The legal personality of fighting nations, like the legal personality of states, is objective in nature, i.e. exists independently of anyone's will. Modern 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 international law, its formation falls on late XIX- beginning of the 20th century 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 finally completed its legal formalization as a fundamental 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. Its contents were most fully formulated in the Declaration of Principles of International Law of 1970, which states: “All peoples have the right freely to determine, without outside interference, their political status and to pursue their economic, social and cultural development, and every State has the obligation 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 fighting nations. Nations struggling to establish 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 becoming 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 can be recognized as a subject of international law political organization, independently performing quasi-state functions.
In other words, a nation must have a pre-state form of organization: popular front, the beginnings of authorities and management, the population in the controlled territory, etc.
It must be taken into account that international legal personality in proper meaning This word can (and does) not be possessed by all, but only by a limited number of nations - nations that are not formalized into states, but are striving for their creation in accordance with international law.
Thus, almost any nation can potentially become a subject of legal relations of self-determination. However, the right of peoples to self-determination was recorded 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 particular importance. Today we're talking about about the development of a nation that has already freely determined its political status. In current conditions, the principle of the right of nations to self-determination must be harmonized and 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, we need to talk no longer 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 also protection.
There are rights that a nation already possesses (they stem from national sovereignty) and rights that it struggles to possess (they stem from state sovereignty).
The legal personality of a struggling 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 international law and independently fulfill accepted international obligations.
The legal personality of nations fighting, like the legal personality of states, is objective in nature, i.e. exists independently of anyone's will.
The categories “people” and “nation” are considered as identical concepts. However, there are fundamental differences between them. A nation is a historically established community of people, characterized by such features as: unity of territory; community of social and economic life; community of culture and life. The people are various forms communities of people that include both national and ethnic unity. As the primary subjects of international law, all nations and peoples have the inalienable right to complete, absolute freedom, the exercise of their state sovereignty, the integrity and inviolability of their national territory.
When they talk about the international legal personality of nations and peoples, they mean primarily those of them that are in colonial dependence and deprived of their own national statehood. The subjects of international law are only those nations and peoples who are fighting for their national liberation and the creation of their own independent states. The classification of nations and peoples as subjects of international law, as a rule, arises after they create some kind of body coordinating the struggle (for example, the Palestine Liberation Organization), which acts on their behalf until the creation of an independent state.
Currently, approximately 15 territories are dependent: American Samoa, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands (Malvinas), Gibraltar, Guam, New Caledonia, Saint Helena, Trust Territories Pacific Islands, Western Sahara, etc.
The principle of equality and self-determination of peoples is enshrined in the UN Charter (clause 2 of article 1). The Organization itself, based on this principle, pursues the goal of developing friendly relations between nations. In order to implement this principle, the UN created, under its leadership, international system guardianship for the administration of those territories that are included in individual agreements, and for the supervision of these territories. According to Art. 76 of the UN Charter, one of the main objectives of the trusteeship system is to promote the political, economic and social progress of the population of the Trust Territories, their educational progress and their progressive development towards self-government or independence.
Subsequently, the principle of equality and self-determination of peoples was developed and concretized in the Declaration on the Granting of Independence to Colonial Countries and Peoples, unanimously adopted by the UN General Assembly at the XV session on December 14, 1960. The preamble of the Declaration rightly notes that all peoples have the inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory. Peoples can freely dispose of their natural wealth and resources in their own interests, without violating any obligations arising from international economic cooperation and norms of international law. The Declaration proclaims the following principles And prerequisites granting independence to colonial countries and peoples:
1) subjugation of peoples foreign yoke and domination and their exploitation are a denial of fundamental human rights, are contrary to the UN Charter and impede the development of cooperation and the establishment of peace throughout the world;
2) all peoples have the right to self-determination; by virtue of this right they freely establish their political status and pursue their economic, social and cultural development;
3) insufficient political, economic and social preparedness in the field of education should never be used as an excuse to delay the achievement of independence;
4) any military action or repressive measures of any nature directed against dependent peoples must cease in order to enable them to exercise in peace and freedom their right to complete independence; the integrity of their national territories must be respected;
The normative nature of this unanimously adopted document is clearly expressed in paragraph 7, which contains a direct reference to the obligation of states to “strictly and conscientiously observe the provisions ... of this Declaration”
This principle is also specified in the Declaration of Principles of International Law of 1970, in the Universal Declaration of Human Rights of 1948, the International Covenants on Human Rights of 1966, the Final Act of the Helsinki Conference of 1975 and in many other sources of international law.
