Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
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Vol. 40, Nº 72 (2022), 842-855
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 06/09/2021 Aceptado el 28/11/2021
Legal transformations in the Ukrainian
legal system under the inuence of
international law
DOI: https://doi.org/10.46398/cuestpol.4072.51
Nataliia Morska *
Galyna Poperechna **
Iryna Svitlak ***
Nataliya Maslova ****
Liubov Kondratiuk *****
Abstract
The article is devoted to a topic as topical as the legal
transformations in the Ukrainian system under the inuence of
international law. Therefore, the aim of the article is to discuss
the theoretical and practical aspects of the study of the impact
of international law on domestic law, as well as to identify the
dierences and similarities between international law and
Ukrainian law in the specic eld of criminal and civil law. The methodological
basis of the study consisted in the use of the system-structural method,
which made it possible to determine the place of international legal norms
in the system of national legislation and, also, the comparative method
of international and Ukrainian legislation in force. In the main results
obtained, it is revealed that the transformation of Ukrainian legislation
is carried out mainly under the inuence of Western globalization, which
implies the transformation of a certain international law. It was concluded
that, in the legal sphere of Ukraine, international agreements have been
greatly inuenced by the transformation of international law through the
application of Ukrainian law through a process of legal synthesis.
* PhD in Phylosophical Sciences, Associate Professor Philosophy and Social Sciences Department,
Faculty of History Ternopil Volodymyr Hnatiuk National Pedagogical University, 46027, Ternopil 2
Maxyma Kryvonosa str. ORCID ID: https://orcid.org/0000-0002-6533-2802
** Candidate of Philosophical Science, Associate Professor of the Department of Philosophy and Social
Sciences Ternopil Volodymyr Hnatiuk National Pedagogical University, Faculty of History, Department
of Philosophy and Social Sciences, 46027, Ternopil, 2 Maxyma Kryvonosa str. ORCID ID: https://
orcid.org/0000-0003-2191-9908
*** Doctor in Juridical Sciences, Associate Professor Head of the Department of Economics and Law Legal
Regulations Vinnytsia Educational and Scientic Institute of Economics West Ukrainian National
University, Gonty Street, 37, city of Vinnytsya, 21017, Ukraine. ORCID ID: https://orcid.org/0000-
0002-4408-6868
**** Doctor of Science of Law, Docent Professor at the Department of Humanities and Fundamental Laws
of the University of Kharkiv. ORCID ID: https://orcid.org/0000-0002-2690-9517
***** Associate Professor PhD in Philosophical Sciences Ternopil Volodymyr Hnatiuk National Pedagogical
University, Faculty of History, Department of Philosophy and Social Sciences, 46027, Ternopil 2
Maxyma Kryvonosa str. ORCID ID: https://orcid.org/0000-0002-4709-0512
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CUESTIONES POLÍTICAS
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Keywords: legal transformation; legal harmonization; law enforcement;
rules of international law; comparative law.
Transformaciones en el sistema jurídico ucraniano
bajo la inuencia del derecho internacional
Resumen
El artículo está dedicado a un tema tan actual como las transformaciones
jurídicas en el sistema ucraniano bajo la inuencia del derecho internacional.
Por lo tanto, el objetivo del artículo es discutir los aspectos teóricos y
prácticos del estudio del impacto del derecho internacional en el derecho
interno, así como identicar las diferencias y similitudes entre el derecho
internacional y el derecho ucraniano en el campo especíco del derecho
penal y civil. La base metodológica del estudio consistió en la utilización del
método sistema-estructural, que permitió determinar el lugar de las normas
jurídicas internacionales en el sistema de legislación nacional y, asimismo,
el método comparativo de la legislación internacional y ucraniana vigente.
En los principales resultados obtenidos se revela que la transformación de
la legislación de Ucrania se lleva a cabo principalmente bajo la inuencia
de la globalización occidental, que implica la transformación de cierto
derecho internacional. Se llegó a la conclusión de que, en la esfera jurídica
de Ucrania, los acuerdos internacionales se han visto muy inuidos por
la transformación del derecho internacional mediante la aplicación del
derecho ucraniano mediante un proceso de síntesis jurídica.
Palabras clave: transformación legal; armonización jurídica; aplicación
de la ley; normas de derecho internacional; derecho
comparado.
Introduction
One of the central places in modern law is the issue of understanding and
signicance of the implementation of international law norms in domestic
legislation. The problematic issue of this sphere is considered the presence
of conicts, similarities, and dierences of interpretation of such norms,
their understanding, and the need for implementation in the legislation of
the signatory countries of international norms through appropriate treaties
of an international character. Therefore, the coverage of all aspects of such
legal phenomena as the legal transformation of international agreements
should contribute to the understanding of all aspects of international law
norms and improvement of ratication in domestic law.
