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Reproduced with permission of the author

History of the Official Publication of the UN Convention on Contracts for the International Sale of Goods (Vienna 1980) in the Russian Federation in the Context of Application of International Treaties in Russia

Alexandre Muranov [*]

Monastryrsky, Zyuba, Semenov & Partners Law Firm

The purpose of this article is to shed some light upon the history of the official publication of the United Nations Convention on Contracts for the International Sale of Goods (hereafter "the Convention") in Russia. This quite remarkable though somewhat technical issue will be set forth in the context of the dependence of the Convention application on its official publication. It will also illustrate certain rather serious problems relating to the practical implementation of international treaties in Russia.

The history of the official publication of the Convention in Russia is quite instructive. It mirrors the numerous problems related to the public release of the international treaties texts in Russia which have not yet been ultimately resolved. These include, among others, delays with publication or even failure to publish, the quality of published texts and the impact of availability or absence of the official publication on the applicability of a particular treaty.

It should be noted at the outset that our focus is on the publication of the Convention in official Russian domestic sources but not in editions of international organizations. In particular, we should disregard the publication of the Convention in the UN edition "Konferentsiya Organizatsii Ob"edinennykh Natsiy po dogovoram mezhdunarodnoy kupli-prodazhi tovarov. Vena, 10 marta - 11 aprelya 1980 goda. Ofitsial'nye otchety. Documenty Konferentsii i kratkie otchety plenarnykh zasedaniy i zasedaniy glavnykh komitetov" published in New York in 1981 [1] or the text in the edition "Komissiya Organizatsii Ob"edinennykh Natsiy po Pravu Mezhdunarodnoy Torgovli. Ezhegodnik. Tom XI: 1980 god" ("United Nations Commission on International Trade Law. Yearbook. Volume XI: 1980"), issued in New York in 1982. Obviously, if the publication of the text of the Convention in the above stated editions were considered to be its official release in Russia, the discourse discussed below would be superfluous.

As we know, the Convention is an international agreement laying down universal regulations governing contracts for the international sale of goods. The Convention has struck a compromise between the approaches of continental law and common law and has been universally recognized: as of 1 January 2002 it was effective in 58 nations whose overall share in international trade exceeds two-thirds, and the number of contracting states keeps growing. These factors make the Convention a unique legal instrument without precedent in juridical history.

The Soviet Union delegates took part in the United Nations Conference on Contracts for the International Sale of Goods which adopted the Convention. However, the USSR did not sign the Convention there and then. It was only ten years later, on 23 May 1990, that the USSR Verkhovny Sovet (Supreme Council) passed the Resolution "On the Accession of the Union of Soviet Socialist Republics to the UN Convention on Contracts for the International Sale of Goods" No 1511-I. The Resolution was published as item 428 in the official edition "Vedomosti S"ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR" ("Gazette of the Congress of the People's Deputies of the USSR and the Supreme Council of the USSR"), No 23 of 6 June 1990. The reason for the Soviet Union belated accession to the Convention is that some of the USSR authorities saw no sense in joining the Convention before its major trade partners did. Accordingly, those authorities put accession at the top of their agenda only in the late eighties, i.e. after the Convention had taken effect in the USA, France, Italy, Finland and some other nations.

The instruments of accession of the USSR to the Convention were deposited with the Secretary-General of the UN on 16 August 1990. Accordingly, the Convention took effect for the USSR on 1 September 1991 by virtue of para. 2 of Article 99 of the Convention which stipulates: "When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession."

Part 1 of Article 5 of the USSR Law "On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of People's Deputies of the USSR, the Supreme Council of the USSR and Their Bodies" No 307-I of 31 July 1989,[2] which was effective at the time stipulated: "International treaties which have entered into force for the USSR, concluded on behalf of the USSR and ratified by the Supreme Council of the USSR, shall, upon submission by the USSR Ministry of Foreign Affairs, be published in "Vedomosti S"ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR." Further, Article 25 of the USSR Law "On the Procedure for Conclusion, Performance and Denunciation of International Treaties of the USSR" No 7770-IX of 6 July 1978 [3] established that "International treaties, concluded on behalf of the Union of SSR which have entered into force for the USSR and the resolutions on signing of which were passed by the Presidium of the Supreme Council of the USSR, international treaties of the USSR concluded on behalf of the Presidium of the Supreme Council of the USSR, ratified treaties and treaties acceded to in accordance with the resolutions of the Presidium of the Supreme Council of the USSR shall, upon submission by the USSR Ministry of Foreign Affairs, be published in "Vedomosti Verkhovnogo Soveta SSSR" ["Gazette of the Supreme Council of the USSR"].

International treaties concluded on behalf of the USSR which have entered into force for the USSR and the resolutions on signing of which were passed by the Council of Ministers of the USSR, treaties concluded on behalf of the Government of the USSR which are not subject to ratification, treaties acceded to in accordance with the resolutions of the Council of Ministers of the USSR shall, upon submission by the USSR Ministry of Foreign Affairs, be published in Sobranie postanovleniy Pravitel'stva SSSR ["Collection of the Resolutions of the Government of the USSR"].

"International treaties of the USSR, authentic texts of which are in foreign languages, shall be published in one of such languages along with an official translation into the Russian language.

The procedure for publication of international treaties of the USSR of interdepartmental nature shall be determined by the Council of Ministers of the USSR."

It is obvious that the Convention should have been published in the "Gazette of the Congress of People's Deputies of the USSR and of the Supreme Council of the USSR" (publication of which began in June 1989 replacing "Vedomosti Verkhovnogo Soveta Soyuza Sovetskikh Sotsialisticheskikh Respublik" ("Gazette of the Supreme Council of the Union of Soviet Socialist Republics")), and not in "Sobranie postanovleniy Pravitel'stva Soyuza Sovetskikh Sotsialisticheskikh Respublik" ("Collection of Resolutions of the Government of the Union of Soviet Socialist Republics"). Nevertheless, in 1991 the Convention appeared neither in the "Gazette of the Congress of People's Deputies of the USSR and of the Supreme Council of the USSR" nor in any other official edition of the USSR or Russia.

There is no doubt that the publication of the Convention in the "Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR" (as of issue 41, 1991, its name was changed to "Vedomosti Verkhovnogo Soveta SSSR" ("Gazette of the Supreme Council of the USSR")) was prevented by the fall of the USSR in December 1991. As a matter of fact, one ought to give due recognition to the Office for Publication of Acts of the Secretariat of the Supreme Council as the "Gazette" publisher: all of its 52 issues for 1991 were released, the final edition bearing the annual indicator, the last Decrees of the President of the USSR and the notice on discontinuance of the "Gazette" publication in connection with the abolition of the USSR Supreme Council. This evidently means that the official publication of the Convention in 1991 did not occur purely for certain technical reasons rather than by the omission of persons responsible for publications.

As is well known, after the USSR had ceased to exist, the Russian Federation continued to perform the rights and fulfil the obligations following from the international agreements concluded by the USSR.[4] Accordingly, the Convention continued to be effective for the Russian Federation. Hence the issue of its official publication in Russia continued to be topical.

Nevertheless, after 1991 the Convention was neither published in "Vedomosti S"ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR"[5] ("Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR")[6] nor in "Sobranie postanovleniy Pravitel'stva Rossiyskoy Sovetskoy Federativnoy Sotsialisticheskoy Respubliki" ("Collection of Resolutions of the Government of the Russian Soviet Federative Socialist Republic"), issued through out 1991. Further, it was neither published in "Sobranie postanovleniy Pravitel'stva Rossiyskoy Federatsii" ("Collection of the Resolutions of the Government of the Russian Federation"), issued in 1992 until July, nor in "Sobranie aktov Prezidenta i Pravitel'stva Rossiyskoy Federatsii" ("Collection of Acts of the President and the Government of the Russian Federation"), published subsequently from July 1992 through April 1994. Similarly, up until now the Convention has not been published in official continuing editions such as "Byulleten' mezhdunarodnykh dogovorov" ("Bulletin of International Treaties") published from March 1993, and "Sobranie zakonodatel'stva Rossiyskoy Federatsii" ("Collection of Legislation of the Russian Federation") published from May 1994.

However, it should be pointed out that the Convention was published in one of the departmental editions, namely in "Vestnik Vysshego arbitrazhnogo suda" ("Herald of the Higher Arbitrazh Court of the Russian Federation"),[7] No 1 of 1994.[8]

The fact of the latter is undoubtedly of some importance in clarifying the issue of the official publication of the Convention in Russia. However, two essential circumstances prevent treating the publication of the Convention in the "Herald of the Higher Arbitrazh Court of the Russian Federation" as the full value official publication in Russia. Firstly, this publication lacks official status. The "Herald" itself and the Russian regulatory acts that are currently in force indicate only that it is the edition of the Higher Arbitrazh Court of Russia but its official character is not mentioned anywhere. Considering that under Russian law stare decisis doctrine is not applicable, this fact is not at all surprising. Secondly, the "Herald" is of a departmental nature.

Does this mean that there is no official publication of the Convention in the Russian Federation? Not at all. In 1994, the publishing house "Mezhdunarodnye Otnosheniya" ("International Relations") released in Moscow a book entitled "Sbornik mezhdunarodnykh dogovorov SSSR i Rossiyskoy Federatsii. Vypusk XLVII. Mezhdunarodnye dogovory, zaklyuchennye SSSR i vstupivshie v silu s 1 yanvarya po 31 dekabrya 1991 goda, kotorye v nastoyashchee vremya yavlyayutsya dogovorami Rossiyskoy Federatsii kak gosudarstva - prodolzhatelya Soyuza SSR" ("Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII. International Treaties Concluded by the USSR which Became Effective from 1 January through 31 December 1991 and are at Present Treaties of the Russian Federation as the Successor State of the Union of SSR"). This "Collection" contains the text of the Convention on pages 335-357 and the following note is printed on the last page: "Official and Documentary Edition". Moreover, it was published under the auspices of the Ministry of Foreign Affairs of the Russian Federation. Besides, this book, as one can see from its title, is volume XLVII of the special series of collections of international treaties of the USSR (published since the 1920s) - the last issue published. Finally, one should take into account the fact that the book was published by a state-owned publisher.

It appears that today the text of the Convention in the said edition can be considered as the only official and authoritative one. It should be noted that the publication was not of a departmental nature; one cannot allege that the reference in this book to the Russian Ministry of Foreign Affairs attaches departmental status to it.

However, this does not mean that the publication in question is an ideal one.

Firstly, there is insufficient clarity regarding the status of the series of collections of international treaties of the USSR within which the book in question was published. For unknown reasons the note regarding the official status of the publications is not present in all volumes of this series.

Secondly, the book was published in 500 copies only. Does one need to explain that this is an insignificant number for Russia? Finally, the book was not distributed through subscription but was on free sale (though it is quite likely that it was purchased by certain major libraries). It is obvious that today it is a bibliographical rarity. If one compares it with the "Bulletin of International Treaties", to which anyone could subscribe and which was published in about 2,000 to 3,000 copies, the advantages of the latter are indisputable.

Thirdly, the text of the Convention in the book in question contains at least two serious misprints (to say nothing of some minor inconsistencies with the text approved by the UN conference). Thus, for instance, instead of the Russian term "aktsent" ("acceptance") in Article 12 of the Convention there is the word "aktsent" ("accent"). Instead of the Russian notion "dosledstvie" ("consequence") in Article 74 there is the word "dosledstvie" ("additional inquest"). However, after the blunders in publications, for instance, of the Federal Law "On Joint Stock Companies" No 208-FZ of 26 December 1995,[9] and of the Tax Code of the Russian Federation (Part One) No 146-FZ of 31 July 1998,[10] in which the number of errors increased by order of magnitude, the errors in the 1994 text of the Convention are not surprising, given the previous record of obvious inaccuracies in the mentioned series of collections of the USSR international treaties.