The Final Act of the 1975 Conference on Security and Cooperation in Europe calls on states to respect the equality of rights and the right of peoples to control their own destinies, acting at all times in accordance with the purposes and principles of the UN Charter and relevant rules of international law. Based on the principle of equality and the right of peoples to decide their own destinies, all peoples always have the right, in complete freedom, to determine, when and how they wish, their internal and external political status without outside interference and to exercise their political, economic, social and cultural affairs at their own discretion. development. It should be noted that the Final Act especially emphasizes the importance of excluding any form of violation of the principle of equality and self-determination of peoples.
According to Art. 1 of the International Covenant on Economic, Social and Cultural Rights of 1966, all peoples have the right to self-determination. By virtue of this right they freely establish their political status and freely pursue their economic, social and cultural development. All peoples can freely dispose of their natural wealth and resources. All States Parties to the Covenant, including those responsible for the administration of Non-Self-Governing Territories and Trust Territories, must, in accordance with the UN Charter, promote and respect the exercise of the right to self-government.
The legal basis of the right of nations to self-determination is their inherent national sovereignty, which means the realization by each nation of its right to independent and independent existence in both political sense, and from the point of view of free and comprehensive development all other spheres of public life. National sovereignty is inviolable and inalienable. Because of this, the international legal personality of nations and peoples does not depend on the will of other participants in international relations.
As a subject of international law, nations and peoples fighting for their self-determination, through their permanent bodies, can enter into agreements with states and international organizations and sign international treaties (for example, the Palestine Liberation Organization signed the UN Convention on maritime law 1982), send their representatives to participate in the work of intergovernmental organizations and conferences. They enjoy the protection of international law and have their own diplomatic missions on the territory of states.
International legal personality- this is a set of rights and obligations of subjects of international law provided for by the norms of international law. Modern international law contains norms that establish the right of peoples and nations to self-determination. One of the goals of the UN is to develop friendly relations between nations “based on respect for the principle of equality and self-determination of peoples.”
According to the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, “all peoples have the right to self-determination and by virtue of this right they freely determine their political status and pursue their economic, social and cultural development.”
The right of peoples (nations) to self-determination in relation to each people is revealed through its national sovereignty, which means that each people has a sovereign right to independence in achieving statehood and independent state existence, to freely choosing paths of development.
If peoples (nations) have the right to self-determination, then all states have an obligation to respect this right. This obligation also covers the recognition of those international legal relations in which the subject is the people (nation).
The inalienable right of a people (nation) to self-determination, associated with its national sovereignty, is the basis of its international legal personality.
Historically, this legal personality of the people (nation) manifested itself during the period of the collapse of colonialism after the end of the Second World War. In the modern period, when the vast majority of former colonial peoples have achieved independence, the importance of the principle of self-determination is emphasized by the right of every people who have built their own statehood to determine their internal and external political status without outside interference and to carry out political, economic, social and cultural development at their own discretion.
If we are talking about the self-determination of individual peoples within the framework of an independent state, then the issue must be resolved on the basis of specific circumstances in the context of the interrelated basic principles of international law.
Realization of self-determination by one people within the framework of a multinational sovereign state should not lead to violation of the rights of other peoples. It is necessary to distinguish the self-determination of peoples (nations) that do not have any statehood from the self-determination of peoples (nations) that have already achieved statehood.
In the first case, the national sovereignty of the people is not yet ensured by state sovereignty, and in the second, the people have already exercised their right to self-determination and their national sovereignty is protected by the state - an independent subject of international law.
Self-determination of the people within multinational state does not at all imply the obligation to secede and create one’s own independent state.
Such self-determination is associated with an increase in the level of independence, but without a threat to human rights and the territorial integrity of the state.
8. Legal personality of international organizations.
An international organization cannot be regarded as a mere sum of its member states or even as their collective representative speaking on behalf of all. In order to fulfill its active role, an organization must have a special legal personality that is distinct from the mere summation of the legal personality of its members. Only with such a premise does the problem of the influence of an international organization on its sphere make any sense.
The legal personality of an international organization includes the following four elements:
a) legal capacity, i.e. the ability to have rights and obligations;
b) legal capacity, i.e. the ability of an organization to exercise rights and obligations through its actions;
c) the ability to participate in the process of international law-making;
d) the ability to bear legal responsibility for their actions.
One of the main attributes of the legal personality of international organizations is the presence of their own will, which allows them to directly participate in international relations and successfully carry out their functions. Most Russian lawyers note that intergovernmental organizations have an autonomous will. Without its own will, without the presence of a certain set of rights and obligations, an international organization could not function normally and carry out the tasks assigned to it. The independence of will is manifested in the fact that after an organization is created by states, it (will) already represents a new quality compared to the individual wills of the organization’s members. The will of an international organization is not the sum of the wills of the member states, nor is it a merger of their wills. This will is “separated” from the wills of other subjects of international law. The source of the will of an international organization is the constituent act as a product of coordination of the wills of the founding states.
