeted harmonization is not a phenomenon of
international law, international legal convergence.
States choose this method of international legal convergence – harmonization –
in case of need, this way they can achieve great results in the coordination, in
problem solving. Unification is the next, more advanced in relation to the
harmonization level of cooperation of subjects of international law. The next level,
which may characterize as a stage of closer (merger) cooperation of states is
integration.
2. Unification
The term „unification” is derived from the Latin words unus (one) and facio
(do). In the most general meaning unification is an association, to bring something
to uniformity, to a single form or system.
In the aforementioned article 2 of the Treaty on the Eurasian Economic
Community 2014 unification meant „the approximation of legislation of Member
States, aimed at establishing identical regulatory mechanisms in specific areas
defined by this Agreement”. The Methodology of harmonization (convergence,
unification) of the laws of the Member States of the EurAsEC harmonization of
national legislation - a „harmonization of national regulations in this ratio with the
legal acts of the Community, in which the rules of national acts identical to
(coincide) of title norms and the provisions of legal acts of the Community”.
Indeed, it is a measure of the identity (essential features) for the characterization of
international legal unification.
14 Mezhdunarodnoe chastnoe pravo. Ed. by I.V. Getman-Pavlova. Urait. 2013, p. 164.
Methods of international legal convergence 27
In doctrine there is still not yet have formed a consensus terms about the
concept of unification, but there are no differences in the definition of the essence
of this legal phenomenon15.
For example, prof. Abdullin meant by legal unification "process to develop
uniformed (harmonized) standards in international private law. It is already the
result of a unified legal norms"16.
Prof. Makovsky assigned unification of much wider scope of distribution. He
developed not only the definition of unification, but also classify the process.
According to him, unification is the creation of the right of different countries on
the content of the uniform rules by using international legal means and the
influence of different legal systems on each other.
According to prof. Averkov, unification is the creation of new uniform rules of
law that provides conflict-regulation of domestic relations.
An example of a uniform approach to the regulation of certain relations is the
art. 76 Convention on the Law of the Sea, 1982: "The continental shelf of a coastal
State comprises the seabed and subsoil of the submarine areas that extend beyond
its territorial sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea, where the outer edge of the
continental margin does not extend up to that distance". The agreement containes
specific and already standardized model of how continental shelf should be
determine by the national law.
There are different instruments of legal unification. The choice of a way
(method) of unification is reflected in the form of an international legal instrument:
a single unifying act, for example, the Convention 1998 on International
Financial Leasing and International Promissory and bills of exchange, the Vienna
Convention on Contracts for the International Sale of Goods, 1980;
mixed act – containing unified rules and unifying (model) rules, eg., the
European Framework Convention on Trans-frontier Cooperation between
Territorial Communities or Authorities (Madrid, 1980), Convention relating to a
Uniform Law on the International purchase and sale of goods 1964.
Secretariat of UNCITRAL highlighted next methods of unification in law: 1)
uniform or ‘model’ national laws; 2) international conventions; 3) practice
unification17.
Summarizing and supplementing approaches to the definition of unification it
is possible to give to it the following definition: legal unification – it is the
law-making process aimed at the creation of uniform rules of law not only in order
15 R.H. Graveson…
16 Abdullin A. K voprosu ob unifikacii v mezhdunarodnom chastnom prave // Pravovedenie.
1998. 1.
17 https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/vol1-p13-17-e.pdf.
28 YURY BEZBORODOV
to avoid contradictions and differences between national legal systems or between
international legal norms, but also to the creation of new standards, which
complete the existing gaps in the regulation of certain special issues.
3. Integration
The term „integration” has Latin roots also: integrum – whole; integratio
restoration. In a general sense it means to unite, to get union structures – political,
economic, government and public at different scales – regional, global,
governmental. Integration is a condition of connectedness of differentiated parts
into a whole one, as well as the process leading to such a state. In philosophical
aspect integration is a process or action with integrity as a result; it is also an
association, union, unity of recovery.
Integration is a multi-faceted term, and is also used to describe the
convergence of the processes taking place along with the process of divergence18.
Integration has a social nature, it is mental product of human life. Analyzing
integration and its problems in international law related to understanding the
knowledge of integration processes – their causes, forms, objectives, and aimed at,
to reveal to them the general trends related to the reasons that determine the facts,
the main features of this phenomenon. With regard to the integration of
international law is a higher level of cooperation between States and other subjects,
when the participants of the process of alienating some of their sovereignty in
favor of supranational bodies.
