- resident population;
- certain territory;
- power;
- the ability to enter into relations with other states (Article 1).
These provisions have been confirmed more than once in subsequent international practice.
Other definitions of the state are also known in the literature. Polish professor L. Antonovich believes that “a state is a sovereign geopolitical entity that recognizes international law.” According to the German professor G. Mosler, “a state in the aspect of international legal order can be defined as an organized social entity, which at every stage historical process is the highest public authority, enjoying equality with all other similar entities."
The state is a necessary form of organization of the population to participate in the international community, to represent and protect its interests. It concentrates under its control the bulk of connections between other participants in international relations, national entities, individuals and legal entities.
Scientists, and sometimes politicians, express the opinion that there is a decline in the role of the sovereign state in international relations. In this case, they refer to the strengthening of the role international organizations and to international recognition of human rights. There is no doubt about the growing importance of organizations, but at the same time we should not forget that they are created by states and are designed to serve their interests.
Being Secretary General UN, B. Boutros Ghali stated that the experience of this Organization confirms “the importance and indispensability of the state as the main subject of the international community.” As for the international recognition of human rights, as has been noted more than once, this in no way affects the international legal status and role of the state.
Leading British lawyer J. Brownlie writes: “International law is at its core the law between States, and this remains true despite the emergence of various international organizations and the importance of human rights standards.”
In justifying the thesis about the decline in the importance of the state, some also refer to the growing influence of transnational corporations on international relations.
The famous American lawyer O. Schachter, referring in particular to the power of transnational corporations, argues that at present “national states are undergoing changes in their role and power, which affect their fundamental legal positions in the international order. This is not just a matter of stating reduction of their power, but also that many, for various reasons, consider such a reduction desirable."
Hardly anyone would dispute the growing role of transnational corporations in the global economy. Relying on their economic power, they influence the policies of states, including international ones. However, this influence is exercised through states and does not affect their legal status. Moreover, such views do not correspond to trends in the development of management of both the global and national economies. In both cases, the role of states is clearly increasing. Therefore, many reputable scientists rightly believe that there is no reason to expect a decrease in the importance of the state in the foreseeable future.
The norms that determine the status of a state are implemented primarily in its legal personality. In this way, the position of the state in the international community and its potential capabilities are determined. Legal personality has two aspects: legal capacity (the ability to have rights and obligations under international law) and capacity (the ability to independently exercise rights and obligations under international law).
In principle, international legal capacity and legal capacity are inseparable. But there are situations when, while maintaining the status of a subject international law, the state turns out to be completely or partially incapacitated. During the Second World War, the states occupied by Nazi Germany retained their legal capacity, and legal capacity was exercised to a limited extent by governments in exile. A similar situation occurred in our time during the occupation of Kuwait by Iraq.
Fundamental rights and obligations of the state
However, as the state began to expand its private legal activities (trade, acquisition of goods and services, real estate, etc.), the situation began to change. At the end of the last century, the concept of limited immunity appeared and has now become widely accepted. According to this concept, immunity is limited only to those relations in which the state acts as a bearer of sovereign power, actions performed by virtue of state power (jure imperii). As for legal relations of a commercial nature (jure gestionis), here the state does not have immunity, since legal entities and individuals entering into such relations with a foreign state cannot be deprived of legal protection.
In the post-war period, many states issued laws embodying the concept of limited immunity (Great Britain, USA, Singapore, Pakistan, South Africa, Canada, Australia). In other countries, the concept has been enshrined in court decisions. A 1963 decision of the Federal Constitutional Court of Germany stated that the granting of immunity depends on “whether the foreign state is acting in the exercise of its sovereign power or as a private individual, i.e. under private law.”
There was also a fundamental commitment to absolute immunity, determined by the characteristics of the socio-economic system. This was the position of socialist countries in which state property was the basis of the economy and a state monopoly was established foreign trade. This position is still felt in Russian legislation.