Uruguayan lawyer E. Arechaga believes that international organizations have their own legal personality and, internationally, occupy independent positions and independent of member states. Back in 1949 international Court came to the conclusion that the UN is a subject of international law. The Court rightly emphasized that recognizing the UN as a quality international law does not mean recognizing it as a state, which it in no way is, or asserting that it has the same legal personality, rights and responsibilities as states. And even more so, the UN is not some kind of “superstate”, no matter what that means. The UN is a subject of international law and is capable of possessing international rights And obligations, and it is also able to assert its rights by putting forward international legal requirements 1. A number of constituent acts of intergovernmental organizations directly indicate that organizations are subjects of international law. For example, the Charter of the Joint Institute for Nuclear Research dated September 23, 1965 states: “The Institute, in accordance with the status of an intergovernmental organization, has international legal personality” (Article 5).
Each international organization has only the amount of legal personality assigned to it, and the limits of such subjectivity are determined primarily in the constituent act. An organization cannot take actions other than those provided for in its charter and other documents (for example, in the rules of procedure and resolutions of the highest body).
The most important features of the legal personality of international organizations are the following qualities.
1. Recognition of the quality of an international personality by subjects of international law. The essence of this criterion is that member states and relevant international organizations recognize and undertake to respect the rights and obligations of the relevant intergovernmental organization, their competence, terms of reference, grant the organization and its employees privileges and immunities, etc. According to the constituent acts, all intergovernmental organizations are legal entities. Member States shall grant them legal capacity to the extent necessary for the performance of their functions.
The considered feature of intergovernmental organizations is quite clearly manifested through the institution of representation. The constituent acts of such organizations emphasize that each of the contracting parties is represented in the organization by an appropriate number of delegates.
The recognition of intergovernmental organizations (IGOs) as an international personality by other international organizations is evidenced by the fact that a number of higher-ranking intergovernmental organizations participate in the work of IGOs (for example, the EU is a member of many MPO). The next factor is the conclusion between intergovernmental organizations of agreements of a general (for example, cooperation) or specific nature (on the implementation of individual activities). The legal capacity to conclude such contracts is provided for in Art. 6 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986
2. Availability of separate rights and obligations. This criterion for the legal personality of intergovernmental organizations means that organizations have rights and responsibilities that are distinct from the rights and responsibilities of states and can be exercised at the international level. For example, UNESCO's Constitution lists the following responsibilities of the organization:
a) promoting rapprochement and mutual understanding of peoples through the use of all available media;
b) encouragement of development public education and dissemination of culture; c) assistance in preserving, increasing and disseminating knowledge.
3. The right to freely perform one’s functions. Each intergovernmental organization has its own constituent act (in the form of conventions, charters or resolutions of the organization with more general powers), rules of procedure, financial rules and other documents that form the internal law of the organization. Most often, when performing their functions, intergovernmental organizations proceed from implied competence. When performing their functions, they enter into certain legal relations with non-member states. For example, the UN ensures that states that are not members act in accordance with the principles set out in Art. 2 of the Charter, as may be necessary for the maintenance of international peace and security.
The independence of intergovernmental organizations is expressed in the implementation of the regulations that constitute the internal law of these organizations. They have the right to create any subsidiary bodies that are necessary to perform the functions of such organizations. Intergovernmental organizations may adopt rules of procedure and other administrative rules. Organizations have the right to revoke the vote of any member who is in arrears in their dues. Finally, intergovernmental organizations can demand an explanation from a member if it does not implement recommendations regarding problems in their activities.
4. The right to conclude contracts. The contractual legal capacity of international organizations can be considered one of the main criteria of international legal personality, since one of characteristic features A subject of international law is his ability to develop norms of international law.
In order to exercise their powers, agreements of intergovernmental organizations have a public law, private law or mixed nature. In principle, every organization can conclude international treaties, which follows from the content of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. In particular, the preamble of this Convention states that an international organization has such legal capacity to conclude treaties as necessary for the performance of its functions and the achievement of its objectives. According to Art. 6 of this Convention, the legal capacity of an international organization to conclude treaties is governed by the rules of that organization.
The founding treaties of some organizations (eg NATO, IMO) do not contain provisions on the authority to conclude or participate in treaties. In such cases, the rules of implied competence apply. The charters of other organizations clearly establish the authority to conclude international treaties. Yes, Art. 19 of the UN IDO Charter authorizes the Director General, on behalf of this organization, to enter into agreements establishing appropriate relationships with other organizations of the UN system and other intergovernmental and governmental organizations. The INMARSAT Convention provides for the right of this organization to enter into agreements with states and international organizations (Article 25).