Deviating from the main purpose of the present article, it should be noted that the Russian text of the Convention suffers from a kind of "evil fate." It is well known that Article 68 of the official Russian text of the Convention adopted by the 1980 Conference [11] through technical omission failed to incorporate some provisions which exist in the English and French texts.[12] There are also other discrepancies in the official Russian text as compared to the English one. In addition, the official Russian text of the Convention adopted by the 1980 Conference contains a number of grammar and punctuation errors. Finally, different texts published in Russia are not uniform either (although in most cases it is a matter of minor discrepancies). Suffice it to say that even in the first authoritative Russian commentary on the Convention the text of the Convention provided once again at the end of the commentary differs from the text commented.[13]

A detailed analysis of all the above points could well constitute a topic for a separate study. Such a study would not be redundant for Russian law, as an important international treaty is at issue. Since the quality of its publication is far from ideal, this also raises the issue of the quality of publication of other international agreements and of the methods to prevent this from happening in the future.

Thus, on the grounds stated above it should be pointed out that although the Convention was officially published in the Russian Federation and was not departmental in nature, it was accompanied by some disappointing defects.

Having established the fact of the official publication of the Convention in Russia, we should raise three other very important questions: a) from what date is the Convention deemed to be officially published?; b) did the official publication of the Convention in Russia have any legal significance or was it unnecessary?; c) could the Convention be applied by Russian law application authorities from 1 September 1991, even prior to its official publication? To the author's best knowledge Russian doctrine has so far not elucidated these issues. The courts too, have not considered them.

The answer to the first question should be as follows: given that the precise date of publication of the book entitled "Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII …" is not reliably known, it is not possible to determine the precise date of the official publication of the Convention in Russia. It will be approximate in any case, somewhere during early 1994. Considering that the text of the book, as stated therein, was passed to press on 24 March 1993, put to print on 2 November 1993 and published in Tula [14] in 500 copies, one can assume 1 February 1994 to be the approximate date of the official publication of the Convention, allowing for all possible delays. We reiterate that the publication of the Convention in the "Herald of the Higher Arbitrazh Court of the Russian Federation", No 1 of 1994, cannot be regarded as the official version. Therefore we shall not consider this further.

The answer to the second question appears at first glance to be simpler. For instance, since under para. 4 of Article 15 of the Russian Constitution international treaties of the Russian Federation are a component part of its legal system and with regard to international treaties in general and to the Convention in particular, one can on the whole, omitting some legal details, apply the wording "regulatory legal act", so these international treaties and the Convention shall be automatically covered by the following provision of para. 3 of Article 15 of the Russian Constitution: "Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge" (below, we shall proceed from the assumption that the Convention is not covered by the following first provisions of para. 3 of the same Article 15: "Laws shall be officially published. Unpublished laws shall not be applicable." It appears that the term "law" in these provisions denotes a special form of internal regulatory act which is not to be identified with an international treaty. Nevertheless, the opposite opinion is also possible.[15] In that case any international treaty which is subject to ratification must be officially published. This point should not be disregarded with respect to the study below. However, we shall not consider it in details further).

Therefore it may follow from the above that the official publication of the Convention must have had substantive legal significance: without it the Convention would not be subject to application in Russia. This possible conclusion, however, requires further important circumstantiations.

It should be also stressed that official publication of international treaties is considered to be an essential prerequisite for their application not only in Russia but also in many developed Western states. "A substantive condition for the application of treaties by courts is their publication through an established procedure. Many cases are known where the courts refused to apply treaties not meeting this condition. On this basis the civil tribunal of the Seine Department in the judgment of 5 November 1955 in the case Nicholas Enterprises Company v. Trieste Company refused to apply the provisions of the Franco-Italian agreement of 1951.

In the judgment of 19 March 1981, the Cassation Court of Belgium clearly upheld the view that a treaty cannot make individuals liable and cannot be invoked against them if it has not been duly published.

The requirement that treaties be published and made public ensues from a major principle of law recognized by civilized nations under which an individual is obliged to abide only by those legal norms that have been published in a generally accessible form".[16] "In Austria, like in other West European countries though, great legal significance is attached to official publication. On 20 February 1952, the Supreme Court pronounced an Austrian-US intergovernmental agreement to be null and void in the intrastate sphere on the grounds that it had not been the consented to by the National Assembly and had not been published in ... [official] bulletin. The fact that it had been published in the official "Vienna Gazette" was found to be insufficient."[17]

The view that part 3 of Article 15 of the Russian Constitution should also apply to the international treaties of the Russian Federation is vigorously advocated by the contemporary Russian doctrine.[18] Accordingly, one cannot hold the view that para. 4 of Article 15 of the Russian Constitution [19] is aimed at automatic transformation of provisions of international treaties of Russia (at least those that affect the rights, freedoms and duties of a human being and citizen) into national regulation, directly applicable all the time regardless of the official publication of such treaties. However, one has to admit a certain deficiency in the wording in the paragraph at issue, due to which some may hold an opposite opinion.

The incorrectness of such an opinion is also proved by para. 3 of Article 5 of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 [20] which provides that "The provisions of the officially published international treaties of the Russian Federation, not requiring the adoption of intrastate acts for application, are of direct effect in the Russian Federation. Appropriate legal acts shall be passed to implement other provisions of international treaties of the Russian Federation." However, one must admit that in the quoted Article too the principle of binding official publication of an international treaty as a sine qua non condition of its application in the domestic sphere is expressed somewhat indirectly.

In connection with the above, one should make yet another substantial point: hereafter we shall proceed from the assumption that Article 27 "Internal Law and Observance of Treaties" of the Vienna Convention on the Law of Treaties of 23 May 1969 [21] ("A party may not invoke the provisions of its internal law as justification for failure to perform a treaty") applies exclusively in the sphere of international relations between states as subjects of international public law and not in the internal sphere. Only this interpretation of the rule in question can prevent the contradiction that otherwise arises between this rule and the requirement of the official publication of an international treaty, introduced not only by the Russian Constitution but also by the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995. Indeed, provided that Article 27 of the Vienna Convention on the Law of Treaties is recognized to be applicable in the internal sphere, any international treaty can be regarded as applicable in the Russian Federation from the moment of its entry into force for Russia, irrespective of the compliance with the requirement of Russian law that it should be officially published in Russia. This result, however, would only be possible given the following two assumptions:

(a) If para. 4 of Article 15 of the Russian Constitution is viewed in isolation from para. 3 of the same Article and if the principle Non obligat lex nisi promulgata is ignored; and

(b) If one recognizes the precedence of Article 27 of the Vienna Convention on the Law of Treaties over the Russian Constitution.

Assumption "(a)", however, would be incorrect: the provisions of the Russian Constitution cannot be independent of each other, while the principle Non obligat lex nisi promulgata is specifically proclaimed in it. In addition, this assumption is rejected by contemporary Russian doctrine, as it has already been stated. Assumption "(b)" is equally impossible in the sphere of Russian law: "In all circumstances one must presuppose that ratified treaties may revoke or establish any legal norm, except a constitutional one".[22]

As is well known Interpretare et concordare leges legibus, est optimus interpretandi modus. In light of this one is to assume that Article 27 of the Vienna Convention on the Law of Treaties is applicable exclusively in the sphere of relations between states as subjects of international public law. Thus everything falls into its proper place: a state cannot invoke, in it's relations with other states, the provisions of its internal law in justification of its non-compliance with a treaty and must do everything it can so that such internal provisions will not obstruct the performance of a treaty and its application in that state's territory. If a state does not do that it violates its own commitments vis-a-vis other states and will be liable. However, such an omission on the part of the state does not mean that the said provisions of its internal law should not apply in its courts. The situation in which an international treaty has entered into force for a state and must be fulfilled by it but is not recognized as applicable by its courts is not at all abnormal, if one regards the state as the subject of international public law, the obligations of which should not be treated as the obligations of its authorities responsible for application of internal regulations established by the state itself.

This is also supported by linguistic interpretation of Article 27 of the Vienna Convention on the Law of Treaties. Thus, the Article uses the terms "observance" and "failure to perform", while para. 3 of Article 15 of the Russian Constitution uses the term "apply". They apparently refer to different spheres of regulation and do not intersect. The former refers to the states as subjects of international public law, while the latter refers to internal law application authorities which are not parties to an international treaty and are not obliged to abide by it but rather to apply it. Such application can only occur once the state has imposed prerequisites in the legislation and then only within the limitations of such prerequisites: "It is absolutely obvious that a treaty, the existence of which has not been made known to the immediate performers, cannot be performed by them which means that the non-performance of an international treaty by specific persons automatically entails a violation of the treaty by the state. It follows from this that the publication of a treaty is one of the conditions of its bona fide performance but in itself has no effect on its validity".[23] Further on, Article 27 of the Vienna Convention on the Law of Treaties uses the term "a party." It is clear that this term applies only to the state in its relations with the other states rather than to the law application authorities of the former. In light of this it is impossible to require that such authorities be guided in their activities by Article 27 of the Vienna Convention on the Law of Treaties: it does not apply to them.

Returning to the Vienna Convention 1980, we reiterate that para. 3 of Article 15 of the Russian Constitution requires official publication only with regard to those regulatory legal acts (including, as it has already been pointed out, international treaties) which affect the rights, freedoms and duties of a human being and citizen.[24] Considering that the Convention was officially published after the Russian Constitution had taken effect (the Constitution entered into force on 25 December 1993, i.e. on the day of its official publication in "Rossiyskaya Gazeta" ("Russian Newspaper")), we ought to decide what significance this circumstance may have with regard to possibility of applying the Convention in the Russian Federation in the period between the date of entry into force of the Russian Constitution and the date of the official publication of the Convention (assumed to be on 1 February 1994). In other words, does the Convention affect the rights, freedoms and duties of a human being and citizen?

As regards para. 3 of Article 5 of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 which, as appears, deals with the official publication of all international treaties, not just those affecting the rights, freedoms and duties of a human being and citizen, this para. 3 should not be of interest to us, since by the time this Federal Law entered into force the Convention had already been officially published.

So one might assert that the Convention, being a regulatory legal act, does not affect the rights, freedoms and duties of a human being and citizen. If this is really so, then it is obvious that the issue of the official publication of the Convention is irrelevant, the applicability of the Convention is unconditional and the further analysis in the present article is pointless.

However, it appears that the Convention does affect such rights, freedoms and duties. Without going deep into details of what these rights, freedoms and duties are and giving the term "to affect" in the Russian Constitution the meaning of "being related to something",[25] let us point out that we may include among them the right to use freely one's abilities and property for entrepreneurial or other economic activity not prohibited by the law (part 1 of Article 34 of the Russian Constitution) or the right to have property in ownership, to possess, utilize and dispose of it both individually and jointly with other persons (part 2 of Article 35 of the Russian Constitution). Further on, one may assert that Article 12 [26] of the Convention as well affects the said rights, freedoms and duties.

In addition, scholarly objectiveness requires avoiding a simplistic view, and instead prefers the approach of providing for the strictest conditions for the applying of the Convention in the Russian Federation. By virtue of the above it should be assumed that para. 3 of Article 15 of the Russian Constitution must be extended to the Convention.

But if this is so, one can also assert that this paragraph applies not only in situations involving individuals but also in situations where the application of the Convention to relations with legal entities is at issue. In accordance with the interpretation provided by the Constitutional Court of Russia, the rules of the Russian Constitution also apply to legal entities since the latter are established by citizens for joint implementation of their constitutional rights, already mentioned, such as the right to use freely one's abilities and property for entrepreneurial and other economic activity not prohibited by law, as well as the right to have property in ownership, to possess, use and dispose of it both individually and jointly with other persons.[27]

Accordingly, one ought to assume that para. 3 of Article 15 of the Russian Constitution also extends to the Convention as a regulatory legal act affecting the rights and duties of both individuals and legal entities.

