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Legal personality of international conferences. Legal personality of international organizations

Concept and characteristics of an international organization

Right international organizations

Topic 13.

The emergence of international organizations in the 19th century was a reflection and consequence of an objective trend towards the internationalization of many aspects of society. Since the creation of the Central Commission for Navigation on the Rhine in 1815, international organizations have been given their own competence and powers. A new stage in their development was the establishment of the first international universal organizations - the Universal Telegraph Union (1865) and the Universal Postal Union (1874), which had a permanent structure.

International organization– an organization established by an international treaty, designed to coordinate on an ongoing basis the actions of member states in accordance with the powers granted to it.

Similar definitions are found in international legal acts. Organizations go by a variety of names: organization, foundation, bank, union (Universal Postal Union), agency, center. It is known that the UN is called “United Nations” in other languages. All this does not affect the status of organizations.

Distinctive features international organizations are the following:

1. Creation by concluding a special agreement, which is a constituent act (charter, statute).

2. Availability of a system of permanent bodies.

3. Offline status and related functions.

4. Respect for the sovereignty of member states.

All this determines the international legal personality of the organization, the will of which does not necessarily coincide with the will of each of its members.

International organizations are bodies for cooperation between states; they are not supranational in nature.

The International Court of Justice has repeatedly emphasized that there is nothing in the nature of international organizations that would allow them to be considered as something like a superstate. The organization has only the competence that states have vested in it.

At the same time, today there are supranational, suprastate organizations (the European Union). States have delegated to such organizations the exercise of certain sovereign powers. On certain issues they can make decisions that directly bind physical and legal entities. Moreover, such decisions can be made by a majority vote. These organizations have a mechanism to enforce their decisions.

International organizations as general rule have legal personality both under international law and internal law member states. Their international legal personality is determined by their charter and international law. Having established that an international organization has legal personality, the International Court defined it as “the ability to possess international rights and bear international obligations.” At the same time, the Court pointed out the difference between the legal personality of an organization and the legal personality of a state:

“Subjects of law in any legal system are not necessarily identical in nature and in the scope of their rights; however, their nature depends on the needs of the community.”

The national legal personality of organizations is determined by their charter and the internal law of member states. They can usually enter into contracts, have movable and real estate and dispose of it, initiate legal proceedings.

Often, the constituent acts of organizations contain special provisions on this issue. In the multilateral agreement on the International Telecommunications Satellite Organization (INTELSAT) of 1971 we read that:

a) INTELSAT has legal personality. It enjoys full legal capacity necessary to exercise its functions and achieve its objectives, including the ability to:

i) enter into agreements with states or international

organizations;

ii) enter into contracts;

iii) acquire and dispose of property;

iv) be a party to legal proceedings.

b) Each Party shall take such measures within its jurisdiction as are necessary to give effect to these provisions in accordance with its own law.

Organizations participate within the limits of their competence in diplomatic relations. A number of organizations have permanent representations of states; in turn, the organizations send their missions to states.

Organizations are involved in activities to recognition of states and governments. Legally, this is the prerogative of states, but admission to the organization is a direct path to recognition, which is sometimes even more important than recognition by individual states.

Organizations are usually created with the help of international treaties, and, as an exception, with the help of resolutions of other organizations. The states that have concluded such a treaty are called initial participants. However, their legal status is no different from that of new members.

Along with states, international organizations are playing an increasingly important role in international relations. Now there are more than 500 international organizations, that is, their number has long exceeded the number of all other entities international law.

However, it is worth noting that not all international organizations have the status of a subject of international law. By general rule, only intergovernmental organizations, that is, those created by states, are recognized as subjects of international law. The issue of recognizing international non-governmental organizations as subjects of international law remains controversial in the future. That is why, when we talk about international organizations, we will only mean intergovernmental ones.

Since international organizations are secondary subjects of international law, their international legal personality is derived from the legal personality of states. For the first time, the question of the legal personality of international organizations arose in connection with the activities of the League of Nations, but was never resolved until its liquidation. After World War II, the UN was created, which again raised the issue of the legal personality of international organizations. Therefore, when a UN official was killed in Palestine in 1948, the organization appealed to the International Court of Justice. In its advisory opinion "On compensation for harm caused in the service of the United Nations", this authoritative judicial body confirmed that this organization has international legal personality. From this point on, most scholars believe that international organizations have international legal personality. This is confirmed in a number of international agreements. For example, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986 states that an international organization has such legal capacity to conclude international treaties as is necessary for the performance of its functions and the achievement of its goals. At the same time, the practice of concluding international treaties with states or among themselves must comply with their constituent acts.

International legal personality of an international organization is based on the provisions enshrined in the constituent documents - charters and other acts that determine its scope, based on the tasks and functions of this organization. However, it is generally accepted that currently all international intergovernmental organizations have international legal personality.

Since the scope of rights and obligations is determined by the founders at the time of creation of the organization and depends on the tasks and goals that it must fulfill, as well as the scope of action, the international legal personality of international organizations may differ significantly. The content of the international legal personality of international organizations can be drawn from an analysis of the relevant international rights and obligations, namely regarding them:

Rights to privileges and immunities;

The right to create norms of international law, including the right to conclude treaties with states, international organizations, and other subjects of international law;

Rights to exchange representations with states and international organizations;

Responsibilities to bear international legal responsibility for your actions.