According to the current Civil Procedure Code of the RSFSR of 1964, “bringing a claim against a foreign state, securing a claim and foreclosure on the property of a foreign state located in the USSR can only be allowed with the consent of the competent authorities of the relevant state” (Part 1, Article 435). In other words, we are talking about absolute immunity. According to the Civil Code of the Russian Federation, the specifics of liability of the Russian Federation and its subjects “in relations regulated by civil legislation, with the participation of foreign legal entities, citizens and states are determined by the law on the immunity of the state and its property” (Article 127). However, such a law has not yet been adopted.
Absolute immunity not only impedes the development of commercial ties with the participation of states, but is also practically impossible to implement. By granting other countries the immunities arising from this concept, the state cannot count on a similar status in countries that adhere to the concept of limited immunity. Taking this into account, countries of absolute immunity stipulated that it be reciprocated. In this case, the real consequences of the concepts of absolute and limited immunity converge. In Part 3 of Art. 435 of the Code of Civil Procedure of the RSFSR states: “In cases where a foreign state does not provide the Soviet state, its property or representatives of the Soviet state with the same judicial immunity that, according to this article, is provided to foreign states, their property or representatives of foreign states in the USSR, the Council The Ministers of the USSR or another authorized body may order the use of retaliatory measures in relation to this state, its property or a representative of this state."
The concept of qualified immunity has formed the basis of legislation and judicial practice in many countries. However, it can hardly be considered a norm of international law. As shown by the responses of states to the draft articles on state immunities, not all of them were positive. Those who objected to the concept of limited immunity were primarily Belarus, Bulgaria, China and the USSR. Therefore, the question now arises of creating appropriate norms of international law. The first significant step in this direction was made as a result of the adoption by the Council of Europe of the European Convention on State Immunity and its Additional Protocol in 1972. The Convention confirmed the general principle of State immunity, but limited it through detailed exceptions, the list of which is exhaustive.
The content of the concept of “state” in terms of immunity is essential, on which the circle of bodies and persons enjoying immunity depends. On instructions from the UN General Assembly, the International Law Commission, taking into account comments from governments, in 1999 proposed the following definition of a state for use in the draft articles on immunity:
- the state and its various governing bodies;
- the constituent parts of the federal state and the political subdivisions of the state, authorized to take actions in the exercise of the power of the state (as we see, the parts of the federal and unitary state are equal. Further, we mean actions in the exercise of the power of the state);
- institutions of states and other entities to the extent that they are competent to act in the exercise of the power of the state;
- representatives of the state acting in this capacity.
Note that making a distinction between acts committed in furtherance of state power, and other acts is not always an easy matter, for example, in the arms trade. Like a number of other aspects, this aspect of the immunity of states and their property is still subject to regulation.
Great and small powers
For centuries, great powers have occupied a special, dominant position in the international system. They did not take into account the rights and interests of other states. They also created the norms of international law. According to some lawyers, and after the adoption of the UN Charter, the most powerful powers assumed the role of law-makers and lawbreakers, less powerful states are forced to content themselves with the role of being subject to international law (Professor of the University of Hawaii M. Gaas). The famous British lawyer J. Schwartzenberger argues that “power is a factor determining the place of sovereign states in the hierarchy of the international aristocracy.” Similar opinions are expressed today.
I think that this is not entirely true. Gone are the days when it was possible to deal with small countries with impunity. Nowadays, even the most powerful power cannot afford arbitrariness and is increasingly forced to take into account the opinions of others. The role of small powers has increased significantly. The literature notes that today the great powers are no less interested in a reliable rule of law than others.
The criteria for a great power have changed. As before, these are, of course, the most powerful powers. However, the importance in the structure of power has decreased military force, which played a decisive role in the past. The importance of economic, scientific and technical potential, level of organization and especially moral and political authority have increased.
The authority of the state depends to a large extent on the extent to which it represents and defends common interests. Great powers can strengthen their authority only if they adhere to international law. Their example also influences appropriate behavior other states.