An important conclusion can be derived from the above: after 1 February 1994 (the assumed time of the official publication of the Convention) the possibility of its application in Russia is not subject to any doubt whatsoever, even despite all the imperfections related to its official publication. Neither the Russian Constitution nor the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995, nor any other Russian regulations render application of a regulatory act, including an international treaty, dependent in Russia on the absence of any errors in the publication or on the need to publish in excess of 500 copies.

But what about the possibility of applying the Convention in the period preceding 1 February 1994?

It has already been pointed out above that the provision of para. 3 of Article 15 of the Russian Constitution ("Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge") may lead us to the conclusion that official publication of the Convention should have substantive legal significance. Without it the Convention would not have been applicable in Russia.

Two points must be borne in mind, however, with regard to this conclusion: the absence in any regulatory act, as a general rule, of retroactivity and the special status of such legal acts as international treaties.

Thus, the first point permits the assertion that since neither the Russian Constitution nor the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 had retrospective effect, the rules contained therein on official publication can only extend for a period beginning after their entry into force but do not apply to the temporary periods preceding it.

This brings us to the third question: could the Convention be applied in the USSR or in the Russian Federation before the date of its official publication? Let us now try to find an answer to this question, leaving aside for a while the second one (concerning the legal significance of the official publication of the Convention in Russia), as in the final analysis the answer to the third question is expected to help us to resolve the second one with maximum objectivity.

Considering the above, as well as the fact that 1 February 1994 can be taken as the assumed date of the official publication of the Convention, the third question can be modified as follows: could the Convention be applicable in the USSR or in the Russian Federation from 1 September 1991 to the moment of its official publication, especially between 25 December 1993 (the date of entry into force of the Russian Constitution) and 1 February 1994?

Let us examine the question primarily with regard to the period between 1 September 1991 and 25 December 1993. First and foremost, the following problem arises: were there in the USSR and/or in the Russian Federation during that period any regulatory provisions stipulating that in the absence of the official publication an international treaty that had entered into force for the USSR and/or the Russian Federation was not subject to application on its territory?

The analysis of legislation in force at that time, as conducted by the author, permits the conclusion that these particular provisions were absent in the Soviet and/or Russian legislation.

There is no doubt that in the period in question there existed certain regulatory acts concerning the publication of international treaties that entered into force but they said nothing about the imperative requirement of their official publication and still less provided that applicability was dependent on such publication. This clearly follows from the above cited Article 5 of the USSR Law "On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of People's Deputies of the USSR, the Supreme Council of the USSR and Their Bodies" No 307-I of 31 July 1989, as well as from Article 25 of the USSR Law "On the Procedure for Conclusion, Performance and Denunciation of International Treaties of the USSR" No 7770-IX of 6 July 1978. The same can be stated with regard to Article 5 of the RSFSR Law "On the Procedure for Publication and Entry Into Force of the RSFSR Laws and Other Acts Adopted by the Congress of People's Deputies of the RSFSR, the Supreme Council of RSFSR and Their Bodies" of 13 July 1990,[28] to say nothing of the fact that it did not cover the Convention.

Nevertheless, it cannot be omitted that on 29 November 1990 the USSR Committee for Constitutional Supervision adopted the Opinion "On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens" No 12 (2-12).[29] The operative part stated: "Based on the above stated and guided by Article 124 of the USSR Constitution, by Articles 12, 18 and 21 of the USSR Law "On Constitutional Supervision in the USSR", the USSR Committee for Constitutional Supervision has concluded:

1. Publication of laws and other regulatory acts concerning the rights, freedoms and duties of citizens, i.e. making them in some way or other generally known is an essential condition for the application of these acts. Article 4 of the USSR Law "On the Procedure for Publication and Entry Into Force of the Laws of the USSR and Other Acts Adopted by the Congress of People's Deputies of the USSR, the Supreme Council of the USSR and Their Bodies", paragraphs 1, 2, 5 of the USSR Council of Minister Resolution "On the Procedure for Publication and Entry Into Force of the Resolutions and Decrees of the USSR Government" No 293 of 20 March 1959 and other regulatory provisions in that part where they directly or indirectly admit entry into force of unpublished regulatory acts concerning the rights, freedoms and duties of citizens, do not correspond to the Constitution of the USSR and to international acts on human rights and they become ineffective in that part from the moment of adoption of the present Opinion.

2. Based on Article 22 of the USSR Law "On Constitutional Supervision in the USSR" previously adopted but unpublished regulatory acts concerning the rights, freedoms and duties of citizens are subject to publication by the appropriate state bodies within three months from the day of adoption of the present Opinion. Acts which are not so published will become ineffective upon expiry of this term" (bold font supplied by the author - A.M.). As one can see, this Opinion directly pointed to the fact that applicability of a regulatory act depends on its being published. In light of the above, one ought hereafter to put aside the other provisions of this Opinion for the sake of greater simplicity.

One's attention is drawn to two points in the Opinion: firstly, it covers only regulatory acts concerning the rights, freedoms and duties of citizens and, secondly, it establishes the need not for the official publication of such acts but rather the need to publish them in general, i.e. the need of bringing them, in an appropriate way, to general knowledge (no formal criteria are set out in the Opinion for what should be considered the appropriate way of bringing the regulatory act to general knowledge. It appears, however, that it does not mean that such criteria should be or are absent: the wording "making generally known" indicates that a certain minimal number of published or otherwise circulated copies should also be determined, always with the principle of reasonableness in mind).

It follows from the above that the first of the two mentioned points is not supposed to have any significance with regard to the Convention: the latter ought to be considered as a regulatory legal act affecting the rights, freedoms and duties of both individuals and legal entities (moreover concerning them). The second point, however, is very substantial.

The following question arises in this respect: was the Convention published by 1 September 1991 or was it published later, albeit unofficially, that is to say, was it made generally known in some way or other?

The answer to this question must be positive: indeed, the text of the Convention was published, for example, by the publishing house of the Moscow Peoples' Friendship University in 1989 in the book entitled "Grazhdanskoe, torgovoe i semeinoe pravo kapitalisticheskikh stran. Sbornik normativnykh aktov. Obyazatel'stvennoe pravo" ("Civil, Trade and Family Law of Capitalist Countries. Collection of Regulatory Acts. The Law of Obligations") in 7,550 copies. This text is to be considered one of the very first publications of the Convention in Russian legal writings, although it was published even before the Convention entered into force for the USSR.

Moreover, in the early 1990s the publishing house "Mezhdunarodnye Otnosheniya" ("International Relations") released in Moscow in 12,300 copies a book by I.S. Zykin entitled "Dogovor vo vneshneekonomicheskoy deyatel'nosti" ("Contract in the Foreign Economic Activity"), the supplement to which contained the text of the Convention. Later on, in 1991, the book entitled "Sbornik mezhdunarodnykh dogovorov i drugikh dokumentov, primenyaemykh pri zaklyuchenii i ispolnenii vneshneekonomicheskikh kontraktov" ("Collection of International Treaties and Other Documents Applied to Conclusion and Fulfilment of Foreign Economic Contracts") with the text of the Convention was released in 12,000 copies under the auspices of the Chamber of Commerce and Industry of the USSR and the All-Union Association "Vneshekonomservis" (book compilers: V.V. Ivanov, P.A. Kravchuk; the consultant and the author of the foreword M.G. Rozenberg). In addition, the text of the Convention was published in 1991 in the seventh and eighth issues of the journal "Vneshnyaya Torgovlya" ("Foreign Trade") which was the theoretical and scholar-methodological edition of the Ministry of Foreign Economic Relations of the USSR (although it did not have the status of an official edition).[30]

Since all the publications mentioned were published before 1 September 1991, it should be pointed out that soon after 1 September 1991 the Foreign Economic Centre "Sovinteryur" in Moscow published in 6,000 copies M.G. Rozenberg's brochure entitled "Zaklyuchenie dogovora mezhdunarodnoy kupli-prodazhi tovarov" ("Conclusion of Contract for the International Sale of Goods") which also contained the text of the Convention (it is quite difficult to identify a more accurate date of the release of the brochure, even from indications in it: they give no exact information on its passing for press and putting to print. Nevertheless, according to the author of that brochure and some eyewitnesses, the date may refer to October or early November 1991). Also significant is the fact that the brochure in question was distributed among lawyers and other law practitioners in numerous seminars and conferences of that time dedicated to regulation of foreign economic activity.

It should also be noted that by 1 September 1991 the provisions of the Convention had been repeatedly examined in Russian legal writings [31] and the fact of the USSR adherence to it did not pass unnoticed by the Russian legal community.[32] It is also widely known that the text of the Convention was repeatedly published in different unofficial sources after 1 September 1991.

Thus, since all the above publications were issued in Moscow (one of them being in the journal of the Ministry of Foreign Economic Relations of the USSR), both before and after the entry into force of the Convention, and the aggregate number of copies was quite significant, it should be stated that the requirements of the Opinion of the USSR Committee for Constitutional Supervision "On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens" No 12 (2-12) of 29 November 1990 as applied to the Convention were met: by 1 September 1991 the Convention was published, albeit unofficially, i.e. it was made generally known precisely through publication in different printed editions accessible to everyone.

Therefore on 1 September 1991 the Convention not only entered into force for the USSR but also became applicable on its territory regardless of its official publication: for such applicability the legislation of that time was satisfied with quite an ordinary publication which was actually the case.

The above is also confirmed by the following: on 5 September 1991 the Fifth Special Congress of People's Deputies of the USSR adopted the "Declaration of Human Rights and Freedoms"[33] which in part 2 of Article 12 said: "Publishing laws and other regulatory acts shall be the essential condition of their application". As it can be seen, this Declaration also confined itself to requiring an ordinary, rather than official, publication.

It goes without saying that the Opinion of the USSR Committee for Constitutional Supervision No 12 (2-12) of 29 November 1999 and the said rule of the "Declaration of Human Rights and Freedoms" were only the first steps on the road to strengthening the principle Non obligat lex nisi promulgata in the Russian national law (this process has yet to be finished). In this connection one's attention is to be drawn to another two acts adopted in the Russian Federation, whose provisions have a bearing on the question now being examined.

Firstly, the Resolution of the RSFSR Supreme Council No 1920-I of 22 November 1991 adopted the "Declaration of Rights and Freedoms of a Human Being and Citizen",[34] part 2 of Article 35 of which provided: "The law providing for the punishment of citizens or restriction of their rights shall enter into force only after it has been published through the official procedure".

Secondly, on 30 November 1992 the Russian Constitutional Court adopted the Resolution "On the Case of Verification of Constitutionality of the Decrees of the President of the Russian Federation "On Suspending the Activity of the RSFSR Communist Party" No 79 of 23 August 1991, "On the Property of the CPSU and the RSFSR Communist Party" No 90 of 25 August 1991 and "On the Activity of the CPSU and the RSFSR CP" No 169 of 6 November 1991, as well as on Verification of Constitutionality of the CPSU and the RSFSR CP."[35] The next-to-last paragraph of section I of the declaration in the Resolution said: "Paragraph 6 of the Decree stipulated that it shall enter into force from the moment of its signing. However, under the general principles of law, any legal act which is generally binding and affects human rights, freedoms and duties, shall enter into force not earlier than it has been published or made generally known by other means". Para. 6 of section I of the operative part in Resolutionestablished: "To declare paragraph 6 of the Decree inconsistent with the general principle of law under which a law or any other regulatory act, providing for restriction of rights of citizens, shall enter into force only after it has been published through the official procedure".