It is believed that among the existing international organizations, the UN and some of its specialized agencies have the broadest legal personality.

Among other features that characterize international organizations as subjects of international law, it should be noted: they are created on the basis of an international legal act, as a rule, an international treaty (as an exception, we can cite the example of the OSCE, which operates without a charter); only states and other subjects of international law can be founders and participants of an international organization; the presence of permanent bodies.

International intergovernmental organizations are recognized as subjects of public international law both doctrinally and conventionally.

An international intergovernmental organization is understood as an association of states created on the basis of an international agreement to fulfill certain goals, having an appropriate organizational structure, and possessing independent international rights and obligations, different from the rights and obligations of member states.

Characteristic features international intergovernmental organizations in modern domestic science recognize:

contractual basis;

presence of certain goals;

organizational structure;

independent rights and obligations;

establishment in accordance with international law.

Some researchers consider another sign of an international intergovernmental organization to be the ability to express the will of an association that is different from the will of its members. This position is not shared by all domestic scientists.

Currently, the most significant international organizations are the UN, UNESCO, ILO (International Labor Organization), WHO ( World organization healthcare), OSCE (Organization for Security and Cooperation in Europe), etc.

Issues of the international legal personality of states have been studied quite well in domestic science. Most researchers recognize that states, when creating an international organization, endow it with legal personality. The legal personality of international organizations is derived from the legal personality of states and is of a targeted and functional nature, since it is limited by the goals and powers enshrined in the constituent documents of the organization.

The special legal capacity of international intergovernmental organizations differs significantly from the universal legal capacity of states. Its scope is limited by the scope of powers that states grant to the organization. A sovereign state can be the subject of all legal relations that comply with generally recognized principles and norms of international law, and an international organization created to carry out specific tasks, can enter only into those legal relations that are determined by its competence and correspond to the constituent act of the organization. Thus, legal personality is based on the statute of an international organization, which also determines its scope.

A set of basic (subject-specific) rights of international organizations that have some specificity compared to similar rights states includes:

1. The right to conclude international treaties. The scope of the contractual legal capacity of international organizations is significantly less than the contractual legal capacity of states. International organizations are allocated it only within the framework of their competence. Meanwhile, the state can conclude treaties on any international legal issues.

2. International organizations have the right to exercise certain powers, including making binding decisions, but are limited in the choice of means of enforcement and means of resolving disputes. For example, international organizations have the right to request advisory opinions International Court of Justice, but cannot be a party to a case being heard by the UN Court.

3. The right to enter into relations with other subjects of international law and have representation. For example, in Moscow there is a UN information center and representative offices of UNESCO and ILO. Representative offices of international organizations and representative offices at international organizations differ in their functions and legal status from diplomatic missions of states. In particular, the representation of states to international organizations to a certain extent is one-sided in nature, since the organizations do not send their representatives to the governments of the states that are their members. In addition, representation does not take place at all international organizations. While the exchange of diplomatic representatives between states is always a reciprocal act and, as a rule, common to all states of the world.

4. International organizations and their officials have the right to enjoy privileges and immunities on the basis of international law.

A debatable problem in domestic international legal science is the problem of the relationship between state sovereignty and the supranationality of some international organizations.

4.6. The problem of the international legal personality of an individual

The discussion about the international legal personality of an individual in legal literature has a long history.

Since the middle of the last century, Western doctrine has been characterized by a widespread tendency to abandon the “classical” concept of international law, which classifies only states as its subjects. This point of view was justified by reference to the possibility of an individual applying to international bodies for the protection of his rights, as well as the possibility of bringing an individual to international responsibility.

Domestic international legal doctrine for a long time proceeded from the denial of the legal personality of individuals. During the Soviet period, the concept of the special status of subjects of international law was dominant, its proponents recognizing the ability for independent international actions, including the creation of agreed upon international legal norms, and the independent exercise of rights and obligations established by these norms, as the main features of a subject of international law. Soviet international lawyers believed that states, not individuals, act in the international arena. All international treaties on the protection of fundamental human rights and freedoms are concluded by states, and therefore specific rights and obligations from these agreements arise for states, and not for individuals. Individuals are protected by their state and exercise their rights through states.

IN modern literature under international law, some researchers still adhere to this position.

The constant increase in international legal norms aimed at protecting fundamental human rights and freedoms has led to the fact that in the domestic doctrine, along with the traditional point of view that denies the individual the quality of a subject of international law, views have appeared that prove that the individual acts in international relations as an independent entity. Today, supporters of the anti-statist concept of the subject composition of international law, which is based on the idea of extending general theoretical approaches to understanding the subject of international law, clearly recognize the individual as a subject of international law.

They note the expansion of the range of international legal norms, not only establishing the rights of individuals and determining the legal status of individual categories persons (refugees, children, women, wounded), but providing them with legal opportunities to ensure and protect their rights.

Changes taking place in modern world, in our opinion, are reflected in the system of international law and its subject composition. An individual becomes a real participant in international legal relations, including those of a public nature, which turns him into a subject of international law with limited legal capacity. The development trends of modern international law indicate a gradual process of strengthening the international legal personality of the individual.