The international legal order cannot ignore reality. Great powers have a special role to play in creating norms and ensuring respect for them. At the same time, they also bear a special responsibility for maintaining peace and law and order. There are many documents indicating that, in principle, the great powers are aware of their responsibility. In this regard, the documents of the meeting of Russian President V.V. that took place in May 2002 are indicative. Putin and US President George W. Bush, which discussed the main problems of ensuring international peace and security: the fight against terrorism in all its forms and manifestations, preventing the proliferation of weapons mass destruction, further reduction of the strategic offensive potentials of the two states, a new constructive mechanism for strategic security, etc.
The special responsibility of great powers for maintaining a peaceful order is enshrined in the UN Charter. They are permanent members of the Security Council, in which decisions are made based on their unanimity. However, to make a decision, the consent of other members of the Council is necessary. The principle of unanimity played a generally positive role in difficult conditions cold war. In the post-confrontation period, the role of the Council increased significantly, which indicates the vitality of the principle of unanimity in the new conditions.
There is a body of the most developed industrial countries - the G8 meeting (Great 8, or G-8). The meeting makes decisions on key problems of the world economy and, because of this, cannot but influence world politics. Today, the state's ability to influence the structure of the world economy is one of the main factors of its power. In addition, G8 meetings also make decisions on global political issues.
The situation of small countries changed significantly with the creation of the UN. The organization made it easier for many newly formed states to enter the international community. Here they gained the necessary experience, and their voice became audible. Today, small states (with a population of up to 10 million people) have 2/3 of the votes in the UN. In the coming years, their number will increase even more, as the safer the world becomes, the more small “ships” set sail on their own. As a result, the influence of small powers on decision-making and on the development of international law is growing.
The experience of the UN has shown that the majority of votes held by small countries also has its negative consequences. Minority of the population globe controls the majority of votes. Using their majority, small countries tried to ignore reality, in particular the interests of large states. As a result, many resolutions of the UN General Assembly were adopted, which remained a dead letter. This is seen as proof that rights are always associated with responsibility, and the more rights, the greater the responsibility. Meanwhile, one often hears about the irresponsibility of small countries. This point did not escape the attention of their leaders, who began to point out the importance of responsibility.
Strengthening the rule of law allows us to overcome the psychology of a small state, the selfishness of the weak, and its irresponsibility. On the other hand, ensuring reliable law and order is possible only with the participation of all states, regardless of their power. The political and legal activity of states is of great importance. By developing cooperation among ourselves and with large states, small countries can significantly increase their influence.
Thus, today all states have equal fundamental rights. However, the actual possibilities for using rights vary among states. In domestic law, subjects also have far from equal capabilities, which, however, does not at all deprive the principle of equality of meaning.
Unitary and complex states
Unitary state
As a result of the 1980 reform, the Belgian Constitution established that international cultural cooperation and cooperation on matters relating to the individual are the competence of the communities. When Belgium concludes treaties on issues within the competence of the communities, the councils of the latter participate in the negotiations. Regarding agreements concluded by communities with foreign contractors, the government stated that they do not have the nature of international treaties and therefore do not bind the Belgian state. The latter provision confirms that the state is not liable under agreements to which it is a party.
Within states there are autonomies, the capabilities of which in the international sphere are somewhat wider than those of other territorial divisions.
The Netherlands, for example, includes the Netherlands Antilles as an autonomous entity, in particular the island of Aruba. Given their connections with the countries of the Western Hemisphere, they are given the right to decide relevant issues themselves, but within the limits of autonomy. The international legal instrument for regulating these relations are the treaties of the Netherlands, for example the Dutch-American Agreement on Air Services between the Island of Aruba and the United States of 1986. A special procedure has been established for the adoption of such agreements. It involves the government and parliament of the Netherlands, as well as the autonomous parliament.
Thus, the issues of participation of parts of states in international relations are still awaiting their legal regulation. It is no coincidence that complications constantly arise in the practice of their implementation.
Confederation
In the Inter-American Convention on the Rights and Duties of States of 1933, the corresponding norm is formulated as follows: “A federal state constitutes only one person before international law” (Article 2). International practice confirms this norm.