Thus, on the one hand, the Constitutional Court of Russia reiterated the conclusions of the USSR Committee for Constitutional Supervision, and on the other hand - thanks to the RSFSR Supreme Council, there appeared a provision in Russian law, later reiterated by the Russian Constitutional Court in its Resolution of 30 November 1992, under which a law or any regulatory act [36] restricting the rights of citizens, shall enter into force only after its publication through the official procedure. It is interesting to note that the Russian Constitutional Court demonstrated inconsistency in the same Resolution: at first it mentioned the acts affecting human rights, freedoms and duties and raised the need for their publication in general but in the final analysis mentioned acts restricting the rights of citizens and then pointed to the need for their official publication.

In this respect the following question arises: is the provision of part 2 of Article 35 of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 applicable to the Convention? It appears that the answer should be negative. Firstly, it is hardly possible to assert that the Convention, even being a regulatory act, has introduced any restrictions on the rights of citizens or legal entities. There is no doubt, as was indicated above, that the Convention refers to and/or affects such rights. But it is also obvious that it regulates, rather than limits them. Of course, one can try to assert that such rights are restricted by Article 12 of the Convention under which a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention must be made only in writing, if at least one of the parties has its place of business in the Russian Federation (since the USSR made the appropriate statement when adhering to the Convention). Article 12 stated that "parties may not derogate from or vary the effect of this article". In response, one can point out that the Article in question does not constitute a restriction, given that Russian legislation had long ago prescribed a simple written form for foreign economic transactions under threat of its invalidity. This, in turn, can be countered by the argument that the fact of restricting rights is significant rather than the fact that they are more limited as compared to national legislation. This issue could be really disputed for a long time. But even if one agrees that the Convention has introduced some restrictions on the rights of citizens or legal entities (although it appears not to be the case) this will not be of any significance. The reason lies in the two above mentioned points: namely, the absence, as a general rule, of retroactivity in any regulatory act and the special status of such legal instruments as international treaties.

Thanks to the former, it should be stated that the above provision of part 2 of Article 35 of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 became valid only after the moment of its entry into force and should not apply to regulatory documents that had become effective before that moment.[37] When that moment was in reality is not important: of significance is that it occurred after the Convention had already been published. Indeed, since the Convention was published and under the valid legislation at the time (including the requirements of the Opinion of the USSR Committee for Constitutional Supervision No 12 (2-12) of 29 November 1990 and the "Declaration of Human Rights and Freedoms" of 5 September 1991) its application became possible, why would such a possibility cease to exist in conditions where the new requirement of obligatory official publication was not retroactive and nothing in the regulation indicated that the acts, previously capable of being fully applied, lost their applicability or needed to be officially published once again? It would be different if the Convention had not been published in the ordinary way by the time of introducing the requirement of obligatory official publication of regulatory acts or if the "Declaration of Rights and Freedoms of a Human Being and Citizen" had entered into force before 1 September 1991: in the case of the latter, there might be some doubts concerning the possibility of the application of the Convention.

Indeed, had it been otherwise, would the Opinion of the USSR Committee for Constitutional Supervision "On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens" No 12 (2-12) of 29 November 1990 contain this provision: "Based on Article 22 of the USSR Law "On Constitutional Supervision in the USSR" previously adopted but unpublished regulatory acts concerning the rights, freedoms and duties of citizens, are subject to publication by the appropriate state bodies within three months from the day of adoption of the present Opinion. Acts which are not so published will become ineffective upon expiry of this term"? It appears that in absence of such provision all the regulatory acts previously not published would continue to be applicable, while this Opinion would be of importance for the future only (including its provision that "Publication of laws and other regulatory acts concerning the rights, freedoms and duties of citizens, i.e. making them in some way or other generally known is an essential condition for the application of these acts").

The above is less doubtful by virtue of the second point underlined: i.e. the special status of such legal instruments as international treaties. Indeed, putting aside all we said above, we can assume that the previously applicable but not officially published national regulatory acts are no longer applicable from the moment of introducing the provision on mandatory official publication of such acts. But how can one assert that a regulatory act of a special legal nature such as an international treaty that has entered into force for the USSR and Russia and at the same time has become applicable by virtue of its publication (albeit unofficial), suddenly loses its applicability only because Russian legislation is supplemented by a provision on the need for official publication of regulatory acts, and circumstances where nowhere it is stated that this provision is treated as retroactive and where nothing to the effect that previously applicable acts are subject to a repeated official publication is stipulated? Obviously, it is the special legal nature of international treaties as regulatory instruments sui generis, determined by the principle of international law Pacta sunt servanda, that does not make it possible to agree with such assertions.

To justify the continued applicability of the Convention in Russia, despite the provision of part 2 of Article 35 of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991, one could also rely on considerations based on the correlation between the USSR law and that of the RSFSR and on the priority of the former from the viewpoint of the USSR which continued to exist until the end of 1991 but they appear to be overly complicated and redundant.

Finally, there is another nuance that has to be emphasized separately. It concerns the Decree of the President of the Russian Federation "On the Procedure for Publication of International Treaties of the Russian Federation" No 11 of 11 January 1993,[38] para. 1 of which provides that "1. International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are subject to official publication in the monthly "Byulleten' mezhdunarodnykh dogovorov" ["Bulletin of International Treaties"] of "Iuridicheskaya Literatura" ["Juridical Literature"] publishing house of the Administration of the President of the Russian Federation and also in "Rossiyskie Vesti" newspaper ["Russian Tidings"] in case of need.

"The said procedure applies to the international treaties of the Russian Federation, concluded or adhered to from 1 January 1992.

International treaties of the Russian Federation may be made generally known by other mass media and publishing houses."

Apparently parts 1 and 2 of the paragraph in question do not cover the Convention. However, this cannot be asserted with regard to part 3 of this para. 1.

Thus, the previous conclusion to the effect that the absence of an official publication of the Convention could in no way prevent its application in Russia under the legislation in force at that time, is even more convincing, given that the Decree of the President of the Russian Federation No 11 of 11 January 1993 introduced the necessity of the official publication only for those international treaties of the Russian Federation that were concluded or adhered to starting from 1 January 1992, simultaneously stipulating that the international treaties of the Russian Federation "may be made generally known by other mass media and publishing houses". It is obvious that, guided by the principles of Pacta sunt servanda and Favor pacti, this wording ought to be interpreted broadly. In different terms the wording is to be understood as not only providing an opportunity to make international treaties generally known unofficially as well as officially but also as including any unofficial publication of those international treaties that took effect for the Russian Federation before 1 January 1992. This broad interpretation is necessary to secure for such treaties their previously acquired quality of applicability, while ruling out their inapplicability on the grounds that their official publication is unavailable. It is a pity though that the Decree of the President of the Russian Federation No 11 of 11 January 1993 did not state so directly.

We should also note that as of today part 3 of para. 1 of the Decree of the President of the Russian Federation No 11 of 11 January 1993 cannot be construed as revoking the requirement of international treaties official publication or as ranking the bringing international treaties to public knowledge through other mass media and publishers with their official publication. Such interpretation is even more unallowable given the legal effect of para. 3 of Article 15 [39] of the Russian Constitution and of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995.[40] In other words part 3 of para. 1 of the Decree permits no more than unofficial parallel publication of international treaties along with the official one (and it can be also interpreted as stated above). However, sometimes courts in Russia misapprehend this provision in the Decree. For instance, the Federal Arbitrazh Court of the West-Siberian District held in the ruling of 15 October 2001 (case No F04/3120-669/A70-2001, a commercial legal entity v. Tyumen Customs Office [41]) that publication of an international treaty in a publicly available media is sufficient for its applicability in Russia, especially if the federal law on ratification of this treaty has been officially published. This approach seems to be wrong.

Accordingly, considering that from 1 September 1991 the Convention not only entered into force for the USSR but was also applicable on its territory under the legislation in force at that time, by virtue of its ordinary, albeit unofficial, publication, one ought to admit that it was applicable up to 25 December 1993, even after the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 was adopted and after the Resolution of the Russian Constitutional Court No 79 was passed on 30 November 1992 which both mentioned the need for official publication of regulatory acts (to say nothing of the fact that the applicability of these two documents to the Convention is at best very debatable). In other words, the absence of an official publication of the Convention could not in any way prevent its application in Russia in the period between 1 September 1991 and 25 December 1993.

We reiterate that doubts in respect of the above could only appear if the Convention had not been unofficially published by the time of the entry into force of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 (i.e. by 4 January 1992) or if the "Declaration" had entered into force before 1 September 1991. Considering that during the period between 1 September 1991 and 4 January 1992 the only full-scale publication of the Convention was effected by the above-mentioned brochure "Conclusion of Contract for the International Sale of Goods" by M.G. Rozenberg, it should be admitted that it is due to this writing that, in legal terms, the absolute possibility of applying the Convention in Russia in 1992, 1993 and in early 1994 (before its official publication) was ensured.[42] If M.G. Rozenberg's brochure did not exist and no efforts had been made by him, then in light of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991, one could doubt the applicability of the Convention in Russia before 1 February 1994. It demonstrates how a timely private initiative can influence problems of a national nature, especially when the state does not wish to have anything to do with them.

We have thus examined the possibility of applying the Convention during the period between 1 September 1991 and 25 December 1993. Our findings permit us to assert that our conclusions in respect of the subsequent period from 25 December 1993 to 1 February 1994 would not differ from the previous as regards the Convention applicability. Indeed, para. 3 of Article 15 of the Russian Constitution ("Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge") could not in any way give rise to the impossibility of applying the Convention in Russia, although its wording "regulatory legal acts" does cover the Convention. The two points raised earlier are again relevant: the absence of retroactivity, as a general rule, in any regulatory act (including the Constitution) and the special status of such legal instruments as the international treaties. There is no need to repeat what has already been stated above. However we would like to underline the fact that it is impossible to assert that a regulatory act, possessing a special legal nature, such as an international treaty which has taken effect for the USSR and Russia and has acquired the applicability by virtue of its publication (albeit unofficial), may all of a sudden lose such quality due only to a new provision (though constitutional) in the Russian law requiring the official publication of the regulatory acts. This is so particularly in the context where neither the Russian Constitution nor other federal acts grant any retroactivity to that provision, nor it is said anywhere that previously applicable acts are subject to further official publication.

Thus, even in the absence of its official publication, the Convention could fully apply in the USSR and Russia exactly from 1 September 1991 up to 1 February 1994 (when it was officially published).

This view may not be shared by some who believe there are technical legal grounds for asserting that from 25 December 1993 (or even from an earlier date) up to the moment of its official publication the Convention should not have been applied in the Russian Federation. Considering the incontestability of the provisions of the Russian Constitution, these grounds assume an even greater weight. From this point of view, any references to the Decree of the President of the Russian Federation "On the Procedure for Publication of International Treaties of the Russian Federation" No 11 of 11 January 1993 cannot be regarded convincing: although part 3 of para. 1 of the Decree uses the wording "made generally known", as is also the case with the provision in para. 3 of Article 15 of the Russian Constitution, it does not imply the term "officially". Accordingly, one can assert that technically part 3 of para. 1 of the said Decree contradicted the provision in para. 3 of Article 15 of the Russian Constitution and only the latter should have applied from that moment.

However, in light of the above one should not agree with this point of view. It is clear that such a position could only appear due to the uncertainty in Russian law as to the applicability of international treaties in Russia, in particular those that took effect for the USSR but were not published officially or published after 25 December 1993.