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INTRODUCTION

CONCLUSION

INTRODUCTION

Interstate associations today actively participate in international relations. Territorial problems of the interstate system have been known to humanity throughout its existence, since states have used various forms of associations to achieve certain goals. However, the overwhelming majority of state integration processes occurred in the second half of the 20th century. Appeared in 1949 international regional organization- The Council of Europe is opening a new milestone in the development of cooperation between European states, some of which, through the formation of the European Economic Community, have today reached a new type of integration association - the European Union.

These processes have not spared Russia either. After the collapse of the USSR Russian Federation becomes a member of the Commonwealth of Independent States, events recent years indicate the creation of a new association - Union State Belarus and Russia.

Many works of Soviet and modern Russian legal scholars are devoted to the problem of interstate associations, among which M.I. Baitina, A.B. Vengerova, L.V. Grechko, B.M. Lazareva, V.V. Lazareva, S.V. Lipenya, M.N. Marchenko, B.C. Nersesyants, V.M. Tikhomirova, B.N. Topornina, A.F. Cherdantseva, V.E. Chirkina, G.G. Shinkaretskaya and others. However, confederations and various state-legal associations, unions of sovereign states have not been sufficiently studied as an independent institution of the modern theory of state and law and international law: there is no unambiguous definition of the concept of an association of states, the form of interstate structure, and there is no single position regarding the international legal personality of associations of states.

1. The concept of international legal personality

Legal personality is a property of a person (an international personality), in the presence of which it acquires the quality of a subject of law. “Subject of law” and “Legal personality” are the same categories in their main content. Mamedov U.Yu. International legal personality: main development trends./ Abstract. diss. for academic competition step. Ph.D. - Kazan: Kazan State. Univ.-t., 2001.

The domestic doctrine noted that the most important property of a subject of international law is the legal ability of a participant in international communication to take independent international actions and express legal will. But the ability for this kind of action is unthinkable without an international personality having an independent (autonomous) will.

Therefore, it is the will that underlies international legal personality. The presence of independent will, allowing a participant in international communication to perform certain international actions, is the litmus test that determines the possibility of the existence of a subject of law. Without such a quality as will (here, naturally, it is understood as a social category, not a psychological one), there is no subject of international law at all. In our literature, foundations of international legal personality other than will have been put forward. For many years, for example, the concept was widespread that sovereignty was considered the main criterion of international legal personality. And although this point of view turned out to be rejected by the majority of authors, its relapses, no, no, are making themselves felt.

Of course, for the state (that is, for one, albeit basic, type of subject), sovereignty ultimately serves as a source of legal personality.

But here we must keep in mind two circumstances. Firstly, the direct factor that allows us to talk about the international legal personality of a state is not sovereignty as a property state power, and its specific expression is the sovereign will inherent in the state, which gives the state the opportunity to independently carry out international actions. Secondly, other subjects of international law do not have state sovereignty (this especially applies to international organizations), and then it is not clear why they could be so. Therefore, as L.N. rightly pointed out. Maratadze, “it is incorrect to identify the legal characteristics of subjects of international law with the specific features of a particular subject that determine its individuality in international legal relations.” Feldman D.I. Kurdyukov G.I. Main trends in the development of international legal personality. - Kazan: Kazan University Publishing House, 1974.

Recognizing important constructs of the general theory of law in determining international legal personality, one should warn against their mechanical transfer to the field of international law without taking into account the peculiarities of the latter. Moreover, it is hardly possible to name another legal category of an international nature, where the influence of these features would be felt more strongly than when determining international legal personality. There cannot be complete identity of the characteristics that make up the concept of “subject of national law” (in the literature on legal theory they simply write: “subject of law” and “subject of international law”). International law. Textbook for universities./rep. ed. G.V. Ignatenko, O.I. Tiunov. - M., 2004. What is the difference between these concepts? The main thing is the nature and scope of the legal ability of a participant in international communication to act independently and express legal will. If the ability to participate in legal relations, to have rights and obligations established by legal norms, the ability to independently exercise these rights and obligations exhausts the content of legal personality in national law, then in relation to a subject of international law it reveals only one (albeit significant) feature of it ( from a number of others).

In national law, the state, through the law, determines the circle of subjects of law, endows them with a set of rights and obligations and ensures compliance with the established legal order. In international law the situation is different. There are no bodies standing above the subjects and establishing mandatory rules of behavior for them, just as there is no special apparatus of coercion. The subjects themselves (and only they) can create (shape) norms of international law. The subjects themselves (and only they) ensure compliance with the norms of international law. Taking into account the foregoing, we can assume that in addition to such a feature as the ability to be a bearer of international legal rights and obligations and independently implement them (which corresponds to the provision on legal personality developed by general theory law), international legal personality is characterized by two more independent features:

1) ability to participate in the process of international law-making:

2) the ability to independently (individually or collectively) ensure compliance with the created norms. International law. Textbook for universities./rep. ed. G.V. Ignatenko, O.I. Tiunov. - M., 2004.

Consequently, only that person who possesses all three named characteristics can be called a subject of international law.

