International legal personality of peoples (nations) fighting for their independence. International legal personality of nations and peoples fighting for their independence. National sovereignty: the concept and methods of its implementation Legal personality of nations fighting

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International legal personality of nations and nationalities fighting for their independence

A feature of modern international law from the point of view of its subjects is that nations and peoples who are fighting for their state independence are recognized as participants in international legal relations and the creation of international law.

The struggle of nations and peoples for the formation of their own independent state is legal in accordance with international law and the UN Charter. This follows from the right of nations to self-determination - one of the most important international legal principles.

The UN Charter and other international legal documents in the relevant sections use the term "people" as a subject of self-determination, which does not affect the essence of the problem. In our science, the terms "people" and "nation" are considered equivalent and are often used both together.

The struggle of peoples (nations) for the formation of their own independent states is legal in any form - peaceful and non-peaceful, including in the form of a national liberation war. Moreover, the violent obstruction of the exercise of the right to self-determination, the preservation of colonialism in any form - old (in the form of any kind of direct colonial possession, occupation, protectorates, etc.) and new - in the form of neo-colonialism (unequal treaties, enslaving loans and credits, other foreign control) are incompatible with international law.

In the course of the national liberation struggle, the peoples can create their own governing bodies that exercise legislative and executive functions and express the sovereign will of the nations. In such cases, the struggling nations become participants in international legal relations, subjects of international law, which exercise their international rights and obligations through the above-mentioned bodies. These were, for example, the National Liberation Front of Algeria, the Popular Movement for the Liberation of Angola (MPLA), the Front for the Liberation of Mozambique (FRELIMO), the People's Organization of South West Africa (SWAPO). This is the Palestine Liberation Organization (PLO).

Like sovereign states, nations fighting for their state independence have full international legal personality, they can enter into relations with other states and international organizations, send their official representatives for negotiations, participate in international conferences and international organizations, conclude international treaties ... In the course of the armed national liberation struggle, nations and peoples, as well as states, enjoy the protection of the norms of international law designed in the event of war (on the regime of the wounded, prisoners of war, etc.), although these norms are often violated. In all these cases, we are talking, in essence, about the newly independent states being born in the course of the national liberation struggle, and therefore they are considered full subjects of international law.

The concept of the international legal personality of peoples (nations) fighting for independence was formed under the influence of the UN practice. And although peoples and nations fighting for independence are the primary subjects of international law, their international legal personality by this time was disputed by some authors. In addition, neither doctrine nor practice has developed clear criteria by which a certain nation and people fighting for independence should be recognized as subjects! international law. Most often, the decision to grant such status is based on political rather than legal criteria.

The idea of \u200b\u200brecognizing a people or nation fighting for the creation of an independent state arose long ago. For example, the Fourth Hague Convention of 1907 provided for a number of rights and obligations of such subjects during the war. However, the main role in the development of the doctrine regarding the granting of the status of subjects of international law was played by the influence of the UN in the 60-70s of the XX century. during the so-called decolonization The basis for this was the principle of self-determination of peoples, proclaimed in the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960 and subsequently confirmed by the 1970 Declaration. It provided for "... that every people has the right to self-determination and can freely establish its political status ...".

Not all peoples and nations have international legal personality, but only those that are fighting for the creation of their own state. At the same time, the nature of the struggle does not matter, it can be both military and peaceful. Peoples and nations that have created their own state, represented by it in the international arena. Thus, the status of a subject of international law of a people or nation is carried out as an exception, for a time until they have created their own state.

It is interesting that the doctrine and international documents use different meanings of the terms "people" and "nation". Although it is worth noting that in most cases known in history, the status of a subject of international law was recognized not so much for the people or nation that fought for independence, but for the national liberation movements that were the embodiment of this struggle. In addition, both "people" and "nation" are rather vague concepts, while the national liberation movements are much better organized and structured.