In its own way legal nature and legal force, treaties of international organizations do not differ from agreements concluded between primary subjects of international law, which is expressly noted in Art. 3 Vienna Convention on the Law of Treaties 1969
Thus, according to the fair opinion of T. M. Kovaleva, the international nature of agreements concluded by interstate organizations is determined by the following factors: 1) the parties to such agreements are subjects of international law; 2) the subject of regulation falls within the sphere of international relations; 3) the norms established by such treaties that define the rights and obligations of the parties are included in the system of norms of international law; 4) the procedure for concluding such agreements basically corresponds to the procedure established by international law for international agreements, and the essence of this process is the coordination of the wills of the subjects of international law; 5) issues arising in connection with the implementation of such agreements are not subject to the national law of the state, unless otherwise provided in the agreement itself.
5. Participation in the creation of international law. The law-making process of an international organization includes activities aimed at creating legal norms, as well as their further improvement, modification or abolition. It should be especially emphasized that no international organization, including a universal one (for example, the UN, its specialized agencies), has “legislative” powers. This, in particular, means that any norm contained in recommendations, rules and draft treaties adopted by an international organization must be recognized by the state, firstly, as an international legal norm, and secondly, as a norm binding on a given state.
The law-making power of an international organization is not unlimited. The scope and type of law-making of an organization are strictly defined in its constituent agreement. Since the charter of each organization is individual, the volume, types and directions of law-making activities of international organizations differ from each other. The specific scope of powers granted to an international organization in the field of lawmaking can only be determined on the basis of an analysis of its constituent act.
In the international legal literature, two points of view have been expressed regarding the grounds for the law-making process of an international organization. Some authors believe that an international organization has the right to develop and approve rules of law even if there are no specific instructions about this in its constituent act.
Others believe that the law-making capacity of an international organization should be based on its constituent act. In other words, if an international organization is not endowed with law-making functions by its charter, then it does not have the right to engage in them. Thus, according to K. Skubiszewski, in order for an organization to approve norms of law other than the norms of internal law, it must have explicit powers to do so contained in its charter or in another agreement concluded by member states 2 . P. Radoinov adheres to approximately the same position. In his opinion, an international organization cannot be approached from the position of implied competence, since this concept can lead to a revision of the constituent act. P. Radoinov believes that the possibilities and limits of lawmaking should be outlined in the charter of an international organization.
An analysis of the law-making international organization shows that the first group of authors adheres to a more realistic position. For example, the charters of many organizations do not contain provisions on their authority to approve norms of international law. However, they take an active part in all stages of the law-making process. Another thing, and this circumstance must be especially emphasized, is that international organizations do not have equal opportunities (more precisely, competence) to participate in the formation of international legal norms. The law-making activities of international organizations always have a special focus and must be fully consistent with the goals of such an organization. The specific forms and degree of participation of an international organization in the rule-making process ultimately depend on the functions it performs.
It is important to find out whether all international organizations have law-making powers. To do this, it is necessary to consider the stages of lawmaking in general and international organizations in particular.
Next, we should answer the question of which international organizations have law-making powers. If we proceed from the stage-by-stage nature of law-making, then international organizations, teams of scientists, and individual specialists have a legal consciousness.
One of the main criteria for the possibility of law-making by international organizations is their legal personality. International non-governmental organizations do not have international legal personality and therefore cannot endorse international law. However, to deny the role of these organizations in international relations and the presence of a certain minimum of legal elements that enable these organizations to act means ignoring objective facts. On the other hand, identifying these organizations with intergovernmental ones and recognizing them as subjects of international law is at least unrealistic. G. Tunkin notes that the corresponding draft documents of such organizations generally occupy the same place in relation to the rule-formation process as the doctrine of international law.
Lawmaking in full, i.e., including the stage of legal creation, is possessed only by those international organizations that can develop legal norms, improve or change them.
Lawmaking by an international organization is legitimate only if it is aimed at the progressive development of international law. This follows from the provisions of the UN Charter, in particular the preamble, art. 1 and 13. An indispensable condition for the law-making activity of an international organization is that the norms thus developed must comply with imperative norms and generally recognized principles of general international law.
Thus, a number of conclusions can be drawn about the law-making of international organizations:
I) law-making by an international organization is lawful only if it is aimed at the progressive development of international law;
2) lawmaking is fully inherent only in those international organizations that have international legal personality;
3) international organizations have lawmaking in the same volume and direction as provided for in their constituent acts.
In the process of creating norms regulating relations between states, an international organization can play various roles.