Based on the above, the following general conclusions can be drawn about international legal personality:

Firstly, international legal personality is a legal property acquired by international individuals by virtue of legal norms. Indeed, all subjects of international law have a legal basis for their emergence. The formation of a new state is officially recorded and legally formalized constituent documents(constitutional acts, declarations, appeals, international treaties and others). A nation fighting for its national liberation is personified in a national political organization, preceding sovereign state, the creation of which it proclaims by issuing a corresponding legal act.

Secondly, international legal personality is not only a legal, but also a socio-political property. Subjects of international law are political entities; their emergence and existence is determined by social processes.

Thus, the formation of nations as a subject of law, the emergence of new states on the territory of former colonies is associated with the national liberation struggle of peoples for their liberation, the exercise of their right to self-determination.

Thirdly, the basis of international legal personality is the freedom of social will of a particular political entity in the international arena. The presence of one’s own will, independent of any other subjects, allowing one to independently carry out activities in the international arena that correspond to the goals and interests of a given entity, serves as the main criterion for the presence of legal personality in this international personality.

Fourthly, the content of international legal personality lies in the legal ability of a participant in international communication to undertake independent international actions, expressed in the independent exercise of rights and obligations, participation in the creation of norms of international law and in ensuring their implementation.

2. Features of the legal personality of international organizations

Do international organizations have the above characteristics of legal personality? There apparently cannot be a general affirmative answer regarding all three types of international organizations - interstate (intergovernmental), interdepartmental and non-governmental (public).

At least with regard to non-governmental (public) international organizations, we can say with a sufficient degree of certainty: they do not have a number of attributes necessary for their recognition as subjects of international law. We are talking about such features as the ability to create norms of international law and ensure their implementation. At the same time, non-governmental organizations, while not being subjects of international law, may have some features of international legal subjectivity, including having certain rights and obligations established by international legal norms.

One example here is the consultative status of non-governmental organizations in the UN, which provides these organizations (depending on the type of status) with rights such as including issues on the agenda of the session of ECOSOC and its subsidiary bodies, participating in their work, and so on. The possibility of participation of a non-governmental organization in the international conciliation procedure is not excluded.

A non-governmental organization may be a subject of private international law. But here it is necessary to make a reservation. In the literature, the presence of an international organization of private law powers (to enter into transactions, acquire and dispose of real estate, initiate civil suits in national courts, and so on) is often considered as evidence of their international legal personality (references are especially often made to Article 104 of the UN Charter) .Artamonova O.F. International legal personality European Union.// Journal of Russian law. - 2002. - No. 8.

These kinds of references are unjustified. The presence of these powers in an international organization has nothing to do with its international legal personality (that is, with its recognition as a subject of public international law). This fact only indicates that this entity is a subject of private international law. Another thing is that subjects of public law, as a rule, are also subjects of private international law. The determination of the international legal personality of an interstate (intergovernmental) organization, on the one hand, and an interdepartmental one, on the other, can be approached with the same standards. National departments, being bodies of the state, when establishing an interdepartmental organization, act on the basis of the powers granted to them by the state, which are enshrined in those internal regulations (constitution, regulations on this body, and so on) that determine its legal status. At the same time, the international actions of the department must be carried out within the framework of the competence granted to it.

By accepting international legal obligations within the specified limits under the constituent act, the agency acts on behalf of the state. And, naturally, responsibility for fulfilling these obligations ultimately also falls on the state.

Therefore, in the future, when considering the legal personality of international organizations, I would like to note that we're talking about not only about interstate (intergovernmental), but also about interdepartmental organizations. It is also natural that the study of the problem should be limited to: a) the above two types of international organizations; b) legally existing formations of states, that is, those organizations whose constituent acts satisfy the conditions of validity of international treaties (freedom of expression of participants, compliance with the basic principles of international law, compliance with formal legal requirements for the execution of such acts and others). Mamedov U.Yu. International legal personality: main development trends./ Abstract. diss. for academic competition step. Ph.D. - Kazan: Kazan State. Univ.-t., 2001.

The study of the emergence, formation and development of such organizations, as well as the analysis of their constituent acts and other documents in relation to their functioning, allows us to conclude that they have all the characteristics of a subject of international law.

This can be shown by the example of organizations of the universal type, and primarily by the example of the United Nations as the most important universal organization of the modern world.

The fact that all organizations are legal and socio-political entities does not require special proof. They were created and function on the basis of a constituent act, the qualification of which as an international treaty, that is, as a legal phenomenon, is beyond doubt. At the same time, the emergence of these organizations is the result of certain socio-political processes. Theory of state and law. Course of lectures./Under. ed. N.I. Matuzova, A.V. Malko. - M.: Yurist, 2007.

Thus, the rapid growth of interstate (intergovernmental) organizations in the post-war period was largely due to the need for development international cooperation, solutions global problems(which was facilitated by democratization international relations, caused by the victory over the most reactionary forces in the Second World War, a change in the balance of forces on the world stage, the collapse of colonialism, and so on), the scientific and technological revolution and other factors of a socio-political nature. The question of what rights and responsibilities to give to an organization, what scope to provide it with for independent implementation of international actions, in other words, what features of legal personality to give it, is decided by states depending on the political tasks that are set for this organization.