Nevertheless, in order to refute this incorrect position, one can point out that the Higher Arbitrazh Court of Russia rejected it and proposed each time to resort to part 3 of para. 1 of the Decree of the President of the Russian Federation "On the Procedure for Publication of International Treaties of the Russian Federation" No 11 of 11 January 1993. The Higher Arbitrazh Court suggested actually that in order to establish the possibility of applying an international treaty, the fact of its official publication should be disregarded. Thus, paragraphs 1 and 2 of the Resolution of the Plenum of the Higher Arbitrazh Court of Russia "On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure" No 8 of 11 June 1999 [43] says:

"1. Bearing in mind the provision of part 3 of Article 3 of the Arbitrazh Procedure Code of the Russian Federation that "If the international treaty of the Russian Federation establishes legal procedure rules other than those provided by the legislation of the Russian Federation, the rules of the international treaty shall apply", the arbitrazh courts in adjudicating cases shall take into account the following.

The arbitrazh court shall apply the international treaties of the Russian Federation which have entered into force and have been made duly generally known - international legal agreements, concluded by the Russian Federation with (a) foreign state(s) or an international organization in writing, regardless of whether the agreements are contained in one document or several related documents, as well as regardless of their specific title.

The international treaty of the Russian Federation is made generally known through publication.

2. Courts should take into account that treaties which entered into force for the Russian Federation (except those of inter-departmental nature) are subject to publication in "Sobranie zakonodatel'stva Rossiyskoy Federatsii" ["Collection of Legislation of the Russian Federation"], "Byulleten' mezhdunarodnykh dogovorov" ["Bulletin of International Treaties"], "Rossiyskaya Gazeta" ["Russian Newspaper"] and "Rossiyskie Vesti" newspaper ["Russian Tidings"]. International treaties of the Russian Federation, concluded by ministries and agencies, are published in official bulletins of such bodies. International treaties of the USSR that are binding on the Russian Federation as its legal successor were published in Collections of International Treaties of the USSR.

International treaties of the Member States of the Commonwealth of the Independent States may be made generally known in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments entitled "Sodruzhestvo" ["Commonwealth"].

International treaties of the Russian Federation may be made generally known through other mass media and publishing houses (Decree of the President of the Russian Federation No 11 of 11.01.93 "On the Procedure for Publication of International Treaties of the Russian Federation")" (bold font supplied by the author - A.M.).

There is no doubt that this position of the Plenum of the Higher Arbitrazh Court of Russia carries certain value and supports the view advocated in the present article.

At the same time, one may disagree with it and assert that the Plenum gave a somewhat free interpretation of existing laws, to say the least, and failed to take into account para. 3 of Article 15 of the Russian Constitution which must apply directly.

Indeed, it cannot be denied that such a statement would be fair to a certain extent: the Plenum of the Higher Arbitrazh Court of Russia was at least inaccurate with regard to the dependence of the application of an international treaty in the Russian Federation on its official publication. It would have been much more complete and accurate if the Plenum had pointed out that:

(a) An international treaty that entered into force for Russia after 25 December 1993 and before 17 July 1995 (when the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 was put in force) is to be applied in Russia exclusively after its official publication but only if it affects the rights, freedoms and duties of a human being and citizen (due to para. 3 of Article 15 of the Russian Constitution). If such rights, freedoms and duties are not affected by the treaty, it may be applied in Russia without official publication;[44]

(b) Any international treaty that entered into force for Russia after 17 July 1995 (when the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 was put in force) has effect in Russia only after its official publication (due to para. 3 of Article 5 of that Federal Law No 101-FZ);

(c) An international treaty that entered into force for Russia between 4 January 1991 and 25 December 1993 has effect in Russia only after its official publication, if it provides for the punishment of citizens or restricts their rights (due to part 2 of Article 35 of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991. If it does not provide for such punishment or restriction of rights, it may be applied in Russia without official publication;

(d) An international treaty that entered into force for Russia before 4 January 1992 (and for the USSR before 26 December 1991, i.e. before the day when it ceased to exist) has effect in Russia even without official publication, if it has been published or, in other words, made in some way or other generally known (not necessarily officially) but only if it concerns the rights, freedoms and duties of citizens (according to the Opinion of the USSR Committee for Constitutional Supervision "On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens" No 12 (2-12) of 29 November 1990). If it does not concern such rights, freedoms and duties, it may be applied in Russia even without publication;

(e) The foregoing is true only if an appropriate international treaty did not or does not require the adoption of an internal Soviet or Russian regulatory act to validate its provisions.

As it has been demonstrated above, all these conclusions follow from Soviet and Russian legislation in force in appropriate periods.

However, for some reason the Plenum of the Higher Arbitrazh Court of Russia opted to resort to a different, more simplified, approach. It certainly pointed out that "International treaties of the USSR that are binding on the Russian Federation as its legal successor were published in Collections of International Treaties of the USSR". Since not all such Collections have the status of official publications, as has already been mentioned, such an indication may be considered as an indirect recognition of the fact that an international treaty which entered into force for Russia before 25 December 1993 (or at least before 4 January 1992 when the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 became effective) is applicable in the Russian Federation even in the absence of its official publication, if it was still published, i.e. made in some way or other generally known (not necessarily officially). However, a direct indication rather than an indirect one would be preferable and it should have been mentioned that international treaties of the USSR were published unofficially not only in the above Collections. Having failed to point this out, the Plenum of the Higher Arbitrazh Court of Russia implied that such publications should not be taken into account, although it is not so.

In addition, it should also be said that while part 2 of para. 1 of the Resolution of the Plenum of the Higher Arbitrazh Court of Russia No 8 of 11 June 1999 uses the term "duly" with regard to the wording "made generally known" (which may be construed as an indication to the need for an international treaty to be officially published), the succeeding part 3 of para. 1 and part 3 of para. 2 do not use the term "duly" and first just say that an international treaty is made generally known through publication and then point out that this may be done through other mass media and publishing houses.

It is curious that the Plenum of the Higher Arbitrazh Court of Russia limited itself to the mentioning just publication, without clarifying the scale of such publication or saying what scale is reasonable. In this connection we may draw a parallel between Resolution No 8 and Opinion of the USSR Committee for Constitutional Supervision "On the Rules Admitting the Application of the Unpublished Regulatory Acts on the Rights, Freedoms and Duties of Citizens" No 12 (2-12) of 29 November 1990. Although neither the Opinion nor Resolution No 8 contain formal criteria on how a regulatory act (including an international treaty) should be duly made known generally in some way or other, it does not mean that such criteria do not exist: the wording "made generally known" indicates that there must be a certain minimal number of published or otherwise circulated copies, and this minimum must be determined applying the criteria of reasonableness.

Furthermore, we have certain doubts about the reference contained in the Resolution of the Plenum of the Higher Arbitrazh Court of Russia No 8 to the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments "Sodruzhestvo" ("Commonwealth"). At least rule 28 "Publication of Documents" of the Rules of Procedure of the CIS Council of the Heads of States and the Council of the Heads of Governments (approved by the Decision of the CIS Council of the Heads of States in Moscow on 17 May 1996 [45]) does not say anything about official publication: "The full texts of documents, adopted by the Council of the Heads of States and the Council of the Heads of Governments and open for publication, are published in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments "Sodruzhestvo" which shall be forwarded to the States and the Charter bodies". We did not find any indication in other international treaties and internal regulatory acts of Russia that this Herald has official status or that the texts of international documents published therein are of an official nature. At the same time Russian internal regulations mention other domestic editions, publications which are of an official status. Besides, the Information Herald "Sodruzhestvo" is published in Minsk, Byelorussia, that is outside Russia.

Considering all this, as well as the fact that international treaties "may revoke or establish any legal norm, except a constitutional one",[46] we can say that the publication of international treaties of the CIS member states in the Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments "Sodruzhestvo" will not be official under part 3 of Article 15 of the Russian Constitution (bearing in mind what has been said above with regard to the applicability of international treaties in Russia depending on their contents, the time of entry into force and ordinary or official mode of publication). Therefore many of the CIS treaties may not be applied directly in the Russian Federation.

However, in its Judgment of 15 July 1998 [47] the Supreme Court of Russia ruled otherwise (but without any substantiation of its position):

"Sirotenko filed a complaint with the Supreme Court of the RF, asking it to declare null and void ... the Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 "On Determination of the Goods Origin from the CIS Member States".

He indicated hereat that… According to para. 1 of the Directive of the State Customs Committee of 30 December 1996, the Rules for Determination of Country of the Goods Origination, approved on 24 September 1993 by the Decision of the Council of the Heads of Governments of Member States of the Commonwealth of the Independent States (inclusive of the revised version of para. 9 of the Rules, approved on 18 October 1996) should be applied to determine the origination of goods from the CIS Member States. In the opinion of Sirotenko, the State Customs Committee cannot instruct on the need of application of the said Rules, since the text of para. 9 in revised version has not been officially published on the territory of the Russian Federation and has only been published on the territory of the foreign state - in the city of Minsk in the Republic of Belarus, in the Information Bulletin "Sodruzhestvo" No 4 (24) of the Council of the Heads of States and the Council of the Heads of Governments of Member States of the Commonwealth of the Independent States which is not an official source of publication of regulatory acts of the Russian Federation. …

The demand of Sirotenko to declare null and void the Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 "On Determination of the Goods Origin from the CIS Member States" is not to be upheld, since the said Directive does not contradict the requirements of the legislation in force and does not violate the rights and freedoms of the applicant.

The Directive of the State Customs Committee of Russia of 30 December 1996 No 01-14/1465 was registered with the Ministry of Justice of the Russian Federation on 14 May 1997 under No 1303 and was published in accordance with the procedure, provided for by the Decree of the President of the Russian Federation No 763 of 23 May 1996."

It cannot be omitted that the judgment excerpts published in the "Bulletin of the Supreme Court of the Russian Federation" do not contain the following provision which is present in the judgment: "The arguments that the said Directive establishes in para. 1 the applicability of the Rules for Determination of Country of the Goods Origin, approved on 24 September 1993 by the Decision of the CIS Council of the Heads of Governments, cannot be the ground for upholding the demand of Sirotenko to declare null and void the Directive of 30 December 1996. The Decision of 24 September 1993 of the CIS Council of the Heads of Governments came into force and has effect on the territory of the Russian Federation".[48] Was the Supreme Court of Russia not determined enough to have this opinion published?

It is obvious that the Supreme Court of Russia either did not understand the claimant's argument or did not want and could not disprove it. It cannot be contested that the decision of the CIS Council of the Heads of Governments came into force for the states which adopted it. But its effect on the Russian territory and possibilities for the Russian authorities to invoke it are very doubtful.

Unfortunately, the same approach was used by the Arbitrazh Court of St. Petersburg and the Leningrad Region and the Federal Arbitrazh Court of the North-Western District in a dispute over the same Directive of the State Customs Committee of Russia No 01-14/1465 of 30 December 1996.[49] Besides, the publication of an international act in the Information Herald "Sodruzhestvo" was held sufficient for direct effect of that act in Russia by the Federal Arbitrazh Court of the Ural District in the rulings [50] of 11 December 1997 (case No F09-681/97-), of 16 January 1998 (case No F09-779/97-), of 21 January 1998 (case No F09-782/97-), of 5 February 1999 (case No F09-15/99-), of 23 June 2000 (case No F09-591/2000-). The Court also rejected the arguments that the international act had to be published in Russian official editions. The Arbitrazh Court of the Nizhny Novgorod Region took up the same position on this issue in rendering the judgment of 21 May 1997 (case No \16-44 [51]).

All this enables us to say that the Russian courts, while allowing the application of international treaties which became effective for Russia after 17 July 1995 (when the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 entered into force) and which were not officially published, repeatedly prefer a path that is different from that used in many developed countries.