In particular, in the initial phases of the law-making process, an international organization may:
a) be an initiator making a proposal to conclude a certain interstate agreement;
c) convene in the future a diplomatic conference of states in order to agree on the text of the treaty;
d) play the role of such a conference itself, coordinating the text of the treaty and approving it in its intergovernmental body;
e) after the conclusion of the agreement, perform the functions of a depositary;
f) exercise certain powers in the field of interpretation or revision of a contract concluded with its participation.
International organizations play a significant role in shaping customary rules of international law. The decisions of these organizations contribute to the emergence, formation and cessation of customary norms.
Thus, the content of law-making by an international organization can take various forms: from participation in an auxiliary process to the creation by the organization itself of legal regulations binding on member states, and in some cases even on non-member states of the organization.
The method of law-making of an international organization is the totality of its legal actions aimed at creating rules of law. Of course, not all legal actions of an international organization are law-making. Not every rule established by an international organization can be considered a norm of international law.
1) regulates relations between subjects of international law;
2) is mandatory for subjects of international law;
3) wears general character, i.e., not limited to a specific addressee and specific situations.
For example, executive agreements concluded by international organizations are not normative, i.e. those that deepen the legal norms enshrined in the founding agreement.
6. The right to have privileges and immunities. Without privileges and immunities, normal practical activities of any international organization are impossible. In some cases, the scope of privileges and immunities is determined by a special agreement, and in others - by national legislation. However, in general form, the right to privileges and immunities is enshrined in the constituent act of each organization. Thus, the UN enjoys such privileges on the territory of each of its members. And immunities that are necessary to achieve its goals (Article 105 of the Charter). The property and assets of the European Bank for Reconstruction and Development (EBRD), wherever located and whoever holds them, are immune from search, confiscation, expropriation or any other form of seizure or disposition by executive or legislative action (Article 47 of the Agreement on the establishment of the EBRD). The scope of privileges and immunities of a particular organization is determined in more detail in agreements on headquarters, on the establishment of representative offices on the territory of states or under other organizations. For example, the Agreement between the Russian Federation and the UN on the establishment of a joint UN office in Russia in 1993 determines that the UN, its property, funds and assets, wherever and in whose possession they are, enjoy immunity from any form of judicial intervention, except in cases when the Organization itself expressly waives immunity. The premises of the UN Office are inviolable. The relevant authorities of the Russian Federation do not enter the premises of the Representative Office to perform any official duties except with the express consent of the head of the Representative Office and on the terms approved by him or him. The archives of the Mission, the UN and in general all documents belonging to them, no matter where and in whose possession they are, are inviolable. The Mission and the UN, their assets, income and other property are exempt from all direct taxes, fees and duties, as well as from customs duties, import or export prohibitions on the import and export of items for official use and proprietary publications. Persons performing services on behalf of the UN shall not be subject to legal liability for anything said or written and for all acts committed by them in carrying out UN programs or other related activities.
Officials and persons invited by the Joint Institute for Nuclear Research enjoy the following privileges and immunities in the Russian Federation:
a) are not subject to judicial and administrative liability for all actions committed in the performance of their official duties (this immunity continues to be granted after the end of their term of service in the Organization);
b) are exempt from state official duties;
c) are exempt from paying personal income tax on income received in the Organization;
d) are exempt from restrictions on immigration and registration as foreigners;
e) have the right, without paying customs duties, to introduce their furniture, household and personal items upon initial occupation of a position in Russian Federation.
The provisions of paragraphs “b”, “d” and “e” apply to family members of an official living with him.
However, privileges and immunities are granted to relevant individuals in the interests of the organization and not for their personal benefit. A senior official (Secretary General, Director General, etc.) has the right and obligation to waive immunity granted to a person in cases where the immunity would interfere with the course of justice and can be waived without prejudice to the interests of the organization.
Any organization cannot invoke immunity in all cases where it, on its own initiative, enters into civil legal relations in the host country.
The 1995 Agreement between the Russian Federation and the Joint Institute for Nuclear Research on the location and conditions of activity of the institute in the Russian Federation states that this organization enjoys immunity from any form of judicial intervention, except in cases where it itself expressly waives immunity in any way. specific case.
However, the Organization does not enjoy immunity in respect of the following:
a) a civil claim in connection with nuclear damage caused on Russian territory;
b) a civil claim by a third party for damages in connection with an accident caused in the Russian Federation by a vehicle owned by the Organization or operated on its behalf;
c) a civil claim in connection with death or injury caused in the Russian Federation by an act or omission on the part of the Organization or a member of its personnel;
d) claims brought by persons employed by the Organization in the Russian Federation on an hourly basis in connection with the non-fulfillment or improper fulfillment by the Organization of employment contracts concluded with such persons.