3. Realization of international legal personality

The rights and obligations of the organization are usually indicated in the constituent acts and in documents supplementing them. The rights and obligations of different organizations vary, depending on the goals they pursue and the functions they perform. It is enough to compare the scope of rights and responsibilities of organizations of general competence, such as, for example, the UN, and organizations entrusted with relatively narrow tasks (say, the Union for the Fight against Epizootics). At the same time, it is possible to identify common features, inherent in all organizations of a universal type. Let us note first of all that without rights and responsibilities, no organization could perform the functions assigned to it. At the same time, it enters into certain legal relations with states and international organizations (actions of the UN Security Council on the peaceful resolution of disputes and the prevention of acts of aggression; providing technical assistance to states, issuing administrative and regulatory acts, etc.). Many constituent acts of specialized organizations provide for maintaining relations with UN bodies and other international organizations. As for legal relations with sovereign entities, they are not limited to contacts with member states. European law. Textbook for universities./Under general. ed. L.M. Entina. M.: Publishing house NORM. 2000.

Cooperation is also carried out with non-member states, for which appropriate agreements are concluded (for example, the UN Interim Agreement with the Swiss Federal Council of December 14, 1946).

The Vienna Convention of March 14, 1975 grants states the right to have their own representations in international organizations of a universal nature; therefore, the organization has the right to enter into relations with sovereign entities through these representations.

International organizations have a certain set of privileges and immunities necessary to carry out the tasks assigned to them. They are enshrined in the constituent acts and special agreements on immunities. An example is Art. 105 UN Charter, art. XII of the UNESCO Charter, Convention on the Privileges and Immunities of the United Nations of February 13, 1946, General Convention on the Privileges and Immunities of the Specialized Agencies of January 21, 1947, Agreement on the Legal Capacity, Privileges and Immunities of the International Organization of Space Communications Intersputnik of September 20, 1976. , agreements of international organizations with those states where their central institutions are located (UN, for example, such agreements have been concluded with the USA, Switzerland, the Netherlands). Feldman D.I. Kurdyukov G.I. Main trends in the development of international legal personality. - Kazan: Kazan University Publishing House, 1974.

There are several categories of privileges and immunities, the main of which are the immunities of: a) the organization itself; b) its officials. Some agreements (for example, Article V of the Agreement on the Privileges and Immunities of the IAEA dated July 1, 1959) specifically regulate the immunities of state representatives. The personality of the holder of immunities leaves an imprint on the content of the latter. The presence of immunities in an international organization (and, accordingly, its officials) is one of the most important features of legal personality. At the same time, the volume of rights granted to the organization is such that it undoubtedly indicates its independent existence, including from sovereign entities. Immunities provide the organization with normal activities and the implementation of its functions. Shumsky V.N. Organizational and legal foundations of the Commonwealth of Independent States: experience of comparative analysis. // State and law. - 1998. - No. 11

The organization participates in resolving disputes that arise with it with other subjects of international law (including with states) using such means that are usually used in relations between subjects (negotiations, mediation and other services, international judicial procedure, etc.) .

Confirmation of this can be found both in the constituent acts of organizations and in numerous agreements concluded by an international organization (for example, agreements on technical assistance between specialized UN agencies and states). Moreover, international organizations themselves often act as bodies through which disputes are resolved (even in cases where the organization is not a party to the dispute). For this purpose, they use the procedures provided for in the constituent acts (an example is Chapter VI of the UN Charter). An organization can be involved (on its own initiative or in accordance with the invitation of the disputants) to participate in the conciliation procedure, which has happened more than once in practice (the good offices of the UN Secretary General in the Iran-Iraq conflict in 1987-1988, the mediation of his representative in the negotiations between Afghanistan and Pakistan in 1987-1988, etc.). Malinin S.A., Kovaleva T.M. Legal personality of international organizations. // Jurisprudence. - 1992. - No. 5.

Within the framework of international organizations, judicial bodies can function (the International Court of Justice, special courts for resolving a specific dispute, etc.). Some organizations may request advisory opinions from the International Court of Justice. Artamonova O.F. International legal personality of the European Union.// Journal of Russian Law. - 2002. - No. 8.

By virtue of the Charter, such a right is directly granted only to the General Assembly and the Security Council (Clause 1, Article 96), i.e., the two main organs of the UN. Other UN bodies exercise this right with the permission of the General Assembly. As for international organizations other than the UN, according to the letter of the UN Charter, only specialized UN agencies can obtain permission from the General Assembly to go to court for an advisory opinion (the request can only concern disputes arising within the scope of their activities). It should, however, be borne in mind that there are several other organizations operating in the UN system (IAEA, UNCTAD) that are neither UN bodies nor specialized UN agencies. But they have ties with the UN, and closer ones than the UN specialized agencies. In terms of their legal status, they occupy a place between the UN's own bodies and specialized agencies. Therefore, there are no theoretical obstacles to classifying the IAEA and UNCTAD among those organizations to which the General Assembly can give permission to appeal to the International Court of Justice.

The lack of mention of this in the UN Charter is explained by the fact that these organizations were created much later than the entry into force of the UN Charter.