International legal integration is a form of international legal cooperation
which means interaction process between two or more entities, which excludes the
use of armed force, in which the joint search for realization of common interests are
dominated. „Integration is both a process and a state that has a tendency to replace
the fragmented international relations, composed of independent units with new,
more or less wide associations, endowed with a minimum of decision-making
powers, or in one or more specific areas, or in all the areas that fall within the
competence basic units. At the level of individual consciousness integration
designed to generate loyalty and commitment to the new association and at the
structural level, the participation of all its support and development19”.
International legal integration is a process of convergence of legal systems with
help of special international legal methods to achieve unity of the legal regulation
related to the activities of law-making subjects in international law, extending the
universal and regional levels, with specific legal methods in the different forms. At
the same time integration is a process of strengthening the interdependence of
states, it is a higher degree of consistency of the wills of states.
18 Paradoxes of European Legal Integration / edited by Hanne Petersen... Ashgate. 2008.
19 Gonidec P.-F., Charvin R. Relations Internationales. Paris. 1984, p. 435.
Methods of international legal convergence 29
In its pure form the international legal integration is a „child” of special
international organizations, departed from the methods of coordination in the
direction of subordination. These are organizations with a special hybrid legal
nature. They are not international organizations in classical aspects, but not federal
states yet. We are talking about international organizations with supranational
legal nature. Members of such organizations demonstrate the features of identity at
all levels: legal, cultural, religious and other. This identity is pushing them to
consolidate unity on all levels, including at the level of legal controls. So there is
integration law. To date, the European Union's experience is an classical example
of integration as a method of legal convergence. All decisions and directives
adopted by the EU institutions, precedence and automatically integrated into the
legal systems of EU member states (and not even the Member States in the case of
the Schengen acquis).
The beginnings of the integration of law we may see in the Treaty on the
Eurasian Economic Union, 2014. Especially in those parts of it which speak of a
unified policy of the Member States (Article 2), the common customs (Art. 25) and
so on. Integration is still an active law-making process (stemming primarily from
the competence of the bodies of international organizations), but the signs of it at
the level of major organs of the Eurasian Economic Union we couldn’t find. For
example, Art. 13 of the Treaty on the decisions and orders of the Supreme Council,
did not contain any information about the nature, the legal force of acts of this
body. Therefore it is difficult to answer positively to the question whether the
integrating effect of the right of the Union (except, perhaps, a single customs law).
Scholarship provides for very divergent analyses of how convergence impacts
on the existing forms of legal regulations and proposes different strategies for
responding to the diagnosed challenges. We may agree with prof. Bogdandy that
the multiplicity and divergence of opinions should, given the diffused nature of
the phenomenon and the dynamics of its development, be welcome: it protects
against viewing the problem too narrowly and rashly opting for a strategy that
might do more harm than good.
Harmonization, unification and integration of legal systems are the various
stages of extended over time convergence process. We can visualize it next way:
30 YURY BEZBORODOV
The result of this process may seem fantastic – the emergence of a common
legal space of planetary scale on par with the emergence of a single world state and
the uniform enforcement of his reign. Maybe this would require more than one
hundred years, but with proper legal and stable development of all states should
come to this. In this process, international law has played a leading role as the
necessary legal denominator for the legal systems of the states. The first step
towards a single legal space (at least in a certain area or for certain states) are the
processes of harmonization; followed by legal unification, which is much closer to
the designated purpose; then, to prepare for the creation of unions and reduce the
amount of sovereignty, the era of integration.
International law with its special methods is at the forefront of legal
convergence processes. Convergence as a legal category is closely connected with
the process of enlargement of the subject of international law and of the circle of
relationships that this law regulates. Expansion of the subject is developing at the
moment in two ways:
1) first way is characterized by the regulation of the regulatory system of new
areas of intergovernmental cooperation;
2) content of the second way is a deep penetration of the regulatory impact of
international legal norms in the sphere of interstate relations.
Science highlights the many ways of interaction and influence of international
law on the legal systems of a particular states: transformation, reference, reception,
implementation, adaptation and legitimation.
Methods of international legal convergence 31
In the light of ideas given above, it would seem useful to have a
comprehensive and expert survey on international legal convergence in general.
Such a survey would: 1) monitor and review the works in the field of legal
convergence and its methods in national and international levels; 2) analyze the
methods and approaches suitable for harmonization, unification or integration,
including the question whether what method are more suitable for concrete
relations on regional, interregional and worldwide scales; 3) consider the
important role of international organizations in this field, especially United
Nations.