844
Nataliia Morska Lvivna, Galyna Antonivna Poperechna, Iryna Svitlak, Nataliya Maslova y
Liubov Kondratiuk Romanivna
Legal transformations in the Ukrainian legal system under the inuence of international law
1. Purpose
The purpose of the article is to summarize the theoretical and practical
aspects of the impact of international law norms on domestic Ukrainian
legislation, as well as to identify the dierences and similarities of
international law norms with Ukrainian legislation on the example of
criminal and civil law in Ukraine. The aim was also to identify the existence
of existing problematic aspects in the sphere of criminal law and the
question of the need for the adoption of domestic special laws for the
implementation of international law norms.
2. Article Methodology
To clarify the essence of legal integration in law, it is necessary to
disclose the ways that are used to regulate integration (international-
legal) relations. They include harmonization, implementation (reception,
unication, incorporation). The methodological basis of the study consisted
of the system-structural method, which allowed to determine the place of
international legal norms in the system of domestic legislation and the
comparative method of current international and Ukrainian legislation
(Conventions, Laws, etc.).
3. Bibliographic overview
Eorts of modern jurists are directed to the consideration of the above
question on the transformation and harmonization of Ukrainian legislation.
Among such there are works.
In particular, Bronevytska and Serkevych (2020) analyzed more than
seventy international treaties and determined that almost all treaties are
not self-executing. They point to certain technical problems on the part
of the Ukrainian state represented by the executive authorities. A similar
opinion on this issue is held by scholar Sharmar, who notes that when
implementing certain provisions of the acts of international legal nature,
the domestic legislator does not necessarily take into account the specics
of the Ukrainian legislation on criminal liability.
4. Study results
The eld of international law has been studied as a science and as an
academic discipline for decades. Today, we can clearly say that it is a legal
eld, which aims to implement the regulation of both private and public law
at the international level.
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An important point is that the inuence of international law is a
signicant aspect of the formation of legal systems in dierent states
(Kvitka et al., 2021).
This sphere of inuence of such norms has been studied by scholars
of dierent countries for many years and is quite global and multifaceted
(European Commission for democracy through law, 2014).
The study of this issue of the inuence of international law norms on
domestic law is very relevant today and for Ukraine because the domestic
legal system has been undergoing signicant changes at the legislative level
for about 30 years.
First of all, it should be noted that examining this issue of transformation
of the legal system, it should be said that in the theory of international law
there are such concepts as “legal globalization” and its macro-level and
micro-level. It is clear that at the macro level the global legal system is
formed, hence at the macro level - the national one (Biriukova, 2018).
It should be noted that the transformation of domestic legislation is
carried out primarily under the inuence of the process of globalization,
thanks to which it is possible to learn more deeply the essence of legal
norms, as well as to see their further perspective (Marks, 2019).
It is considered that the legal system at the national level is a system
of law, which reects the national cultural, political, and socio-economic
peculiarities. Here the special importance of such a legal system is
highlighted, where there are signs of individuality, unity of such a society
(Santos, 2018).
Note that, according to domestic scientists, a signicant reason for the
cardinal change in the sphere of Ukrainian legislation was the fact that there
was a signicant conscious transition of society to the modern state of the
law, aimed at European standards. This happened due to the orientation
based on European models of legal consciousness (Drapohuz, 2015).
Therefore, the activity of states in the international arena and
participation in solving certain international problems occurs due to the
available political relations and the signing of international treaties (Aliyev,
2016).
In addition, in the theory of international law, the denition of the
processes of harmonization, convergence, and approximation deserves
special attention. These terms are closely related to the process of
transformation of the legal system itself.
Thus, harmonization of law should be understood as the goal of
unication and harmonization to a common understanding of the entire
846
Nataliia Morska Lvivna, Galyna Antonivna Poperechna, Iryna Svitlak, Nataliya Maslova y
Liubov Kondratiuk Romanivna
Legal transformations in the Ukrainian legal system under the inuence of international law
legal framework and legal institutions. Convergence should be understood
as a certain process of convergence or unication, which results in the
convergence of law-making, law-conscious, and law-enforcement activities
to harmonize the legal system (Mihajlenko, 2014).
According to the scholar Kresin, since the end of the twentieth century,
there has been a transformation of society at the global level in the world.
Due to this, there is an impact on all kinds of spheres of human social life.