9. Principles of modern public international law.
10. Types of territories according to public international law.
In international law, territory is understood as the material basis of the life of society and the existence of the state.
Depending on the legal regime in international law, the following are distinguished:
1. State territory- its legal regime is determined by national legal acts (state legislation). It includes: land territory within state border state and its subsoil; waters of rivers, lakes, estuaries, reservoirs, swamps, ports, bays (including bays historically owned by the state), internal sea waters, territorial sea waters; airspace over the land and water territory of a state. In the Russian Federation, the regime of these territories is determined by the Law of the Russian Federation “On the State Border of the Russian Federation”, the Law of the Russian Federation “On Subsoil” (as amended by the Federal Law of March 3, 1995), the Air Code of the Russian Federation, the Federal Law on Internal sea waters, territorial sea and adjacent zone of the Russian Federation.
2. Mixed territory - its legal regime is determined by the norms of international law, and the procedure for exercising the sovereign rights of the state in these territories is determined by the norms of national legislation. It includes: an exclusive economic zone and a continental shelf. In international law, the regime of these territories is determined by the 1982 UN Convention on the Law of the Sea. In the Russian Federation, the regime of territories is determined by the Federal Law on the Continental Shelf of the Russian Federation of November 30, 1995, and the Federal Law on the Exclusive Economic Zone of the Russian Federation of December 17, 1998.
3. International territory - its legal regime is determined exclusively by the norms of international law. The international territory includes: outer space and celestial bodies (Treaty on Principles for the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, dated January 27, 1967); the high seas, the seabed area and the airspace above the high seas (1982 UN Convention on the Law of the Sea); Antarctica (Antarctic Treaty of December 1, 1959).
11. Composition and legal nature of the state territory.
Territory is a part of the globe in which the state exercises its supremacy, being the supreme authority in relation to all persons and organizations located within this territory.
The territory includes land with its subsoil, waters, including the seabed, and the air space overlying the land and water. The airspace includes the troposphere, stratosphere and some part of the overlying space available for flights.
The supremacy of a state on its territory is its ability to use, in accordance with the law, all means of coercive power against its citizens and foreigners on this territory, unless there is an agreement to the contrary. The laws of a state, as is known, can extend to its citizens beyond the state border; power coercion - no.
The territory of the state is integral and inviolable. This principle was first proclaimed by the French bourgeois revolution of 1789. Our October Revolution 1917 confirmed this principle. Most states in the world base their policies on it.
The UN Charter (1945) prohibited the use of force against “the territorial integrity or political independence of any State.” The corresponding sections were in the agreements between the USSR and Germany (August 12, 1970); Poland with Germany (December 7, 1970); in the UN Declaration on Principles of International Law and Cooperation of States in accordance with the UN Charter; in the Helsinki Final Act, which states: “The participating States regard as inviolable all the boundaries of each other, as well as the boundaries of all States in Europe, and they will therefore refrain now and in the future from any encroachment on these boundaries” (Art. III).
12. State borders.
State borders - land and water between states - are established by agreement, air and subsoil boundaries - are derived from the first two; The border of territorial waters adjacent to open water spaces is established by the state independently. The following are used as a means of establishing the state border:
1) delimitation - contractual determination of the direction and position of the border with a description and drawing it on a map;
2) demarcation - establishing a state border on the ground. It is carried out by mixed commissions of border states through the construction of border markers. The commission draws up a detailed protocol on the work done (detailed - in the sense of both details and indication of significant circumstances characteristic of certain sections of the border).
The border regime is fixed in the agreement. On rivers, as a rule, the border is established along the fairway if the river is navigable, or in the middle if it is not.
Changing the border or its regime is possible only on the basis of a special agreement. In border areas, states are free to establish the necessary border regime on their territory. Such freedom, however, is limited by the principle of non-damage to the neighboring party: for example, work that could change the level or course of border rivers or lead to their pollution should not be allowed. Issues related to navigation along border rivers (lakes) or their other economic use are resolved by agreement.
The border strip is usually set at a width of no more than 2-5 km. Problems arising in connection with the state border are resolved by specially appointed commissioners (commissioners). State regime
13. Population and its international legal regulation.
Under Population In international law, we understand the totality of individuals (people) living on the territory of a certain state and subject to its jurisdiction.