Since the end of the 70s of the XX century, that is, since the actual end of decolonization, there has been a gradual change in approaches to the issue of granting the status of a subject of international law to peoples and nations that are fighting for independence. First, it is increasingly emphasized that the principle of self-determination of peoples and nations is only one of the principles of international law and must be applied in conjunction with other principles of international law, in particular, territorial integrity and inviolability of borders. That is why a significant number of authors believe that the status of a subject of international law can be granted not to all peoples and nations that are fighting for independence, but only to those that exercise their right to self-determination, and when there is at least one of the following situations: 1) territories , annexed after 1945, belong to the so-called Non-Self-Governing Territories (an example of the former is Palestine, the latter is Guam); 2) if the state did not adhere to the principle of equality of certain groups of the population on ethnic, national, religious or other similar grounds (for example, Kosovo); 3) the constitution of a federal state provides for the possibility of secession from its composition of individual subjects (for example, the USSR).

Secondly, it is worth noting that the self-determination of peoples and nations is possible not only through the creation of an independent state, but also through various autonomies within another state.

If we talk about the rights and obligations of peoples and nations as subjects of international law, then it should be noted that they are significantly limited in comparison with the state. However, the following can be distinguished: the right to self-determination and the creation of an independent state; the right to recognition of the legal personality of the bodies that represent them; the right to obtain international legal protection both from international organizations and from individual states; the right to conclude international treaties and otherwise participate in the process of creating the norms of international law; the right to participate in the activities of international organizations; the right to independently implement the existing norms of international law. Among the main duties, one can single out the duty to adhere to the norms and principles of international law and to bear responsibility in the event of their violation.

Now the international legal personality of peoples and nations fighting for independence is recognized for the Arab people of Palestine. Some authors argue that the people of Western Sahara have a similar status. Let's consider the examples given in more detail.

Arab people of Palestine.

The population of the Israeli-occupied Palestinian territories is fighting for the creation (restoration) of their own state. The Arab people of Palestine are represented by the Palestine Liberation Organization (PLO), whose international legal personality was recognized in the 70s of the XX century. first by the Security Council and then by the UN General Assembly. Now he has observer status in the UN, the League of Arab States and other international organizations.

The UCP contacts a fairly large number of states, including Russia, Egypt, France, Syria, Lebanon, etc. Palestine is a party to several dozen universal international treaties, in particular, the Geneva Conventions of 1949 and the UN Conventions on the Law of the Sea of \u200b\u200b1982.

In 1993, the PLO signed the Washington Agreement, which provided for the creation of a temporary Palestinian Authority in the Israeli-occupied territories. Now this body exercises administrative and judicial power in the occupied territories. With the creation of the provisional Palestinian Authority, the PLO lost its status as a subject of international law, which is now recognized by representatives of the Autonomy's government.

The people of Western Sahara have a status similar to that of the Arab people of Palestine, their international legal personality is recognized by the UN, under which they received observer status.

In connection with the changes that have recently taken place in the international relations of the added subject, the terms "states at the stage of formation" and "nations that aspire to their statehood" are increasingly used.

The legal personality of the struggling nations, like the legal personality of states, is objective, i.e. exists independently of anyone else's will. Modern international law confirms and guarantees the right of peoples to self-determination, including the right to free choice and the development of their socio-political status.

The principle of self-determination of peoples will be one of the basic principles of international law, its formation falls on the late 19th - early 20th centuries.
It is worth noting that it acquired a particularly dynamic development after the October Revolution of 1917 in Russia.

With the adoption of the UN Charter, the right of a nation to self-determination finally completed its legal form as a basic principle of international law. The Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 concretized and developed the content of this principle. To the fullest extent, its content was formulated in the Declaration of Principles of International Law of 1970, which states: “All peoples have the right to freely determine, without outside interference, their political status and to carry out economic, social and cultural development, and each state is obliged to respect ϶ ᴛᴏ law in accordance with the provisions of the UN Charter ”.

Let us note the fact that in modern international law there are norms confirming the legal personality of the struggling nations. Nations fighting for the creation of an independent state are protected by international law; they can objectively apply coercive measures against those forces that prevent the nation from acquiring full international legal personality and formalizing it into a state. But the use of coercion is not the only and, in principle, not the main manifestation of the international legal personality of nations. The subject of international law can only be recognized as a nation that has a political organization that independently performs quasi-state functions.