Such as spiritual, economic, political, and legal. Thus, one of the topical
issues is the problem of transformation of legal norms of international law,
which has an important connection with the process of integration of legal
systems (Kresin, 2007).
Let us note that in the scientic legal space there are two types of
transformations of international legal norms, namely:
• General and special
The essence of the General is the introduction in a certain state of
a general norm, due to which the norms of international law have valid
legal force within a given state. At the same time, the notion of special
transformation should be understood as a process by which a state gives to
certain international legal norms the force of domestic action, reproduced
in a law or regulation, which is adapted to the norms of national legislation
(Usenko, 2009).
Such transformations are carried out directly, that is, through the
application of international legal norms within national law, for example,
when expressed through rules established by the constitution or laws (Van
Loo, 2021).
• This form of embodiment of the rules of law is called direct
transformation
For example, Article 9 of the Constitution of Ukraine states that
international agreements should be regarded as part of national legislation
Constitution of Ukraine, 1996, Art. 9.
It should be noted that the direct eect of such norms is authorized at
the level of domestic legislation. However, it should be said that there is
another form of the above transformation - incorporation, providing that
the norms of international law are considered part of the legislation of
the country and are implemented in domestic law. Such an application is
characteristic of such countries as Austria and Germany.
It should be noted that there is another type of transformation, as
opposed to direct, namely indirect. That is when for the recognition of
certain international legal norms, it is necessary to adopt or issue a national
normative legal act - a law, a regulation, etc. For example, in France, this
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CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 842-855
practice is typical for the recognition of international agreements. Article
53 of the Constitution of the French Republic says that all nancial or trade
treaties of an international nature are considered ratied in the territory
of France when the law is adopted at the national level and are considered
valid after the adoption of the law and ratication (Haustova, 2016).
We consider it necessary to highlight the main signicant changes
(transformations) that occurred in Ukraine under the inuence of
international law norms on the example of several domestic branches of
law.
But rst, it should be noted that the Ukrainian modern legal system today
is at the stage of development, which is called information, which means
obtaining a new sustainable and coherent legal system. Global threats and
challenges, as well as advantages, are taken into account here. At this stage,
an important aspect is not only certain individual elements of the legal
system and change in the legal system as a whole - the global transformation.
That is changes in external and internal relations (Haustova, 2014).
Summarizing the above opinion, we should mention the available
modernization in Ukraine, which is expressed in modern management
schemes of social and legal life, the purpose of which is primarily the
implementation of the principles of legality, justice, and equality in society.
In the scientic community, certain elements of such modernization are
distinguished.
We consider it necessary to consider them because of the importance of
understanding the transformation and implementation of international law
norms into domestic law. So, it is considered that the constituent elements
of the development of legal modernization are:
1. Extraordinary development of law based on the constitutional
principles of the rule of law and human rights.
2. The process of dierentiation and renewal of Russian law through
the congurations of economic development.
3. The process of humanization and rationalization of the sphere of
criminal and penal law.
4. The process of optimization of judicial proceedings.
5. Development of juridical science and education.
It should be noted that an important aspect of the way of modernization
of the Ukrainian legal system is considered the adoption of the Concept
of legal policy, which is carried out with globalization, which provides for
the transformation of certain international legal norms into Ukrainian
legislation.
848
Nataliia Morska Lvivna, Galyna Antonivna Poperechna, Iryna Svitlak, Nataliya Maslova y
Liubov Kondratiuk Romanivna
Legal transformations in the Ukrainian legal system under the inuence of international law
Such a Concept implies not only modernization of the legal system,
but also the introduction of new communicative, integration relations,
the establishment of an optimal balance in the sphere of international law
relations, as well as transition from the post-Soviet system to a high level
of legal consciousness, to a globalized legal system aimed at European and
world postulates and principles of law, norms, and standards. Above all, it
is also about protecting national interests and confronting big threats and
challenges (Haustova, 2016).
Summarizing the above information on the importance of
implementation of international law norms, in our opinion, it should be
noted the consideration of specic examples of legal transformation in the
national legal system, carried out under the inuence of international law
norms on the example of certain branches of domestic law.
As part of our study, we propose, rst, to consider this issue regarding
international implementation on the example of Ukrainian criminal law.
First of all, it should be noted that the most accurate denition, which
interpreted the meaning of the concept of “implementation”, is considered
a certain process, which allows the implementation of international legal
norms on the territory of the state, in the sphere of national law with its
help and according to a certain procedure, as well as provided through
organizational and legal activities of state bodies and aimed at the actual
implementation of international obligations of the state (Batyr’, 2014).