There are several federations, the subjects of which have the right to conclude international agreements on a very limited range of issues (border, cultural, police, economic relations) under the control of the federal government. These include Germany, Switzerland, Austria and, to some extent, the USA and Canada.
There are two known federations whose subjects were constitutionally sovereign and could claim the status of subjects of international law. They were the USSR and the Socialist Federal Republic of Yugoslavia. The legal personality of the two union Soviet republics - Ukraine and Belarus - received international recognition through their membership in the UN. However, in reality this legal personality was largely of a formal legal nature. Both of these federations collapsed.
With the active participation of Soviet lawyer G.I. Tunkin, the UN International Law Commission has developed the following rule: “Member states of a federal union may have the legal capacity to conclude international treaties if such legal capacity is permitted by the federal constitution and within the limits established by it.” From this it is clear that we are not talking about full legal personality, but about the legal capacity to enter into contracts within the limits established by the constitution. However, even in this form the rule was not adopted by the Vienna Conference on the Law of International Treaties of 1968-1969. Yet the Commission's proposal remains the only sufficiently authoritative rule on the issue at hand.
However, it should be taken into account that many legal problems arise when implementing this rule. Federal legislation may make the agreement of its subject unenforceable. Also, an agreement concluded by a subject will be unenforceable if it contradicts the international obligation of the federation. Experience shows that neither the federations themselves nor their foreign partners, with rare exceptions, are ready to actually recognize the status of subjects of international law for members of the federation, even in limited form. Direct participation of federation members in international legal relations complicates them. Foreign states prefer to deal with the central government.
When concluding multilateral conventions mainly on human rights, the United States uses the so-called federal clause, according to which the federation assumes only those obligations that do not fall within the competence of the states. Under US influence, the reservation was embodied in several conventions. The 1951 Refugee Convention contains a federal article (Article 41), according to which, with respect to articles falling within the jurisdiction of the legislative power of the constituent entities of the federation, “the Federal Government will bring such articles to the attention of the appropriate state, provincial or cantonal authorities with favorable advice.” .
The federal clause is known even to the practice of US bilateral treaties. Some trade treaties that provide for the reciprocal provision of national treatment contain provisions that if a particular state does not provide such treatment to citizens of the other party, then citizens living in that state will not receive such treatment in the territory of that party (Trade Treaty with Netherlands 1956). Such provisions place the other party in a clearly unequal position. It is no coincidence that the federal clause has repeatedly provoked protest from other states.
Russian Federation
Consequently, the constituent entities of the Russian Federation have the ability to influence the contractual relations of the Federation. The actual significance of these capabilities depends on practice. Nevertheless, this provision reduces the need for subjects to independently participate in contracts.
Recognition of States
Regarding the legal significance of recognition for a new state, there are two theories: constitutive and declaratory. According to the first, recognition constitutes and gives rise to the international legal personality of the state, transforming the actual state into a legal one. IN last years the number of supporters of this theory began to grow. When justifying their views, they refer to the need to strengthen the control of the international community in relation to newly formed states.
The declarative theory proceeds from the fact that the state acquires legal personality by virtue of the very fact of its formation, regardless of recognition. Recognition only declares the fact of the formation of a new state. This theory finds sufficient basis in modern international law.
By virtue of the principle of sovereign equality, all states are legally equal, regardless of the time of their formation. Each state is obliged to respect the legal personality of other states. Therefore, the newly formed state becomes a subject of international law by virtue of the very fact of creating a sovereign entity. It is subject to the rules of general international law. Of course, the new state itself must recognize and comply with these norms.
In the Charter of the Organization of American States we read: “The political existence of a state does not depend on its recognition by other states. Even before its recognition, the state has the right to protect its integrity and independence, to ensure its security and prosperity...” (Article 9).
This is the legal side of the issue. At the same time, one cannot fail to take into account that the actual enjoyment of rights depends on the recognition of the new state as a subject of international law by other states. State recognition is a unilateral act by which the state recognizes the formation of a new state and thereby its international legal subjectivity. Any legal relationship is possible only if the participants recognize each other as subjects of law.