In other words, the nation should have a pre-state form of organization: the popular front, the rudiments of the organs of power and administration, the population in the controlled territory, etc.

It should be borne in mind that international legal personality in the proper sense of his word can (and do) not all, but only a limited number of nations - nations that are not formalized into states, but striving to create them in accordance with international law.

Based on the above, we come to the conclusion that practically any nation can potentially become a subject of self-determination legal relations. At the same time, the right of peoples to self-determination was fixed in order to combat colonialism and its consequences, and as a norm of anti-colonial orientation it fulfilled its task.

Today, another aspect of the right of nations to self-determination is acquiring special significance. Today we are talking about the development of the nation, which has already cheerfully determined its political status. In the current conditions, the principle of the right of nations to self-determination must be harmonized, consistent with other principles of international law and, in particular, with the principle of respect for state sovereignty and non-interference in the internal affairs of other states. In other words, it is no longer necessary to talk about the right of all (!) Nations to international legal personality, but about the right of a nation that has received its statehood to develop without outside interference.

A struggling nation enters into legal relations with the state that controls this territory, other states and nations, and international organizations. By participating in specific international legal relations, it acquires additional rights and protection.

Distinguish between rights that the nation already possesses (they follow from national sovereignty), and rights for the possession of which it fights (stem from state sovereignty)

The legal personality of a struggling nation contains a set of the following fundamental rights: the right to independent expression of will; the right to international legal protection and assistance from other subjects of international law; the right to participate in international organizations and conferences; the right to participate in the creation of the norms of international law and independently fulfill the international obligations assumed.

Based on all of the above, we come to the conclusion that the sovereignty of a struggling nation is characterized by the fact that it does not depend on its recognition as a subject of international law by other states; the rights of a fighting nation are protected by international law; the nation on its behalf has the right to apply coercive measures against violators of its sovereignty.

The legal personality of the struggling nations, like the legal personality of states, is objective, i.e. exists independently of anyone else's will. Contemporary international law confirms and guarantees the right of peoples to self-determination, including the right to free choice and development of their socio-political status.

The principle of self-determination of peoples is one of the basic principles of international law, its formation falls on the late 19th - early 20th centuries. It acquired especially dynamic development after the October Revolution of 1917 in Russia.

With the adoption of the UN Charter, the right of a nation to self-determination has finally completed its legal form as the basic principle of international law. The 1960 Declaration on the Granting of Independence to the Colonial Countries and Peoples specified and developed the content of this principle. Its content was most fully formulated in the 1970 Declaration of Principles of International Law, which states: “All peoples have the right to freely determine, without outside interference, their political status and to pursue their economic, social and cultural development, and each state is obliged to respect this right in in accordance with the provisions of the UN Charter ”.

In modern international law there are norms confirming the legal personality of the struggling nations. Nations fighting for the creation of an independent state are protected by international law; they can objectively apply coercive measures in relation to those forces that prevent the nation from acquiring full international legal personality, registration in a state. But the use of coercion is not the only and, in principle, not the main manifestation of the international legal personality of nations. Only a nation that has its own political organization, independently performing quasi-state functions, can be recognized as a subject of international law.

In other words, the nation should have a pre-state form of organization: the popular front, the rudiments of the organs of power and administration, the population in the controlled territory, etc.

It should be borne in mind that international legal personality in the proper sense of the word can (and do) not all, but only a limited number of nations - nations that are not formalized into states, but striving to create them in accordance with international law.

Thus, practically any nation can potentially become the subject of self-determination in legal relations. However, the right of peoples to self-determination was fixed in order to combat colonialism and its consequences, and as an anti-colonial norm, it fulfilled its task.

Currently, another aspect of the right of nations to self-determination is acquiring special significance. Today we are talking about the development of a nation that has already freely defined its political status. In the current conditions, the principle of the right of nations to self-determination should be harmonized, consistent with other principles of international law and, in particular, with the principle of respect for state sovereignty and non-interference in the internal affairs of other states. In other words, it is no longer necessary to speak about the right of all (!) Nations to international legal personality, but about the right of a nation that has received its statehood to develop without outside interference.