The concept of the population of any state includes:
1) citizens of a given state (the bulk of the population);
2) foreign citizens;
3) persons with dual citizenship (bipatrids);
4) persons without citizenship (stateless persons)18. Legal status of a person and citizen includes: citizenship; legal capacity and capacity; rights and freedoms; their guarantees; responsibilities. The legal status of the population, determined by the scope of its rights and obligations and the possibility of their implementation, in different countries is not the same. It is determined by the political regime of a particular state, the level of socio-economic development, national and cultural characteristics, traditions, customs and other factors6. Each state has legally established differences in the legal status of its own citizens (subjects), foreigners, bipatrids and stateless persons17. The legal status of the population of any country is regulated by internal legislation - constitutions, citizenship laws and other regulations of the state7. At the same time, there is a certain group of issues that are regulated on the basis of international legal norms and principles, for example, the regime of foreigners, the protection of national minorities and indigenous populations. In principle, the entire population of a state is under its jurisdiction. There are a number of universal international documents that are the basis for broad recognition of the rights of all categories of the population of any state 6 .
14. International legal issues of citizenship.
Citizenship in legal science is usually understood as a stable legal connection between a person and the state, giving rise to their mutual rights and obligations. By its nature, the institution of citizenship is regulated by the norms of national legislation and is classified as a sovereign issue of the national legal system. However, in some cases, the institution of citizenship also collides with international law. International legal issues of citizenship include:
1) conflict of laws issues of citizenship;
2) issues of statelessness (statelessness);
3) issues of multi-citizenship (bipatrism).
By conflict of citizenship issues, it is customary to understand the clash of norms of different national legal systems, leading to the emergence of bipatrism and apatrism. Resolving conflicts in laws on citizenship is possible in modern international law on the basis of international treaties on these issues. For example, the Convention, adopted on April 12, 1930, relating to certain issues related to conflict of laws on nationality. The Convention, in particular, provides that:
1. If a woman loses her citizenship due to marriage, this will condition her acquisition of her husband’s citizenship.
2. Naturalization of the husband during marriage does not entail a change in the citizenship of the wife, unless she has given consent.
Recognition of the international legal personality of nations and peoples is directly related to the adoption of the UN Charter, which enshrines as fundamental principle- the right of the nation and people to self-determination. This principle was further developed in documents adopted by the UN General Assembly: the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 and the Declaration of Principles of International Law of 1970, which established the personification of nations and peoples as subjects of international law. The terms “people” and “nation” in international instruments were considered identical.
The successful development of the anti-colonial struggle in the 60s of the twentieth century led to universal recognition of the international legal personality of nations and peoples who have embarked on the path of self-determination. The practice of concluding international treaties between sovereign states and national liberation bodies has spread, which, in addition, received observer status in international intergovernmental organizations, and their representatives have the right to participate in international conferences.
The norms of international law and the practice of international relations have determined the scope of the legal capacity of the fighting nation, which includes a complex of the following basic (subject-specific) 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 the work of international organizations and conferences;
The right to participate in the creation of international legal norms and to independently fulfill one’s obligations
The right to take coercive measures against violators of national sovereignty.
These rights, which form the basis of the international legal capacity of a people, have specifics, distinguishing it from the universal legal capacity of sovereign states. A people (nation) fighting for independence can participate in international relations only on issues related to the exercise of the right to self-determination. This situation is most clearly manifested in the practice of international organizations of the UN system. The UN Charter and the charters of other organizations of the UN system recognize only a sovereign state as a full member of the organization. National entities in the UN system have a special status - associate members or observers.
The doctrinal interpretation of the international legal personality of nations and peoples has developed in a rather contradictory and ambiguous manner. The main problem of scientific controversy was the question of determining the scope of the international legal capacity of a nation (people).
The existence of the international legal personality of nations and peoples was most consistently defended in Soviet international legal doctrine, coming from ideas of national sovereignty, due to the possession of which a nation (people) is the main (primary) subject of international law, endowed universal legal capacity. The nation (people) was understood as not just the population living in certain territory, but an organizationally formalized cultural and historical community, aware of its unity. Soviet scientists believed that every people (nation) is a potential subject of international law, but it becomes a participant in real international legal relations from the moment the struggle for its political self-determination begins.
IN Western international legal doctrine The international legal personality of nations and peoples was clearly recognized only as a result of the successful development of the anti-colonial movement. However, the universal scope of the legal capacity of this subject of international law has never been recognized by Western scientists. In general the essence of this doctrine can be expressed as follows: a nation that has a political organization and independently carries out quasi-state functions has the right to participate in international relations, but has a limited scope of legal capacity, including powers of a specific nature (the right to decolonization, the right to social, economic and political self-determination, the right of national minorities demand protection and defend your rights).