In the literature and, perhaps, in practice, the prevailing opinion is that recognition depends entirely on the will of the recognizing state. At the same time, some prominent jurists (G. Lauterpacht, B. Cheng) believe that there is an obligation to recognize a state if it meets the necessary requirements. There are certain reasons for such an opinion. According to the UN Charter, states must develop friendly relations. Refusal to recognize is considered an unfriendly act. The principle of cooperation obliges states to cooperate regardless of differences between them.
What are the necessary requirements? The UN Charter makes the following requirements for states wishing to become members of the UN: peacefulness, acceptance of obligations under the Charter, ability to fulfill these obligations (Article 4). It seems that, with appropriate modifications, these requirements apply to the recognition of states.
Consequently, for full participation in international legal relations, the state must meet certain requirements, which tend to expand. According to the principle of non-use of force, a state created as a result of aggression cannot be recognized as a legitimate entity. An example is the states created by Hitler's Germany in the conquered territories.
As a general rule, recognition of a State is complete and final. This recognition is called de jure recognition. It cannot be conditional, i.e. provided subject to certain requirements being met. It cannot be revoked.
Sometimes the process of state formation is delayed, for example, as a result of civil war. In such cases, temporary recognition may be granted, while limited recognition may be de facto recognition. It is usually accompanied by the establishment of semi-official relations without legal registration and can be revoked. The extent of such recognition varies from case to case.
The form of full recognition (de jure) may be express or implied. In the first case, we are talking about a corresponding statement, a note, in which the intention to recognize de jure is clearly expressed. A desire to establish diplomatic relations is also usually reported. Acts of implied recognition are the establishment of diplomatic relations and the conclusion of a bilateral treaty.
A growing number of states (Great Britain, USA, Belgium, Australia, etc.) are abandoning the practice of declaring recognition of governments, limiting themselves to establishing or refusing to establish diplomatic relations. True, the essence of the matter does not change from changing the form of recognition. But in general, this kind of practice is justified: the role of a foreign state as a judge in assessing the legality of the government is softened.
At the same time, there is a tendency towards increased control by the international community. Suffice it to recall the role of the UN in ensuring non-recognition of the racist regime in Southern Rhodesia. IN Latin America The "Betancourt Doctrine" is based on the need to refrain from recognizing governments that came to power through violence, rather than through free elections, and that do not respect human rights. Similar views are also expressed in Africa.
The overthrow of the democratically elected government in Sao Tome and Principe in 1995 was condemned by the UN, the Organization of African Unity and several states. The US said it saw this as "the determination of the international community to apply pressure to full recovery democracy in Sao Tome and Principe." The United States suspended the Assistance Agreements for this state.
Similar measures were taken previously by some states. After the overthrow of the Allende government in Chile, Sweden and Finland, respectively, in 1973 and 1974. terminated the Agreement on financial and economic cooperation concluded with this country. It is impossible not to notice, however, that such a practice has not become widespread.
The Charter of Paris for a New Europe in 1990 recognized a democratic form of government as the only acceptable one. There is reason to believe that this principle will gain acceptance. Without democracy, it is impossible to ensure peace, equal cooperation, and international legal order.
Recognition of the government should not be premature or delayed indefinitely, as this may serve as a form of interference in internal affairs or a way of exerting pressure.
As with a state, government recognition can be de facto or legal. The first is used in cases where the new government does not meet the requirements necessary for its final recognition, for example, its power in the country has not yet been sufficiently established. Meanwhile, the interests of a foreign state require the establishment of certain ties with it, for example, to protect its citizens or property.
Actual recognition is temporary, provisional and subject to withdrawal. The consequences of actual recognition are different in each case. Sometimes they are very close to full recognition. An example is the recognition by Great Britain of the government of the People's Republic of China during a period of long non-recognition by Western powers.
The government's legal recognition is final and cannot be revoked. True, rare cases of recall are known in practice. Both actual recognition and legal recognition have retroactive effect and apply to legal acts of the recognized government issued before recognition.
It is believed that only a legally recognized government can lay claim to state property abroad, such as archives, bank deposits, and real estate.