The types, direction and scope of rule-making powers of any international organization are fixed in the agreement (charter) on its creation, or in other documents supplementing it. The most typical forms of securing such powers are:

a) direct mention of specific types and forms of rule-making activity in the constituent act (Charters of the UN, FAO, etc.);

b) such a statement of the functions and powers of the organization, the interpretation of which makes it possible to speak with certainty that the organization has rule-making competence (this interpretation is often given in resolutions of the main bodies of the organization);

c) an indication of the types and forms of law-making in agreements concluded between member states, between member states and a given international organization, etc., which can be considered as an addition (specification) of the constituent act;

d) a general statement in multilateral treaties of a universal type of one or another rule-making ability of certain categories of international organizations (a striking example is the Vienna Convention of 1986 “On the Law of Treaties between States and International Organizations or between International Organizations”).

Each international organization can participate only in the type of rule-making that is permitted by its charter.

The forms of expression of norms (sources of law), in the creation of which an organization takes part, can be either typical, usually used by states, or be of a specific nature. The first category primarily includes a contract, which is directly stated in a number of international legal acts (for example, Article 3 of the Vienna Convention on the Law of Treaties of 1969, Article 2 of the Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986), as well as the custom and final acts of international conferences. Artamonova O.F. International legal personality of the European Union.// Journal of Russian Law. - 2002. - No. 8.

The second category includes normative decrees of international organizations. In addition to direct participation in the process of creating rules, including its final stage (the rule-making activity itself), an international organization can provide assistance in the implementation of rule-making activities to states or other subjects of international law.

In this case, the organization participates in the rule-making process at its various stages (for example, the development of draft multilateral treaties), sometimes acting very actively, but is removed from participation in the final stages of rule-making, when the will of the subjects is agreed upon regarding the recognition of a rule as legal norms.European law. Textbook for universities./Under general. ed. L.M. Entina. M.: Publishing house NORM. 2000. The forms of participation of an organization in international rule-making are varied (conclusion of international agreements within and under the auspices of the organization, influencing the rule-making process through the adoption of appropriate decisions, amending the constituent act, promoting the emergence and establishment of international customary norms, their confirmation and specification, administrative adoption -recommendatory acts, approval of certain types of agreements of specialized institutions, giving them legal force, etc.).

This category of acts, which are advisory in nature, together with decisions on internal organizational issues ( specified solutions, although they are mandatory for members of the organization, nevertheless, they do not create norms of international law, since they do not have all the attributes of the latter) have the largest share among the legal acts of any organization.

The participation of an international organization in the creation of norms of international law most fully reveals not its implementation of auxiliary functions in the formation of norms, but the actual rule-making activity. Can all universal international organizations directly participate in norm-setting? It is apparently impossible to give an unambiguous answer in relation to any forms of the actual rule-making activity of an organization. But, in principle, every organization can have contractual legal capacity, which follows from the entire content of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986.

In the constituent acts of a number of organizations, contractual legal capacity is regulated in detail. In the UN Charter, for example, it is mentioned in Art. 17, paragraph 3, 26; 28, paragraph 3; 32; 35, paragraph 2; 43; 53, paragraph 1; 57, paragraph 1; 63, paragraph 1; 64, paragraph 1; 77; 79; 83; 85, paragraph 2; 105, paragraph 3. Despite some specificity in the legal nature of treaties concluded by international organizations, these treaties and interstate agreements are international in nature. They are identical in legal force. The right to participate in agreements also applies to general multilateral treaties.

Based on an analysis of the practice of a number of organizations, the following list of options for such participation can be proposed: 1) when the possibility of participation in a certain agreement follows from the constituent act or other “rules of the organization”; 2) if the substantive content of the treaty or its object is directly related to the interstate organization and the member states believe that its participation in the treaty will contribute to the effective implementation of its goals and objectives; 3) if the provisions of the contract stipulate such a possibility; 4) if the need for the participation of an international organization in a general multilateral treaty is dictated by certain factual circumstances (for example, participation in radiation safety conventions when the organization uses nuclear facilities in its activities). Malinin S.A., Kovaleva T.M. Legal personality of international organizations. // Jurisprudence. - 1992. - No. 5. The body authorized to enter into agreements on behalf of the organization is determined on the basis of the constituent act.

In the absence of such instructions in it, preference should be given to the plenary body, since this is, as a rule, the highest body of the organization (the UN structure has its own characteristics) and all the highest prerogatives, including law-making, belong to it. However, as practice shows, the plenary body itself rarely enters into agreements, entrusting the performance of this function to other bodies of the organization. The procedure for concluding agreements with the participation of international organizations is basically similar to the procedure for concluding interstate agreements, but has its own characteristics. Let's note two of them.

The first concerns the issue of approval of the agreed text of the contract by the competent authority of the organization. The following approval formulas can be distinguished; a) approval only of the fact of concluding an agreement; b) review of the drafted text of the agreement and approval of its fundamental provisions; c) study and approval of all provisions of the compiled text. The second feature is that, in contrast to this method of expressing the consent of states to the legal binding of an agreement, such as ratification, international organizations use an “act of official confirmation” (Article 14, paragraph 2 of the 1986 Convention), which is usually expressed in the form of a decision of the competent authority organizations. The issue of normative (norm-containing) resolutions of international organizations is controversial in the literature. Malinin S.A., Kovaleva T.M. Legal personality of international organizations. // Jurisprudence. - 1992. - No. 5.