A struggling nation enters into legal relations with the state that controls this territory, other states and nations, and international organizations. By participating in specific international legal relations, it acquires additional rights and protection.

Distinguish between the rights that the nation already possesses (they follow from national sovereignty), and the rights for the possession of which it fights (stem from state sovereignty).

The legal personality of a fighting nation includes a set of the following fundamental rights: the right to independent expression of will; the right to international legal protection and assistance from other subjects of international law; the right to participate in international organizations and conferences; the right to participate in the creation of the norms of international law and independently fulfill the international obligations assumed.

International organizations

Only international intergovernmental organizations belong to the derivative (secondary) subjects of international law. Non-governmental international organizations do not possess this quality.

Unlike the legal personality of states, the legal personality of international intergovernmental organizations is functional in nature, since it is limited by the competence, as well as the goals and objectives defined by the constituent document.

Often, international organizations are recognized as having the right to “implied powers,” that is, those that the organization is entitled to exercise in order to exercise statutory functions, but which are not spelled out in the charter. This concept can be accepted if it implies the consent of the members of the organization.

In addition to intergovernmental organizations, other international bodies may also be subjects of international law. So, in accordance with Art. 4 of the Rome Statute of the International Criminal Court of July 17, 1998, the named court has international legal personality. Naturally, the legal personality of the International Criminal Court is limited in comparison with that of intergovernmental organizations. The International Criminal Court has such international legal personality that is necessary for the implementation of the goals and objectives within its competence.

Nations (peoples) fighting for independence

If a nation (people) begins a struggle for independence and creates liberation bodies that effectively manage and control a significant part of the people and territory, ensure compliance with the norms of the MP during the struggle, and also represent the people in the international arena, then they can be recognized as / d legal property.

The belligerent - the National Committee "Fighting France", later - the French Committee for National Liberation, the Palestine Liberation Organization (PLO).

State-like formations

The Vatican (Holy See) belongs to the state-like formations.

The Vatican State is a special entity created in accordance with the Lateran Treaty between Italy and the Holy See of February 11, 1929 and endowed with some features of statehood, which means a purely formal expression of the independence and independence of the Vatican in world affairs.

It is now generally accepted that the Holy See is a subject of international law. He received such recognition from the international community due to his international authority as an independent leading center of the Catholic Church, uniting all Catholics in the world and actively participating in world politics.

It is with the Vatican (Holy See), and not with the city-state, that the Vatican maintains diplomatic and official relations in 165 countries of the world, including the Russian Federation (since 1990) and practically all CIS countries. The Vatican participates in many bilateral and multilateral international agreements. Has the status of an official observer at the UN, UNESCO, FAO, is a member of the OSCE. Vatican concludes special international agreements - concordats, which regulate the relationship of the Catholic Church with state authorities, has ambassadors in many countries, called nuncios.

In the international legal literature, one can find the statement that the Sovereign Military Order of St. John of Jerusalem, Rhodes and Malta (Order of Malta).

After the loss of territorial sovereignty and statehood on the island of Malta in 1798, the Order, reorganized with the support of Russia, settled in Italy in 1844, where its rights of sovereign formation and international legal personality were confirmed. Currently, the Order maintains official and diplomatic relations with 81 states, including the Russian Federation, is represented by an observer at the UN, and also has its official representatives at UNESCO, FAO, the International Committee of the Red Cross and the Council of Europe.

The headquarters of the Order in Rome enjoy immunity, and the head of the Order, the Grand Master, has the immunities and privileges inherent in the head of state.

However, the Order of Malta is in essence an international non-governmental organization carrying out charitable activities. The retention of the term “sovereign” in the name of the Order is a historical anachronism, since only the state has the property of sovereignty. Rather, this term in the name of the Order of Malta from the point of view of modern international legal science means "independent" than "sovereign".

Therefore, the Order of Malta is not considered a subject of international law, despite such attributes of statehood as maintaining diplomatic relations and possessing immunities and privileges.