As for the state formed on the seceded territory, there are two different positions on this matter. According to the first, traditional one, the new state does not bear obligations under the treaties of the predecessor state.
In 1947, Pakistan separated from India. On this occasion, the UN Secretariat took the following position: "... in international status There is no change in India; it continues to exist as a state with all treaty rights and obligations and therefore with all the rights and obligations of a member of the United Nations. The seceded territory, Pakistan, will be a new state; it will not have the rights and obligations of the former state and, of course, will not be a member of the United Nations."
A different position is reflected in the Convention on Succession in Respect of Treaties. Treaties of the predecessor state remain in force for the successor states (Part 1, Article 34). Practice rather confirms the position of the UN Secretariat.
After the collapse of Yugoslavia, the newly formed states were accepted as members of the UN. The name "Yugoslavia" was retained by the federation of two republics - Serbia and Montenegro, the territory and population of which amounted to about half the territory and population of the former Yugoslavia. Belgrade declared its right to take Yugoslavia's place in the UN. There were sufficient legal grounds for this, as well as relevant UN practice. Changes in relation to territory and population do not affect the legal personality of the state. However, after speeches by a number of representatives accusing Serbia of aggressiveness and committing war crimes, Yugoslavia’s application was rejected.
The Security Council Resolution of 30 May 1992 stated that “the claim of the Federal Republic of Yugoslavia (Serbia and Montenegro) for the automatic continuation of the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations is not generally accepted.” In another resolution, the Council considered that "the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist." All this once again confirms the role of political factors in resolving issues of legal succession.
UN practice knows the case of restoration of membership in the event of the secession of a state. In 1961, Syria withdrew from the UAR and its UN membership was renewed without difficulty.
The solution to the problem of succession as a result of the liquidation of the USSR has significant specificity. The fact of liquidation was recorded in a number of documents. The Alma-Ata Declaration of the CIS countries in 1991 states: “With the formation of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist.” To the question about succession in relation to treaties, the same Declaration contained a clear answer: the CIS participants guarantee “the fulfillment of international obligations arising from treaties and agreements of the former USSR".
From this it is clear that all members of the CIS were equally considered as successors to the USSR. However, the implementation of this decision was practically impossible. The USSR was one of the pillars of the existing international political and legal system. His role was especially great in the military-political structure, as well as in the UN system. The liquidation of the USSR put all this at risk. None of the legal successors could claim membership in the UN by way of succession, let alone a seat as a permanent member of the Security Council.
Russia faced serious difficulties in ensuring its rights. A way out of this situation was found in the concept of “Russia: the state is the successor of the USSR.” It means that the place of the USSR in world politics is taken by Russia. She is the main, general successor of the Union, and she bears the main responsibility for fulfilling its obligations. It is significant that this concept was recognized by the international community and enshrined in international instruments.
All legal successors of the USSR become parties to the multilateral treaties concluded by it. Bilateral treaties remain with Russia. The exception is when the treaty is directly related to the territory of the successor state. First of all, the state border treaties remain in full force for them.
Newly independent states occupy a special position with regard to succession, i.e. those whose territory was dependent territory. The Vienna Conventions established the principle of a clean slate (tabula rasa). The newly independent State is not bound to comply with any treaty of the predecessor State which, at the time of succession, was in force in relation to its territory.
With regard to multilateral treaties, the Vienna Convention on the Succession of Treaties of 1978 established the right of a newly independent state to determine its status by notification. This rule generally reflects the practice of the UN Secretariat; it creates conditions for a clear definition of the composition of participants.
If we are talking about an agreement with a limited number of participants, then participation in it of a new independent state is possible only with the consent of the other participants (Article 17). In the first case, we are talking mainly about treaties that define norms common to all states, and in the second, about treaties with a significant number of participants on specific issues. Unilateral accession of a new state to them may affect the rights of other participants.
Bilateral treaties of the predecessor state remain in force only if both the new state and the other party agree.