It is rather strange though that the Russian authorities did not declare so far the Information Herald "Sodruzhestvo" to be an official edition in Russia. Doing this is no hardship.

The foregoing also gives us grounds to doubt, from the viewpoint of technical observance of the law, the faultlessness of the position of the Plenum of the Higher Arbitrazh Court of Russia, stated in paragraphs 1 and 2 of the Resolution "On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure" No 8 of 11 June 1999.

At the same time it is obvious that the approach of the Plenum of the Higher Arbitrazh Court of Russia is a practice-oriented palliative called upon to smooth over the unsatisfactory situation regarding the official publication in Russia of its international treaties. It offers courts a simplified approach to applying international treaties instead of taking into account complex and confusing regulations, as well as preventing wherever possible some undesirable situations where arbitrazh courts refuse to apply international treaties, if they have not been officially published in Russia (even though the necessity of such a refusal arises from existing laws). It is quite clear that strict compliance with regulatory requirements by courts at a time when issues of publication of international treaties do not get enough attention from the executive power may have extremely undesirable consequences. For example, the Convention between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains (Moscow, 15 February 1994) entered into force on 18 April 1997. However, it was officially published only on 5 July 1999.[52] The Convention between the United States of America and the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital (Washington, 17 June 1992) provides even a more impressive example. Although it entered into force on 16 December 1993 (that is before the Russian Constitution became effective), its provisions became partly applicable from 1 January 1994. However, it was officially published only on 19 April 1999 (as it appears from its publication in the "Collection of Legislation of the Russian Federation"[53]).

The texts of the two international treaties above were published unofficially many times. Obviously, the application of these treaties in Russia before their official publication may be justified only by the fact that they were made generally known unofficially, that is, through some mass media and publishing houses.

Regrettably, courts have to get out of the situation created by the omission of the executive power, by disobeying direct instructions contained in the laws but such are the realities of modern Russian regulation. On the whole, considering all the circumstances, we believe that the approach chosen by the Plenum of the Higher Arbitrazh Court of Russia is the least of two evils: let the state courts apply the international treaties effective for Russia, though published unofficially, as often as possible even in non-accordance with the domestic regulation, rather than refuse to apply them on the ground that they have not been officially published, thus trying to observe technically the domestic regulation but encouraging therethrough omission of the executive power. It is one of the cases when non-compliance with internal legislation may happen to be fairer than compliance with it.

However, such an approach should obviously be used with great caution and always with regard to the consequences of application or non-application of an international treaty that has been published unofficially. Moreover, there is another point that has to be emphasized separately: application of an international treaty published unofficially can never be allowed if this may result in disadvantageous consequences for an individual or a legal entity (which is not a state authority). This is particularly fair for disputes involving a state agency seeking application of unofficially published international treaty to its advantage.

As is well known Verba fortius accipiuntur contra proferentem. From this contra preferentem rule it follows that the state, once having declared the necessity of official publication of international treaties, is to be precluded subsequently from invoking the absence of such publication or irrelevance of publication exclusively to its own benefit. Indeed, why should the state interests be treated with preference under the circumstances where the state itself failed to take care of official publishing?

Unfortunately, the chances that this approach will be formally upheld by the Supreme Court of Russia and the Higher Arbitrazh Court of Russia are remote. Some courts can though take this approach into account in particular cases. For instance, it follows from the rulings [54] of the Federal Arbitrazh Court of the Volgo-Vyatskiy District of 9 November 2001 (case No 1046/5-k) and of 9 November 2001 (case No 977/5k) that the Ivanovo Customs Office invoked against a commercial legal entity the Agreement between the Government of Russia and the Government of the Azerbaijan Republic on Principles of Indirect Taxes Collection in Mutual Trade. The Arbitrazh Court of Ivanovo Region held this Agreement inapplicable since it had not been published officially. The Federal Arbitrazh Court of the Volgo-Vyatskiy District affirmed the judgement. At the same time the Federal Arbitrazh Court referred also to the Decree of the President of the Russian Federation No 11 of 11 January 1993 and pointed out that the Agreement was not published or made generally known otherwise. The Court did not mention the need of official publication.

So, now we can finally formulate our answers to the questions raised above. Could the Convention be applied in Russia from 1 September 1991? The answer to this question is obvious now: yes, it could be applied because it became effective before 25 December 1993 and since the legislation effective at the time [55] did not link the applicability of the international treaties to their mandatory official publication, as it considered making their contents generally known in some way or other (including unofficial publication) to be sufficient.

The aforesaid enables us to answer the second question put in the beginning of the present article: did the official publication of the Convention have any legal significance or was it not necessary at all? There can only be one answer to this question: the official publication of the Convention was necessary only for the purpose of eliminating all doubts regarding the applicability of the Convention in the Russian Federation. However, official publication to ensure the applicability of the Convention in Russia was not necessary for the reasons already stated above.

Nevertheless, why was the Convention neither officially published in the Soviet Union nor in the Russian Federation before 1 February 1994 (the date when it is believed to have been officially published) even though it became effective for the USSR as far back as 1 September 1991? There are two aspects to the answer to this question: one is factual and the other is legal.

As for the former, it is quite simple. The adoption by the Supreme Council of the USSR of the Resolution "On the Accession of the Union of Soviet Socialist Republics to the UN Convention on Contracts for the International Sale of Goods" No 1511-I was initiated, for a number of reasons, by the Ministry of External Economic Relations of the USSR. Of course, this Resolution was adopted with the consent of the Ministry of Foreign Affairs but its role in this process was not decisive. However, Article 5 of the USSR Law "On the Procedure for Publication and Entry into Force of the Laws of the USSR and Other Acts Adopted by the Congress of People's Deputies of the USSR, the Supreme Council of the USSR and Their Bodies" No 307-I of 31 July 1989 said: "International treaties which have entered into force for the USSR, concluded on behalf of the USSR and ratified by the Supreme Council of the USSR, shall, upon submission by the USSR Ministry of Foreign Affairs, be published in "Vedomosti S"ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR" ["Gazette of the Congress of the People's Deputies of the USSR and the Supreme Council of the USSR"] (bold font supplied by the author - A.M.). Obviously, the Convention was not published in the "Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR" or the "Gazette of the Supreme Council of the USSR" for technical reasons, namely due to the slow work of the Soviet bureaucratic mechanism and the lack of quick interaction between the Ministry of External Economic Relations and the Ministry of Foreign Affairs of the USSR. The period of about a year and a half appeared to be not enough for them to prepare the official publication of the Convention, especially since no one expected the USSR to collapse. Had the Resolution of the USSR Supreme Council No 1511-I been initiated by the Ministry of Foreign Affairs, the Convention might have been published in the "Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR" or in the "Gazette of the Supreme Council of the USSR."

From a legal point of view, after the possibility of publishing the Convention in the official edition of the USSR Supreme Council (due to its termination) had been lost, it could not have been published in the official editions of the Russian Federation in principle.

Indeed, it could not have been published in "Vedomosti S"ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR" ("Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR") or "Vedomosti S"ezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoy Federatsii" ("Gazette of the Congress of People's Deputies of the Russian Federation and of the Supreme Council of the Russian Federation"), because Article 5 of the RSFSR Law "On the Procedure for Publication and Entry Into Force of the RSFSR Laws and Other Acts Adopted by the Congress of People's Deputies of the RSFSR, the Supreme Council of RSFSR and Their Bodies" of 13 July 1990 [56] said that "International treaties, concluded on behalf of the RSFSR and ratified by the Supreme Council of the RSFSR, are published, upon submission by the Ministry of Foreign Affairs of the RSFSR, in "Vedomosti S"ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR" ["Gazette of the Congress of the People's Deputies of the RSFSR and the Supreme Council of the RSFSR"]. As we can see, the Convention did not fall under this Article.

It goes without saying that the Convention could not have been published in "Sobranie aktov Prezidenta i Pravitel'stva Rossiyskoy Federatsii" ("Collection of Acts of the President and the Government of the Russian Federation"). Further, when such an official edition as "Bulletin of International Treaties" was launched, the Convention could not have been published therein either, because the Decree of the President of the Russian Federation "On the Procedure for Publication of International Treaties of the Russian Federation" No 11 of 11 January 1993 [57] says: "1. International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are subject to official publication in the monthly "Bulletin of International Treaties" of "Iuridicheskaya Literatura" publishing house of the Administration of the President of the Russian Federation and also in the newspaper "Rossiyskie Vesti" in case of need.

The said procedure applies to the international treaties of the Russian Federation, concluded or adhered to from 1 January 1992". Obviously, part 2 of para. 1 of this Decree did not cover the Convention.

Finally, the Convention could not have been published in the "Collection of Legislation of the Russian Federation", because the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 which established the publication of the international treaties in this "Collection" could not have been applied to the Convention. It covered the relations which arose after 17 July 1995, and its Article 30 "Official Publication of International Treaties of the Russian Federation" could not have been extended to the Convention due to its easily noticeable different scope of application: "1. International treaties which have entered into force for the Russian Federation, the resolutions on the binding nature of which for the Russian Federation were taken in the form of a Federal Law, shall be subject, upon submission by the Ministry of Foreign Affairs of the Russian Federation, to official publication in Collection of Legislation of the Russian Federation".

We can say that the Convention was caught in a sort of a legal vacuum: the USSR which entered into the Convention ceased to exist, while for the Russian Federation the Convention turned out to be if not indispensable, then at the initial stage at least, not necessary or understandable.

Relying on the above, it is interesting to compare the history of the publication of the Convention with the history of the publication in Russia of another international treaty, namely the Convention Abolishing the Requirement of Legalization for Foreign Public Documents of 5 October 1961.[58] As is known, the accession to this Convention was approved by the Resolution of the Supreme Council of the USSR No 2119-I of 17 April 1991.[59] This Convention became effective not for the USSR but for the Russian Federation on 31 May 1992. Technically, it was not covered by para. 1 of the Decree of the President of the Russian Federation "On the Procedure for Publication of International Treaties of the Russian Federation" No 11 of 11 January 1993 either: it was signed and acceded to before 1 January 1992. Nevertheless, this paragraph of the Decree might have been construed broadly, i.e., as covering those international treaties that became effective for Russia starting from 1 January 1992. Therefore the Convention Abolishing the Requirement of Legalization for Foreign Public Documents was officially published in the "Bulletin of International Treaties", No 3 of 1993.

Therefore we can say that if the Convention had entered into force not on 1 September 1991 but only four months later, it could have been published officially in the "Bulletin of International Treaties."

But since it did not happen and since the Convention was caught in a legal vacuum (as well as many other international documents), it is obvious that in 1993 the Ministry of Foreign Affairs of the Russian Federation realized that the only way out of this situation was publishing a special official edition containing all international treaties that had become effective for the USSR in 1991 and which had not been published officially since then. So in 1994 the publishing house "Mezhdunarodnye Otnosheniya" ("International Relations") released in Moscow under the auspices of the Russian Ministry of Foreign Affairs the above mentioned book "Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII. International Treaties Concluded by the USSR which Became Effective from 1 January through 31 December 1991, and are at Present Treaties of the Russian Federation as the Successor State of the Union of SSR." It finished a special series of collections of international treaties of the USSR that had begun in the 1920s.

And the last question: can the Convention be published in current Russian official editions? Obviously, its publication in the "Collection of Legislation of the Russian Federation" is not possible due to para. 1 of Article 30 of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995. At the same time para. 2 of the same Article stipulates: "International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are also to be officially published, upon submission by the Ministry of Foreign Affairs of the Russian Federation, in the Bulletin of International Treaties". Therefore although this Federal Law applies to relations which arose after 17 July 1995, we can assume in principle that the Convention may be published in the "Bulletin of International Treaties." But will it make sense now, especially after the Convention has already been officially published, although in a small number of copies? It is quite doubtful.