The history of international relations also knows other state-like formations that possessed internal self-government and some rights in the field of international relations. Most often, such formations are temporary in nature and arise as a result of unsettled territorial claims of different countries to each other. It is to this category that the Free City of Krakow (1815-1846), the Free State of Danzig (now Gdansk) (1920-1939), and in the post-war period the Free Territory of Trieste (1947-1954) and, in a certain degree, West Berlin, which enjoyed a special status established in 1971 by a quadripartite agreement between the USSR, the USA, Great Britain and France.

Subjects of federal states

Components international legal status republics, regions, territories and other subjects of the Russian Federation are embodied in the Federal Law of January 4, 1999 "On the coordination of international foreign economic relations of the subjects of the Russian Federation." First of all, the constitutional right of the subjects of the Russian Federation was confirmed and concretized within the powers granted to them to carry out international and foreign economic relations, that is, the right to relations that go beyond the domestic framework. The subjects have the right to maintain ties with the subjects of foreign federal states, administrative-territorial formations of foreign states, and with the consent of the Government of the Russian Federation - with the state authorities of foreign states. It also provides for the right to participate in the activities of international organizations within the framework of bodies created specifically for this purpose. Relations of subjects with foreign partners, according to the Law, can be carried out in trade and economic, scientific and technical, economic, humanitarian, cultural and other areas. In the process of this activity, the constituent entities of the Russian Federation have the right to negotiate with these foreign partners and to conclude agreements with them on the implementation of international and foreign economic relations. Such agreements are concluded primarily with equal-level counterparties - with members (subjects) of foreign federal states and with administrative-territorial units of unitary countries. At the same time, the practice of relations with the central authorities of foreign states remains.

At the same time, the Constitutional Court of the Russian Federation, in its ruling of June 27, 2000, confirmed its legal position that "a republic cannot be a subject of international law as a sovereign state and a participant in relevant interstate relations ...". When interpreting this provision, it is permissible to emphasize precisely the denial of the sovereign status of the republic, which means the recognition and implementation of international and foreign economic relations (ties) not based on sovereignty with certain counterparties specified in the Federal Law of January 4, 1999 No.

Individuals

Some textbooks abroad and in Russia claim that the subjects of MP are individuals. Usually the human rights situation is given as an argument. The peremptory norms of the MP have enshrined all fundamental human rights. International human rights courts have been established. Every person with a violation of his rights can now file a complaint against his own state with an international court.

In fact, all international legal acts on human rights issues regulate this issue not directly, but through interstate cooperation. International acts enshrine the rights and obligations of states as subjects of international law, and only then states deny or are obliged to ensure the corresponding rights in their internal law.

Human rights is one example of how modern international law focuses on regulating not the actual behavior of MP subjects, but on domestic legal regimes. In this case - on the internal legal regime concerning human rights. The norms of the MP are increasingly affecting the internal legal regimes of states, whether in the economic, financial or constitutional, administrative, and criminal spheres.

That is why it can be argued that the subject of regulation through the MP are two large groups of interstate relations: a) relations between the subjects of the MP regarding their behavior in the international system; b) the relationship between the subjects of small businesses about their internal legal regimes. And the emphasis in international legal regulation is gradually shifting to the second group of interstate relations.

Therefore, we can talk about the strengthening of the mutual intertwining of the MP and internal law under the primacy of the MP. The unity of domestic law and CHM is called Global Law.

Only if we look at any legal problem in the light of Global Law (i.e., a complex of domestic and international law), we can assume that both public and private persons are subjects of Global Law.

Individuals can be recognized as a subject of MP, if only the states themselves recognize them as such. However, there are no international acts on the basis of which it would be possible to draw a conclusion about the international legal personality of individuals. Recognition of an individual as a subject of MP would mean that we are already dealing with some other (not international) law. This “other right” is the Global Law.

A manifestation of Global Law can be considered, for example, the presence in the MP of the criminal responsibility of an individual for crimes against the peace and security of mankind, the practice of the European Court of Human Rights, etc. In these cases, it is recognized that international legal norms can give rise to rights and obligations for individuals directly directly and not through states.