In the last decade, approaches to determining the legal personality of nations (peoples) fighting for independence have changed and in domestic (modern) international legal doctrine. Russian researchers also recognized that a nation (people) has a specific legal capacity limited by the right to self-determination. In addition, today, when the vast majority of former colonial peoples have achieved independence, the right of a nation to self-determination has begun to be viewed in another aspect, as the right to the development of a nation that has already freely determined its political status. Most domestic researchers now believe that the principle of the people’s right to self-determination is necessary be consistent with other principles of international law, especially when it comes to the self-determination of individual nations within the framework of a multinational sovereign state. Such self-determination does not at all imply the obligation to secede and create a new state. It implies an increase in the level of independence, but without threatening the territorial integrity of the state and human rights. This position was consolidated in the resolution of the Constitutional Court of the Russian Federation dated March 13, 1992, which states that “without denying the right of the people to self-determination, exercised through a legitimate expression of will, one should proceed from the fact that international law limits it to compliance with the principle of territorial integrity and the principle respect for human rights."
The legal personality of nations fighting, like the legal personality of states, is objective in nature, i.e. exists independently of anyone's will.
A characteristic feature of modern international law is the recognition and affirmation in international life of the principle of equality and self-determination of peoples. Namely peoples, and not nations, because in the UN Charter this principle is enshrined as a generally recognized norm of international law. This position of the UN is obviously indicated by the fact that there are multi-ethnic and mono-ethnic peoples. And if the principle of self-determination of nations were proclaimed, then its application to multi-ethnic peoples would be incorrect.
At the same time, it should be noted that there is still no generally accepted concept of “people” within the international community, despite more than 100 formulations in the doctrine of international law. Judging by the world practice of exercising the right of peoples to self-determination, including in cases where this took place under the supervision of the UN, the concept of “people” includes a tribe, a group of tribes, a nationality, an ethnic nation, a religious community, and a linguistic community.
Therefore, speaking about the law of peoples, we are actually talking about the law of nations, it is constituted, or we can talk about a single political nation (given the multi-ethnicity of the people), claiming to realize its right to self-determination.
A nation is a historical community of people living in a certain territory and possessing the unity of political, economic, socio-cultural ways of life and a common language. Such joint functioning over a long historical period of time forms a community, has a common self-awareness of its unity and a fixed self-name. Such a community develops a mentality that distinguishes it from other human communities.
The political and legal basis of the international legal personality of nations is national sovereignty. However, on this basis, only those nations and nationalities that do not yet have their own statehood and that have not yet exercised the right to self-determination in the form of creating a sovereign state or in the form of voluntary entry into any state have independent international status.
The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly on December 14, 1960, emphasizes that peoples play decisive role in achieving their independence, by virtue of the right to self-determination, they establish their political status in accordance with their freely expressed will. In the Declaration of Principles of International Law of 1970, these provisions found their broad interpretation. The document states: “All peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State is obliged to respect this right in accordance with the provisions of the UN Charter.”
In the process of struggle for independence, a nation or people enters into legal relations, the object of these relations being mainly the issues of creating a sovereign state. Accordingly, the fundamental rights of a nation, a people fighting directly arise from the principle of self-determination. These include the following rights:
enter into relations with other states and international organizations;
guide official representatives for negotiating with states and for their participation in the work of international organizations and international conferences;
Participate in the creation of international legal norms and independently implement existing norms;
to use any form of resistance against the mother country, to use international legal protection in the process of struggle and to receive the necessary assistance from states, international organizations, as well as from other nations and nationalities who are fighting.
For example, the Arab people of Palestine, in the fight against Israel, occupied Arab territories, are seeking satisfaction of their legitimate national rights and the creation of an independent Palestinian state in accordance with UN decisions (UN General Assembly Resolution No. 181 (II) of November 29, 1947). The Palestine Liberation Organization realizes the international legal personality of its people, received UN permanent observer status, and became a member of the League Arab states, on this range of problems she maintains contacts and
cooperates with Israel - the state, controls this territory, many international intergovernmental organizations and states. By participating in specific international relations, the fighting nation acquires additional rights and protections.
In order for a nation to be recognized as a subject of international law, it must meet certain conditions:
must know and indicate the territory on which it intends to organize its state;
must have military formations;
must have a political center organization recognized as such, which must have a close connection with the population of the country and to which the specified military formations will be subordinate;
must be recognized in a certain way by international structures.
A distinction is made between rights that a nation already possesses (they stem from national sovereignty) and rights that it struggles to possess (they stem from state sovereignty). After realizing its right to self-determination and the creation of a national state, the nation as a subject of international law ceases to exist and begins to function in the international arena as a state.
Thus, the sovereignty of a nation fighting for national liberation 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 such a nation are protected by international law; a nation, on its own behalf, has the right to take coercive measures against violators of its sovereignty.