Some authors deny the very possibility of vesting an international organization with these powers. Others, on the contrary, recognize this possibility, making a number of reservations. In particular, the rare cases of granting international organizations such a right are emphasized. We are actually talking about the United Nations, or more precisely, about its two main bodies - the General Assembly and the Security Council. The latter is due to the fact that the General Assembly and the Security Council occupy a special position in the system of other UN bodies and can be considered as supreme. All other main bodies, with the exception of the International Court of Justice, which has specific functions and therefore the question of creating rules of law by it is not raised, work under the leadership of the General Assembly.

The latter circumstance will provide a sufficient explanation for why the possibility of their adoption of normative decisions is not provided for by the UN Charter. The starting points for deciding whether a particular resolution of the General Assembly and the Security Council is a normative one are two prerequisites: a) they must create rules of law (i.e., regulate relations between subjects of law; carry general character; be binding); b) such resolutions must be adopted within the framework of the founding act of the Organization (they must satisfy all the criteria of legality, of which, in relation to normative resolutions, the following are of particular importance: the presence of the relevant authority in this body and the division of competence between the two named bodies). Davletgildeev R.Sh. On the legal nature of the CIS and the Union of Belarus and Russia. // Journal Russian law. - 2000. - №7.

If we turn to the UN Charter, these prerequisites can be found in it. Including in relation to the Security Council. So, based on clause 2 of Art. 35 of the Statute of the International Court of Justice, the Security Council determines the conditions (rules) under which the Court is open to states that are not parties to the Statute of the International Court of Justice. This is the essence of a general order that must be fulfilled every time the conditions provided for by it are present.

General principles for the formation of the UN armed forces, some of which (25 articles) were agreed upon by the Military Staff Committee in 1946-1947. (the work was not completed), if adopted by the Security Council, they will also have all the signs of a rule of law. Based on the above, it is impossible to qualify all acts of the Security Council without exception as having an executive nature (such guardianship is dominant in the doctrine). It should be recognized that the General Assembly can participate in lawmaking (within a limited framework, of course) as general meeting all members of the UN. At the very least, the binding force of certain categories of resolutions of the General Assembly can hardly be questioned. In the same way, one cannot deny the fact that among them there are resolutions containing rules of law. Convincing examples of this kind of resolutions are the Declaration on the Granting of Independence to Colonial Countries and Peoples of December 14, 1960, the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the UN Charter of October 24, 1970, the resolution of December 14, 1974 ., containing the definition of aggression.

It is impossible to agree with the point of view that the decisions of international organizations are an expression of the concerted will of the member states. Resolutions of international organizations are the result of a unilateral expression of the will of an international organization as an independent subject of international law, a concrete expression of the implementation of its will. At the same time, such a unilateral expression of will is due to the fact of coordination of the wills of the member states of the given organization, expressed in the constituent act. An organization can carry out such actions as the adoption of normative resolutions only if this is provided for in the agreement on its creation. Moreover, the treaty establishes not only the limits, but also the nature of this type of rule-making. Thus, in this case, the occurrence new normal ultimately based on agreement between sovereign subjects of international law.

4. Ensuring compliance with international law

This ability of international organizations has various manifestations. Among the means that are used are the institutions of international legal responsibility and international control, and the use of sanctions. International organizations, acting in the international arena as independent entities, must also bear international legal responsibility for offenses. The Treaty on the Principles of the Activities of States in the Exploration of Outer Space, Including the Moon and Other Celestial Bodies, of January 27, 1967, establishes the joint responsibility of organizations and member states for the activities of an international organization in outer space. However, this cannot be considered as the only possible solution. An international organization may also be solely responsible. Moreover, the last option is preferable. Joint and several liability should be resorted to only in cases where the amount of harm exceeds the capacity of an international organization. European law. Textbook for universities./Under general. ed. L.M. Entina. M.: Publishing house NORM. 2000. (This is exactly the case with potential damage in outer space).

On the other hand, an international organization enjoys the right to present its claims to individual states (for example, for compensation for damage caused), which in relation to the UN was confirmed by the advisory opinion of the International Court of Justice back in 1949.

Important, from the point of view of ensuring the rule of law, are certain control functions carried out by international organizations. Often they are fixed directly in the constituent acts. Thus, the UN Charter authorizes ECOSOC to take appropriate measures to obtain reports from member states and UN specialized agencies on the measures they have taken in pursuance of its own recommendations and the recommendations of the General Assembly on issues within its competence (Article 64, paragraph 1) . The Trusteeship Council is responsible for reviewing reports submitted by the administering authority and petitions from the population of trust territories, and carrying out inspections (Article 87). The IAEA Charter establishes a special institution - a system of guarantees (Article XII), which is a type of international control.

Certain nuclear facilities are placed under such control (IAEA guarantees, for example, apply to all projects carried out with the help of this organization; they can be accepted by states voluntarily). The main forms of control are: IAEA analysis of information and reports received from states, observation and inspections by the IAEA on the ground. Sometimes indications of the control functions of international organizations can be found in the text of international agreements. For example, the Treaty on the Non-Proliferation of Nuclear Weapons on July 1, 1968. (Art. III--I) extends IAEA guarantees to nuclear facilities of non-nuclear powers. UN agreements with specialized agencies provide for the obligation of the latter to submit reports to the UN on measures taken to implement UN recommendations (for example, Article IV of the Agreement between the UN and UNESCO of December 6, 1946). The UN, analyzing these reports, can, naturally, make appropriate representations to the specialized agency.