We can assert on the whole that the Convention is luckier than other international treaties of the USSR that entered into force in 1991 (judging from the "Collection of International Treaties of the USSR and the Russian Federation. Issue XLVII …", there were more than 100 of them). The lack of the official publication of the Convention up until 1994 was compensated by its numerous unofficial publications, since outstanding Russian lawyers took part in drafting, adopting and promoting this unique document. If it had not been for this and the importance of the Convention subject of regulation, it would not have been published unofficially and there would not have been accessible information about it which in turn would have raised the issue of its inapplicability from 1 September 1991. There is no doubt that other international agreements of the USSR were not so lucky in this respect than the Convention.

So, after we have considered the issues connected with the official publication of the Convention in Russia, in conclusion we can point out some of the serious problems related to the application in Russia of its international treaties.

Firstly, all of the above shows that Russian law does not offer clear and definite regulation of the dependence of applicability of different international treaties of the Russian Federation on their official publication. At least para. 3 of Article 15 of the Russian Constitution speaks of mandatory official publication of any regulatory acts (which should mean international treaties as well) which affect the rights, freedoms and duties of a human being and citizen, while para. 3 of Article 5 of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 [60] requires impliedly official publication of any international treaty to ensure its direct effect in the Russian Federation. Paragraphs 1 and 2 of Article 7 of the Russian Civil Code make things even more confusing:

"1. The commonly recognized principles and norms of the international law and the international treaties of the Russian Federation are, in accordance with the Constitution of the Russian Federation, a component part of the legal system of the Russian Federation.

2. International treaties of the Russian Federation are directly applicable to relations, indicated in paragraphs 1 and 2 of Article 2 of the present Code, except in cases where it follows from an international treaty that adoption of a domestic act is required for its application."

As can be seen, para. 2 of this Article may be construed as declaring the applicability of any international treaty regulating civil law relations, even though it has not been published officially. Obviously, anyone willing can find many such discrepancies in Russian law.

Secondly, the issue of dependence of applicability of different international treaties of the USSR in the Russian Federation on their official or unofficial publication is very confusing.

Thirdly, the history of the official publication of the Convention in Russia serves as a vivid example of how negligently and carelessly the state authorities carried out what was and is called "reforms" in the legal field in Russia in the beginning of the 1990s.

Fourthly, the quality of official publications of international treaties creates great misgivings. If the Convention contained so many deficiencies, what can one anticipate as regards less important or less known international treaties?

Fifthly, it is quite surprising that many international treaties are published rather a long time after they have become effective for Russia. All this may cause serious difficulties for the legal relations participants.

Sixthly, it is even more surprising that many international treaties of the Russian Federation that have become effective and have been ratified have not yet been officially published. One of them, in particular, is the Seoul Convention Establishing the Multilateral Investment Guarantee Agency of 11 October 1985. It was ratified by the Resolution of the Supreme Council of the Russian Federation No 4186-1 of 22 December 1992 [61] but has not been officially published yet. There may be only one reason for this: either Russia has not deposited the instruments of ratification for this Convention, or it has been simply forgotten about this Convention. Both are equally discouraging.

Seventhly, the law application authorities of the Russian Federation are in a difficult situation due to the above mentioned attitude of the executive power towards the publication of international treaties in Russia. Sometimes law application authorities may have the need to violate the internal regulation in order to protect the interests of those involved in legal relations. Besides, due to absence of clear and simple regulation of these issues, they use either simplistic approaches (as follows from paragraphs 1 and 2 of Resolution of the Plenum of the Higher Arbitrazh Court of Russia "On Effect of International Treaties of the Russian Federation with Regard to the Issues of the Arbitrazh Procedure" No 8 of 11 June 1999) or ignore existing problems altogether (as the Supreme Court of Russia did in its Judgment of 15 July 1998).

It is quite surprising that up to date the issues of international treaties publication have not been reduced to order, although it is no hardship. Government agencies show obvious indifference to these issues. Probably, some of them find applying double standards advantageous. Indeed, it is rather convenient to refer in one case to applicability in Russia of a particular international treaty and in the other - to invoke the lack of official publication of the other treaty as an excuse for refusal to apply it.

Reference to the following example cannot be omitted: the Federal Arbitrazh Court of the North-Caucasus District in the ruling of 19 August 1999 (case No F08-1639/99-426A, a commercial entity v. Rostov Customs Office [62]) indicated that the Customs Office had produced the Letter of the Ministry of Foreign Affairs of Russia No 4828/dp of 7 April 1997 with elucidation that according to para. 2 of Article 30 [63] of the Federal Law "On International Treaties of the Russian Federation" No 101-FZ of 15 July 1995 the coming of international treaty into force for Russia is not dependent on existence or absence of its official publication. The Customs Office did it in proving applicability in Russia of an international act such as the decision of the CIS Council of the Heads of Governments which had not been officially published. The arguments in the Letter of the Ministry of Foreign Affairs of Russia are true but the coming of an international treaty into force for Russia, as has already been explained above, is not to be ranked with the applicability of that treaty by the Russian courts under the circumstances where it has not been officially published. It seems that the Customs Office tried intentionally to prove the contrary to the detriment of the commercial legal entity. Accordingly, one should always keep in mind the risk of the likewise approaches on the part of government agencies.

All the above facts cannot have but negative consequences for the Russian law in its entirety.

Of course, the above mentioned issues do not exhaust the problem of application of international treaties under Russian law. However, a mere description of other similar aspects would go beyond the scope of the present article and could be a topic for a separate article.

Thus, the history of the official publication of the Convention in Russia reveals not only the negligence of Russian state authorities regarding the official publication of international treaties (the importance of which is not questionable) but also the lack of attention of the state authorities to the application of such treaties in the Russian law. This history also helps to understand how careful and diligent the Russian legislator, the law application bodies and any lawyer should be while dealing with every legal relationship of an international nature or with a foreign element.


FOOTNOTES

* Candidate of Jurisprudence (Ph.D.), Professor of the Chair of Private International and Civil Law, Moscow State Institute of International Relations (University of the Ministry of Foreign Affairs of Russia.

1. A UN publication A/CONF.97/19. It was released on the market under number R.81.IV.3. In English vide: "United Nations Conference on Contracts for the International Sale of Goods. Vienna, 10 March - 11 April 1980. Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and the Meetings of the Main Committees" (New York, 1981), a UN publication A/CONF.97/19.

2. Vedomosti S"ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR (Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR), 1989, No 9, item 205.

3. Vedomosti Verkhovnogo Soveta SSSR (Gazette of the Supreme Council of the USSR), 1978, No 28, item 439.

4. Note of the Ministry of Foreign Affairs of the Russian Federation to the Heads of Diplomatic Representations of 13 January 1992. - Diplomaticheskiy Vestnik (Diplomatic Herald), 1992, No 2-3, p. 34.

5. The Russian Soviet Federative Socialist Republic.

6. Which as of issue No 6, 1992, was renamed to "Vedomosti S"ezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoy Federatsii" ("Gazette of the Congress of People's Deputies of the Russian Federation and of the Supreme Council of the Russian Federation"). It was published in both 1992 and 1993. In 1993, however, its release was interrupted.

7. Russian arbitrazh courts are the state judicial authorities and have nothing in common with arbitration tribunals. The Higher Arbitrazh Court of Russia is a top judicial authority in the system of the state arbitrazh courts in Russia which adjudicate private and administrative disputes of commercial and economic nature between legal entities and/or natural persons acting as entrepreneurs.

8. As to the editions of the other Russian higher judicial authorities, the Convention has never been published therein.

9. Rossiyskaya Gazeta (Russian Newspaper), 29 December 1995; Sobranie zakonodatel'stva Rossiyskoy Federatsii (Collection of Legislation of the Russian Federation), 1996, No 1, item 1.

10. Rossiyskaya Gazeta, 6 August 1998; Collection of Legislation of the Russian Federation, 1998, No 31, item 3824. The number of errors in the Code was so great that it was necessary to adopt separate Federal Law "On Introduction of Amendments and Additions to Part One of the Tax Code of the Russian Federation" No 154-FZ of 9 July 1999 which prescribed publishing the text of the Code once again mutatis mutandis (Collection of Legislation of the Russian Federation, 1999, No 28, item 3487).

11. "Konferentsiya Organizatsii Ob"edinennykh Natsiy po dogovoram mezhdunarodnoy kupli-prodazhi tovarov. Vena, 10 marta - 11 aprelya 1980 goda. Ofitsial'nye otchety. Documenty Konferentsii i kratkie otchety plenarnykh zasedaniy i zasedaniy glavnykh komitetov" (United Nations Conference on Contracts for the International Sale of Goods. Vienna, 10 March - 11 April 1980. Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and the Meetings of the Main Committees), p. 216.

12. Venskaya konventsiya o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov. Kommentariy (Vienna Convention on Contracts for the International Sale of Goods. Commentary). - Moscow, 1994, p. 236.

13. Ibid. Compare, for instance, paragraphs 1 of Articles 39 or Articles 68 in these two texts.

14. A Russian regional centre about 200 km from Moscow.

15. "The general provision of the Constitution on the publication of laws (part 3 of Article 15) extends to international treaties. Only officially published treaties may have direct effect." - Kommentariy k Federal'nomu zakonu "O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii" (Commentary to the Federal Law "On International Treaties of the Russian Federation"). - Moscow, 1996, p. 18.

16. Lukashuk I.I. Mezhdunarodnoe pravo v sudakh gosudarstv (International Law in the Courts of States). - St. Petersburg, 1993, pp. 132-133.

17. Ibid., p. 123.

18. "It should be considered that part four of Article 15 does not require the official publication of international treaties as the essential condition of their applicability. One can assert, however, that the international treaties affecting the rights, freedoms and duties of a human being and citizen cannot apply if they have not been published officially for general knowledge. This follows from the general principle established by part three of Article 15; since the Article speaks of the need for official publication of any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen, it is obvious that this requirement also extends to the regulatory acts of an international legal nature." - Konstitutsiya Rossiyskoy Federatsii. Kommentariy (The Constitution of the Russian Federation. Commentary) / General Editors: B.N. Topornin, Y.M. Baturin, R.G. Orekhov. - Moscow, 1994, p. 118.

19. "The commonly recognized principles and norms of international law and international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty shall apply."

20. Rossiyskaya Gazeta, 21 July 1995; Collection of Legislation of the Russian Federation, 1995, No 29, item 2757. This Law took effect from the day of its official publication.

21. Gazette of the Supreme Council of the USSR, 1986, No 37, item 772.

22. Kommentariy k Federal'nomu zakonu "O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii" (Commentary to the Federal Law "On International Treaties of the Russian Federation"). - Moscow, 1996, p. 18.

23. Galenskaya L.N. Primenenie mezhdunarodnykh dogovorov v arbitrazhnoy praktike (Application of International Treaties in Arbitrazh Practice). - Zhurnal mezhdunarodnogo chastnogo prava (Journal of Private International Law), 1997, No 3 (17), pp. 5-6.

24. We do not consider the first and the second rules in para. 3 of Article 15 of the Constitution of the Russian Federation.

25. But not the meaning of "to infringe": the latter, more narrow interpretation, on the one hand, sharply reduces the scope of society control over the law-making activity and, on the other, sharply expands the scope for arbitrariness in the law application sphere.

26. "Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article."