If we turn to the practice of the newly independent states, it turns out that they, with rare exceptions, realized the benefits of maintaining the treaty relations of their predecessor. Recreating a system of such relations may require great effort from them, and it is impossible to remain in a legal vacuum. Even in this case, the validity of the principle of maximum preservation of international obligations is confirmed from the point of view of not only the general legal order, but also the interests of an individual state.
New states consider themselves bound by conventions containing general norms. Of even greater practical importance for new states is the preservation of bilateral treaties of the predecessor state. Therefore, it is not uncommon for such states to claim almost complete succession to treaties.
Changes in government power and treaties
It should also take into account the existing practice of states to confirm their willingness to comply with treaties with a country in which a military coup has occurred. After such a coup in Somalia in 1969, the USSR declared that it would comply with all its obligations towards Somalia. Similar statements were made at the same time by France, the USA, and others.
Particularly profound changes in states occur as a result of social revolutions, which change not only the nature of power, but also the nature of society. Foreign policy is also inevitably changing. Naturally, the question arises about the impact of the social revolution on the country's international obligations.
The French bourgeois revolution raised the slogan “The sovereignty of peoples is not bound by the treaties of tyrants.” However, it was not possible to demonstrate the meaning of this slogan in practice. Continuous wars pitted France against other states and destroyed its treaty relations. The revolution suffered. Perhaps a different policy could have preserved revolutionary France. Unlike politics, the progressive ideas of revolutionary France had a great influence on international law. It is enough to remember human rights, equality of peoples and states, and much more.
To more big changes in the state led by the October Socialist Revolution in Russia. One of the first acts of the Soviet state was the Peace Decree of 1917, which formulated the foundations of a fundamentally new foreign policy, as well as the world political system as a system of a fair democratic world. A number of ideas and principles of the decree subsequently entered international law.
Regarding agreements, the decree stated that the content of secret agreements was canceled, since in most cases it was aimed at delivering benefits to Russian landowners and capitalists, and at annexations. IN AND. Lenin emphasized more than once that we were talking specifically about secret and predatory agreements. The points on good neighborly and economic relations were not rejected.
However, practice took a slightly different path. On August 26, 1918, a Decree of the Council of People's Commissars was issued on the termination of all agreements with a number of states. At the Genoa Conference of 1922, referring to the French Revolution, the Russian delegation spoke of the basic principle of law, according to which “governments and regimes emerging from the revolution are not obliged to comply with the obligations of overthrown governments.”
A different interpretation of the issue of succession during the revolution was set out in the acts of many states. According to the British government, “according to the recognized principles of international law, the recognition of the Soviet government by Russia automatically brings into force all treaties concluded between the two countries before the Russian Revolution, with the exception of those that have formally expired.”
Quite soon the scale of damage caused to Russian interests by the refusal of treaties became clear. The labor-intensive work of restoring contractual rights begins. A.V. Sabanin, who headed the economic and legal department of the NKID in 1922, wrote that the Soviet state would comply with the basic norms of international law in its international relations and would refer to them in official diplomatic acts.
The note from the USSR Plenipotentiary Representative in China to the local Ministry of Foreign Affairs (1925) contained a demand to consider the USSR Government “as a full-fledged successor to the former Russian government,” and expressed confidence that the other side “is aware of the fact of the complete and comprehensive nature of the continuity of the Soviet government in relation to the former Russian government.” . Such a decisive position is understandable, since the discussion was about Russia’s significant property in China, and above all about the Chinese Eastern Railway (CER).
Already in 1922, the government insisted that “no international acts, once signed with the participation of Russia, can be changed without the same participation of the Russian government.” From the second half of the 20s. XX century The Council of People's Commissars issues decisions recognizing as valid for the USSR a number of multilateral conventions that were once concluded by Russia. A number of multilateral conventions concluded by Russia were tacitly recognized, for example the Hague Conventions of 1899 and 1907. From the very beginning, border treaties were recognized. In subsequent years, the Soviet government relied on them to defend its rights.
It seems that the optimal solution to the problems arising during the social revolution should be sought on the basis of the principles of free consent, good faith and the maximum preservation of international obligations. This is confirmed by the practice of the USSR. As an example, we can point to the 1925 treaty with Germany with a list of treaties that will be considered valid.