The above Law of Ukraine “On International Treaties of Ukraine”
establishes that international treaties of Ukraine are part of the national
legislation, subject to ratication by the legislative body. However, here a
number of questions of a more detailed and technical nature arise.
Research of such interpretation was conducted by scientist Bronevytska,
who in her work analyzed more than seventy international agreements and
determined that almost all agreements are not self-executing. That is, it
means that the provisions regarding international agreements, which are
enshrined in domestic laws on the binding nature of their implementation in
Ukraine, in practice cannot be unambiguously implemented due to certain
technical problems. For example, it is dicult to understand that certain
norms of international law establishing criminal liability for a certain list of
crimes can be implemented and act without implementing such norms in
the Ukrainian criminal code (Bronevytska and Serkevych, 2020).
Thus, to recognize the acts or omissions recommended in international
treaties, it is necessary to make certain changes in the criminal procedure
legislation and to assign a measure and type of punishment for such a
crime in the domestic law, because none of the international treaties under
consideration indicates a specic measure. punishment. It is believed that
this should be the prerogative of each state individually (Piddubna, 2016).
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A similar opinion on this issue is held by scholar Sharmar, who notes that
when implementing the implementation of certain provisions of the acts of
international legal nature, the domestic legislator does not necessarily take
into account the specics of Ukrainian legislation on criminal liability. With
this in mind, we can give the following example.
In 2006, namely on October 18, Ukraine ratied the Criminal Convention
on Combating Corruption, which was adopted back in 1999 in Strasbourg.
Thus, Article 3 of this Convention establishes that parties, i.e., countries
must take certain legislative and other measures that may be important
and necessary to introduce in their domestic legislation criminal liability
for the intentional commission or receipt by various ocials of any undue
advantage, either directly or indirectly for them personally or for other
persons. It can also be acceptance of promise or oer for granting such
advantage carried out for non-performance or execution of their ocial
powers (Criminal Law Convention On Corruption, 1999).
It should be noted that in Ukraine the legislator was guided by this
very Convention when making amendments to the current Criminal Code
of Ukraine (hereinafter - CC). But here the changes were made not only
for receiving or giving but also for oering or promising unlawful benets,
as well as for promising or oering any employee of state enterprises,
institutions, or organizations.
According to scholars who have studied this issue, in particular,
Sharmar, Bronevytska, such wording in the current Criminal Code is
inaccurate. They do not agree with this wording of such norms of law about
the criminalization of promises or oer or their acceptance to provide an
undue benet. These norms are enshrined in Articles 354, 368, 369, 370 of
the current Criminal Code.
The reason for such opinion is considered the fact that committing the
above-mentioned acts can only speak about a certain intention or opinion
to receive an unlawful benet because this does not speak about the corpus
delicti provided by Article 11 of the said Code (Criminal Code of Ukraine,
2001, art. 11).
However, in the case where individuals have come to a certain consensus
on the conditions and manner of implementation of their intentions
regarding the actions to provide or receive an undue benet, only then can
such actions be understood as preparation for a crime. Unfortunately, in
practice, it is almost impossible to take measures to prove or disprove such
arrangements.
In addition, speaking of similar inconsistencies, it should be mentioned
that a similar situation with the same implementation of international
criminal law has also developed with the concept of bribery. It is used in
some articles of the Criminal Code of Ukraine. As an interpretation, it is
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Nataliia Morska Lvivna, Galyna Antonivna Poperechna, Iryna Svitlak, Nataliya Maslova y
Liubov Kondratiuk Romanivna
Legal transformations in the Ukrainian legal system under the inuence of international law
a method of committing a crime (Article 386 of the CC), a component of a
socially dangerous act (Article 370 of the CC) or as a collective concept in
the content of which dierent socially dangerous acts are included (Articles
160, 354, 368).
Let us note that here we can conclude that the Ukrainian legislative body
has not reproduced a unied approach to the interpretation of the concept
of bribery in these articles of the Code. That is why to date there remains an
open concept regarding such term, because it is without indication of the
actions covered by such content (Zahynei, 2015).
Studying the problems of legal transformation of the norms of
international law in the sphere of the criminal law of Ukraine, we should
also mention the status of such implementation of borrowed norms in the
civil legislation of Ukraine as well.
As already noted, part of the domestic system of law are norms, that
is, rules of conduct established by the state in the face of the legislature.
Such norms are expressed primarily in legislative acts. At the same time,
norms of international civil law are considered part of the system of such
institutions and must be established together on the initiative of several
states. That is why it is impossible to recognize an international treaty as a
source of domestic law (Treskov, 2020; Panova et al., 2021).