27. See, for example, Decision of the Constitutional Court of Russia No 20-P of 17 December 1996 on the case of verification of the constitutionality of paras 2 and 3 of part one of Article 11 of the Russian Federation Law "On Federal Tax Police Authorities" of 24 June 1993. - Rossiyskaya Gazeta, 26 December 1996; Collection of Legislation of the Russian Federation, 1997, No 1, item 197; Vestnik Konstitutsionnogo Suda Rossiyskoy Federatsii (Herald of the Constitutional Court of the Russian Federation), 1996, No 5, pp. 22-29. For instance, para. 4 of its preamble says: "The constitutional right of a human being and citizen laid down in Article 35 (parts 2 and 3) of the Constitution of the Russian Federation covers legal entities to the extent to which this right can by its nature be applicable to them."

28. "International treaties concluded on behalf of the RSFSR and ratified by the Supreme Council of the RSFSR shall be published in the "Vedomosti S"ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR" ["Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR"], upon submission by the Ministry of Foreign Affairs of the RSFSR.

International treaties of the RSFSR, equally authentic texts of which are in foreign languages, shall be published in the "Vedomosti" in one of these languages, supplied with the official translation into the Russian language." - Vedomosti S"ezda narodnykh deputatov RSFSR i Verkhovnogo Soveta RSFSR (Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR), 1990, No 6, item 93.

29. Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR, 1990, No 50, item 1080.

30. There were also the Russian texts of the Convention in the UN publications mentioned earlier in the present article.

31. Aktual'nye voprosy pravovogo regulirovaniya vneshney torgovli SSSR (The Topical Issues of Legal Regulation of the USSR Foreign Trade) / Edited by M.G. Rozenberg. - Moscow, 1981, pp. 82-87; Bardina M.P. Konferentsiya o vozmozhnosti soglasovaniya i sblizheniya mezhdu OUP SEV i Konventsiey OON o mezhdunarodnoy kuple-prodazhe (The Conference on the Possibility of Harmonization and Approximation of OUP SEV and the UN Convention on the International Sale of Goods). - Sovetskoe gosudarstvo i pravo (Soviet State and Law), 1989, No 6, pp. 132-134; Komarov A.S. Kontseptsiya otvetstvennosti za neispolnenie obiazatel'stv v Konventsii OON o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov (The Concept of Responsibility for Non-Performance of Obligations under the UN Convention on Contracts for the International Sale of Goods) / Iuridicheskie aspekty osushchestvleniya vneshneekonomicheskikh svyazey. Trudy kafedry mezhdunarodnogo chastnogo i grazhdanskogo prava MGIMO MID SSSR (The Juridical Aspects of Actualization of Foreign Economic Relations. Acta of the Chair of Private International and Civil Law of the MSIIR of the MFA of the USSR). - Moscow, 1979, pp. 64-72; Materialy seminara po Konventsii ob iskovoy davnosti i Konventsii o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov, razrabotannym v ramkakh Komissii OON po pravu mezhdunarodnoy torgovli (Proceedings of the Seminar on the Convention on the Limitation Period and the Convention on Contracts for the International Sale of Goods, developed within the framework of the UN Commission on International Trade Law). - Moscow, CMEA Secretariat, 1983, pp. 15-17, 54-134, 140-143, 148-191; Medvedev E., Rozenberg M. Konferentsiya OON po dogovoram mezhdunarodnoy kupli-prodazhi tovarov (The UN Conference on Contracts for the International Sale of Goods). - Vneshnyaya torgovlya (Foreign Trade), 1981, No 1, pp. 25-30; Musin V.A. Mezhdunarodnye torgovye kontrakty (International Trade Contracts). - Leningrad, 1986, pp. 8-10, 58-71, 74-75, 80-106, 110-115, 144-150; Musin V.A. Poryadok zaklyucheniya dogovora mezhdunarodnoy kupli-prodazhi (The Procedure for Concluding a Contract for the International Sale). - Sovetskoe gosudarstvo i pravo (Soviet State and Law), 1985, No 12, pp. 44-49; Rozenberg M.G. Mezhdunarodnoe regulirovanie postavok v ramkakh SEV (International Regulation of Deliveries within the CMEA Framework). - Moscow, 1989, pp. 10-12, 67-72, 98, 130, 133-134, 255; Liset Peres E. Unifikatsiya norm, reguliruyushchikh mezhdunarodnuyu kuplyu-prodazhu (na primere Konventsii OON 1980 goda o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov) (Unification of Norms Regulating International Sale (By the Example of the UN Convention 1980 on Contracts for the International Sale of Goods)). - Thesis for the Degree of Candidate of Jurisprudence. Moscow, 1988; Spasova-Stoyanova TS.A. IUNSITRAL i unifikatsiya prava mezhdunarodnoy torgovli (UNCITRAL and Unification of the International Trade Law). - Synopsis of the thesis for the Degree of Candidate of Jurisprudence. Moscow, 1987, pp. 6, 10, 17-25.

32. Komarov A. Novoe v pravovom regulirovanii vneshnetorgovykh kontraktov (Innovations in the Legal Regulation of Foreign Trade Contracts). - Vneshnyaya torgovlya (Foreign Trade), 1990, No 12, pp. 23-26; Rozenberg M. Konventsiya OON o dogovorakh mezhdunarodnoy kupli-prodazhi tovarov 1980 goda (The 1980 UN Convention on Contracts for the International Sale of Goods). - Khozyaistvo i pravo (Economy and Law), 1991, No 2, pp. 127-135.

33. Gazette of the Congress of People's Deputies of the USSR and the Supreme Council of the USSR, 1991, No 37, item 1083.

34. Gazette of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR, 1991, No 52, item 1865; Rossiyskaya Gazeta, 25 December 1991.

35. Vedomosti S"ezda narodnykh deputatov Rossiyskoy Federatsii i Verkhovnogo Soveta Rossiyskoy Federatsii (Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation), 1993, No 11, item 400.

36. Let us not interpret the term "law" in part 2 of Article 35 of the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 restrictively, considering that the Constitutional Court of Russia has done the same.

37. As far as the author is aware, the Declaration was officially published on 25 December 1991. The moment of its entry into force was indicated neither in it nor in the Resolution of the RSFSR Supreme Council of 22 November 1991. Accordingly, it entered into force on 4 January 1992, since Article 3 of the RSFSR law of 13 July 1990 "On the Procedure for Publication and Entry into Force of the RSFSR Laws and Other Acts Adopted by the Congress of the People's Deputies of the RSFSR and the Supreme Council of the RSFSR and Their Bodies" provided: "The laws of the RSFSR and other acts of the Congress of the People's Deputies of the RSFSR and the Supreme Council of the RSFSR of regulatory nature shall enter into force on the entire RSFSR territory simultaneously upon expiry of ten days from the day of their official publication." - Gazette of the Congress of People's Deputies of the RSFSR and of the Supreme Council of the RSFSR, 1990, No 6, item 93.

38. Sobranie aktov Prezidenta i Pravitel'stva Rossiyskoy Federatsii (Collection of Acts of the President and the Government of the Russian Federation), 1993, No 3, item 182. This Decree took effect from 26 January 1993.

39. "Laws shall be officially published. Unpublished laws shall not be applicable. Any regulatory legal acts affecting the rights, freedoms and duties of a human being and citizen may not apply unless they have been published officially for general knowledge."

40. Para. 3 of Article 5 of this Law stipulates: "The provisions of the officially published international treaties of the Russian Federation, not requiring the adoption of intrastate acts for application, are of direct effect in the Russian Federation. Appropriate legal acts shall be passed to implement other provisions of international treaties of the Russian Federation."

41. Not published. May be found in electronic law database "Konsul'tantArbitrazh: Zapadno-Sibirskiy Okrug" (ConsultantArbitrazh: West-Siberia District).

42. There may be a point of view that legal significance could only exist in the domestic publication of the Convention which took place after 1 September 1991 (i.e. after the entry into force of the Convention for the USSR) while up to 1 September 1991 any publications of the Convention were nothing but scholarly. In this case one is bound to admit that the possibility of applying the Convention appeared not on 1 September 1991 but later, after the above mentioned brochure by M.G. Rozenberg was released.

Nevertheless, the author of the present article does not share this view, believing that the Convention could be applicable in Russia exactly from 1 September 1991 due to the fact that by that date it had already been published in the ordinary procedure.

43. Vestnik Vysshego Arbitrazhnogo Suda Rossiyskoy Federatsii (Herald of the Higher Arbitrazh Court of the Russian Federation), 1999, No 8, pp. 5-6.

44. Besides, one should consider the possibility to extend the first and the second rules in para. 3 of Article 15 of the Russian Federation Constitution ("Laws shall be officially published. Unpublished laws shall not be applicable") to international treaties of Russia (footnote 15 supra). From this it may follow that any international treaty which is subject to ratification must be officially published under threat of its inapplicability.

45. "Ekonomicheskiy Soyuz" (Economic Union), Supplement to "Rossiyskaya Gazeta", 26 April 1997; Informatsionnyy vestnik Soveta glav gosudarstv i Soveta glav pravitel'stv SNG "Sodruzhestvo" (Information Herald of the CIS Council of the Heads of States and the Council of the Heads of Governments "Commonwealth"), 17 May 1996, No 3, p. 55.

46. Kommentariy k Federal'nomu zakonu "O mezhdunarodnykh dogovorakh Rossiyskoy Federatsii" (Commentary to the Federal Law "On International Treaties of the Russian Federation"). - Moscow, 1996, p. 18.

47. Byulleten' Verkhovnogo Suda Rossiyskoy Federatsii (Bulletin of the Supreme Court of the Russian Federation), 1999, No 1, pp. 10-11.

48. Not published. The citation is taken from the text which may be found in electronic law database "Garant."

49. Galenskaya L.N. Primenenie mezhdunarodnykh dogovorov v arbitrazhnoy praktike (Application of International Treaties in Arbitrazh Practice). - Zhurnal mezhdunarodnogo chastnogo prava (Journal of Private International Law), 1997, No 3 (17), pp. 6-7.

50. Not published. May be found in electronic law database "Konsul'tantArbitrazh: Uralskiy Okrug" (ConsultantArbitrazh: Ural District).

51. Not published. May be found in electronic law database "Garant."

52. Collection of Legislation of the Russian Federation, 1999, No 27, item 3188.

53. Collection of Legislation of the Russian Federation, 1999, No 16, item 1938; Byulleten' mezhdunarodnykh dogovorov (Bulletin of International Treaties), 1999, No 6, pp. 17-39.

54. Not published. May be found in electronic law database "Garant."

55. Apart from the "Declaration of Rights and Freedoms of a Human Being and Citizen" of 22 November 1991 and the Resolution the Russian Constitutional Court of 30 November 1992. However, their applicability to the Convention is rather questionable.

56. Gazette of the Congress of the People's Deputies of the RSFSR and the Supreme Council of the RSFSR, 1990, No 6, item 93.

57. Collection of Acts of the President and the Government of the Russian Federation, 1993, No 3, item 182.

58. Bulletin of International Treaties, 1993, No 6, pp. 13-16.

59. Gazette of the Congress of the People's Deputies of the USSR and the Supreme Council of the USSR, 1991, No 17, item 496.

60. Rossiyskaya Gazeta, 21 July 1995; Collection of Legislation of the Russian Federation, 1995, No 29, item 2757.

61. Gazette of the Congress of People's Deputies of the Russian Federation in the Supreme Council of the Russian Federation, 1993, No 1, item 22.

62. Not published. May be found in electronic law database "Konsul'tantArbitrazh: Severo-Kavkazskiy Okrug" (ConsultantArbitrazh: North-Caucasus District).

63. "International treaties which have entered into force for the Russian Federation (except treaties of inter-departmental nature) are also to be officially published, upon submission by the Ministry of Foreign Affairs of the Russian Federation, in the Bulletin of International Treaties".


Pace Law School Institute of International Commercial Law - Last updated April 18, 2002
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