Finally, international organizations often create special bodies designed to monitor how agreements concluded within the international organization are implemented (see Article IX of the Convention on the Suppression and Punishment of the Crime of Apartheid of December 30, 1973, on the creation of a Committee on human rights task force to consider reports submitted by Member States) or decisions adopted by organizations (an example is the Ad Hoc Committee on Decolonization, established by the UN General Assembly in 1961 to review the implementation of the provisions of the Declaration of 14 December 1960).

International legal sanctions that international organizations can apply can be divided into two groups: a) sanctions, the use of which is permissible by all interstate organizations; b) sanctions, the authority to apply which are strictly defined by organizations.

The sanctions of the first group include the following: suspension of rights and privileges arising from membership in international organizations (deprivation of the right to vote in the bodies of organizations; the right to representation in the bodies of organizations; the right to receive assistance and services); expulsion from the organization; denial of membership; exclusion from international communication on certain issues of cooperation. International law. Textbook for universities./rep. ed. G.V. Ignatenko, O.I. Tiunov. - M., 2004.

Granting the right to implement sanctions of the second group depends entirely on the goals performed by the organization and on the functions assigned to it. Thus, the tasks of maintaining international peace and security required authorizing the UN, through the Security Council, to use coercive measures, including the use of armed forces, in cases specified in the UN Charter (Articles 41, 42 of the UN Charter). When implementing safeguards, the IAEA is allowed (if the rules for the operation of nuclear facilities are grossly violated) to apply so-called “corrective measures,” including the possibility of submitting orders to states to suspend the operation of relevant enterprises.

CONCLUSION

The legal personality of international organizations differs from the legal personality of states. This difference concerns: a) the source (origin) of legal personality; b) the nature and content (scope) of legal personality; c) methods of terminating legal personality. Difference in source (origin) of legal personality. States are subjects of international law ipso facto(lat.). They (this often happens as a result of the development of internal processes) acquire this property from the moment of their emergence and regardless of the will of other entities already existing in the international arena. The legal personality of states follows from the very essence of the state as a sovereign entity. States, when considered in relation to the legal personality of an international organization, are “primary” subjects (they are often called “typical”, “usual”, “basic”, “original”). The legal personality of international organizations is always of contractual origin.

Its source is the constituent acts of the organization, that is, international treaties concluded by states. Consequently, the legal personality of an international organization is derived from the legal personality of “primary” (sovereign) subjects. And in this sense, it can be argued that international organizations are derivative subjects of international law.

The legal personality of states is universal. It is not limited to any one or several areas of international legal relations and is universal in nature. This also applies to the scope of legal personality. States are capable of performing any lawful international action. They are full-fledged subjects of international law.

The legal personality of international organizations is functional in nature. The assignment of rights and responsibilities to a particular international organization depends on its goals and their scope cannot exceed the functional needs of the organization. The ability to carry out international actions is limited to the specified framework and is fixed in the constituent act and documents supplementing it. The scope of this ability may vary among different international organizations.

The legal personality of the state not only arises, but also ceases along with the state itself. Just as international legal recognition does not create a state as a subject of international law, so the statement of the fact of the cessation of the existence of states by other states cannot have constitutive significance.

The existence of the legal personality of international organizations depends entirely on the will of the member states. States create an international organization, giving it the quality of a subject of law; states (and only they) are capable of eliminating it.

Thus, an international organization, even if it is a subject of international law, cannot claim an equal position with states within the international legal system. That is why international organizations can be conditionally called “limited” subjects of international law.

LIST OF SOURCES USED

Artamonova O.F. International legal personality of the European Union.// Journal of Russian Law. - 2002. - No. 8.

Davletgildeev R.Sh. On the legal nature of the CIS and the Union of Belarus and Russia. // Journal of Russian Law. - 2000. - No. 7.

European law. Textbook for universities./Under general. ed. L.M. Entina. M.: Publishing house NORM. 2000.

Malinin S.A., Kovaleva T.M. Legal personality of international organizations. // Jurisprudence. - 1992. - No. 5.

Mamedov U.Yu. International legal personality: main development trends./ Abstract. diss. for academic competition step. Ph.D. - Kazan: Kazan State. Univ., 2001.

International law. Textbook for universities./rep. ed. G.V. Ignatenko, O.I. Tiunov. - M., 2004.

Theory of Government and Rights. Course of lectures./Under. ed. N.I. Matuzova, A.V. Malko. - M.: Yurist, 2007.

Tunkin G.I. Theory of international law./ Under. total ed. Shestakova N.L. - M.: Mirror, 2004.

Feldman D.I. Kurdyukov G.I. Main trends in the development of international legal personality. - Kazan: Kazan University Publishing House, 1974.

Shibaeva E. A. Legal status of intergovernmental organizations. - M.: Legal. lit., 1972.

Shibaeva E.A. On the question of the supranational character of universal international organizations. // Soviet Journal of International Law. - 1992. - No. 4.

Shumsky V.N. Organizational and legal foundations of the Commonwealth of Independent States: experience of comparative analysis. // State and law. - 1998. - No. 11.

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