As is known, treaties, which are international in nature, are considered
to take precedence over national legislation. This regulation of norms
marks the general direction of harmonization of international treaties with
domestic legislation, the prospect of which should be the unication of
norms of the civil law sector.
As in the criminal branch, the issue of conict of such similar legal
norms arises here as well (Stepanenko, 2018; Safonchyk et al., 2021).
So, the general rule is that if an international agreement has been
concluded earlier, then the domestic law will not come into force at all or
should even be repealed (United nations convention on contracts for the
international sale of good, 2010).
In the case of a domestic statutory act that has been previously enacted
- then such an act should become null and void as soon as the international
treaty enters into legal force. This is where the norms of action of the law
in time, established by Article 5 of the Civil Code of Ukraine should be used
(Mykhailiuk, 2019).
Note that international civil agreements should be applied only in
relations, the parties of which are persons who are citizens or legal entities
of certain parties to the treaty.
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Note that international agreements are included in civil legal relations if
the agreement itself does not establish the need to issue a domestic law to
apply such an agreement (Ivanova, 2021).
For example, let us note that the UN Convention of 1980, which
regulates relations under contracts for the international sale of goods,
should be subject to the application as a relevant source of domestic law
in accordance with its scope, namely under such international contracts
(Kvitka et al., 2021).
Thus, it should be noted that in practice there are two types of such
international agreements: containing norms of direct action and norms
that are aimed only at mandatory measures of the state regarding the
implementation, i.e., implementation of such norms of international law
into domestic law.
For example, we can mention the Law on bills of exchange and
promissory notes, as well as the Paris Convention for the protection of
industrial property of 1883 (Hamid Sitti Harlina, 2018).
In the norms of this act, it is noted that to provide registration of
trademarks should be introduced norms in the national law of the
participating countries. On this basis, Ukraine adopted the Law “On
Protection of Rights to Marks for Goods and Services”.
Measures on the priority of international legal norms in practice are
not applied to all international civil agreements. For example, the Berne
Convention for the Protection of Literary and Artistic Works denes that
the terms of protection of copyright for member countries may be regulated
in the following way: such countries are given the right to determine the
terms of protection of rights, exceeding the terms dened in the Convention
(Mykhailiuk, 2019).
Thus, it should be noted that in the civil sphere international agreements
have experienced great inuence precisely because of the transformation
of international civil law norms through implementation in Ukrainian
law. That is why they become a part of the sources of the Ukrainian legal
system. However, this applies to those issues, if international agreements of
Ukraine established rules that are not dened in the civil legislation.
Conclusions
Having studied the theoretical and normative-legal foreign and domestic
basis in the sphere of inuence of norms of international law between
states, the following conclusions can be made, namely, that the Ukrainian
modern legal system today is at the stage of development, which is called
852
Nataliia Morska Lvivna, Galyna Antonivna Poperechna, Iryna Svitlak, Nataliya Maslova y
Liubov Kondratiuk Romanivna
Legal transformations in the Ukrainian legal system under the inuence of international law
information. It should be mentioned about the available modernization
in Ukraine, which is expressed in modern management schemes of social
and legal life, the purpose of which is primarily the implementation of the
principles of legality, justice, and equality in society.
An important aspect of the way of modernization of the Ukrainian legal
system is considered the adoption of the Concept of legal policy, which
is carried out with globalization, which provides for the transformation
of certain international legal norms in the Ukrainian legislation. Such a
concept involves not only the modernization of the legal system but also the
introduction of new communication, integration ties, the establishment of
optimal balance in the relations of international law, as well as the transition
from the post-Soviet system to a high level of legal consciousness.
In addition, the current problems of implementation of international
law in the criminal law of Ukraine are also claried. It means, in particular,
that to be more detailed and informative, the legislative body of Ukraine
should make certain changes in the criminal procedural legislation and
expand and interpret certain aspects of international norms that do not
detail the regulation of criminal relations.
It was also found that, unfortunately, when implementing certain
provisions of acts of international legal nature, the domestic legislator does
not necessarily take into account the specics of Ukrainian legislation on
criminal liability.
In the civil sphere, international agreements have experienced a great
inuence precisely because of the transformation of norms of international
civil law through implementation to Ukrainian legislation. That is why they
become part of the sources of the Ukrainian legal system. However, this
refers to those issues if international agreements of Ukraine established
rules not dened in civil legislation.
Bibliographic References
ALIYEV, Subhan. 2016. “Theoretical and Practical Issues of the Implementation
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