Under different conditions and in a different way, the problem of previous treaties was resolved by other socialist states. The General Program of the Chinese People's Political Consultative Conference stated that the PRC government "shall examine the treaties and agreements concluded by the Kuomintang government with foreign governments and, depending on their contents, recognize, annul, revise or renegotiate them." This formula is close to the one that was used by Germany in relation to the GDR treaties. It lacks only the need to resolve issues through agreement with other participants.
As for the European socialist states, they did not raise the issue of succession, trying to preserve contractual relations. The agreements of the previous governments were also valid in their relations with the USSR until they were replaced by new ones. All this gave significant positive results and contributed to the strengthening international positions new socialist states and their protection of their rights and interests.
Succession in relation to state property
The main rules on this issue are contained in the Vienna Convention on the Succession of States in Respect of State Property, State Archives and Public Debts of 1983. These rules apply only to the state property of the predecessor state. The succession regime does not apply to the rights and obligations of individuals and legal entities. State property of the predecessor state is understood as “property, rights and interests which, at the time of the succession of states, belonged to that state according to the internal law of the predecessor state” (Article 8).
Domestic law addresses this issue differently. The widest range of state property is in a socialist state. It includes almost the entire economy, finance, etc. Therefore, the circle of succession is very wide.
The Declaration of Sovereignty of Ukraine in 1990 declared that “all economic, scientific and technical potential created on the territory of Ukraine is the property of its people.” Thus, the laws of the USSR on property rights were crossed out, despite the fact that the Ukrainian SSR continued to remain part of it. The existence of all-Union, common property was recognized only for property outside the borders of Ukraine.
The issue was resolved differently by other republics. The Belarusian SSR declared the land, its subsoil, and other natural resources on the territory of the BSSR to be the property of the people. The Declaration of State Sovereignty of the RSFSR spoke of the people's right to the national wealth of Russia.
In other states, the bulk of state property consists of property used for official purposes, government buildings, communications facilities, museums, military bases, etc.
As a general rule, the transfer of state property is carried out without compensation, unless the parties agree otherwise (Article 11).
Issues of legal succession are most easily resolved when states unite. The property of the uniting states passes to the united state.
For more complex cases, the Vienna Convention specifies mutual agreement as the main way to solve problems of succession and only in the absence of it offers its own rules. When transferring part of the territory of a state, the real estate of the predecessor state, which is the object of succession, passes to the successor state. The same category of movable property of the predecessor state passes to the successor state if it was related to the activities of the predecessor state in relation to the transferred territory (Article 14). Such movable property includes rolling stock railways, airplanes, cars and other vehicles associated with the transferred territory. The corresponding weapons also fall into this category.
The same rules apply in other cases: when separating part of a territory and forming a state on it, as well as when dividing a state. Issues are resolved through special agreements. Thus, in 1993, an Agreement was concluded between the former union republics of the USSR on the division of inventory parks of freight cars and containers of the former Ministry of Railways of the USSR and on their joint use.
In the event of division of a state, the question of succession arises in relation to the movable and immovable property of the predecessor state abroad. Such property passes to the successor states “in fair shares” (Article 18). The possibility of fair compensation is provided.
The CIS countries concluded in 1991 an Agreement on the ownership of the former USSR abroad. By decision of the Council of Heads of State of the Commonwealth of March 20, 1992, it was created special body- Commission on succession in relation to contracts, state archives, state property, debts and assets of the former USSR. The activities of the Commission confirmed that it was impossible to formulate general rules of succession, and it was liquidated. In 1992, an agreement was concluded on the distribution of all property of the former USSR abroad. It determined the percentage shares for each participant, according to which the said property should be distributed. But this Agreement did not solve most of the problems.
For the purpose of legal support for the property of the Russian Federation abroad, the Decree of the President of the Russian Federation of February 8, 1993 “On state property of the former USSR abroad” determined that Russia, as a successor state of the USSR, assumes all rights to the real and movable property of the former USSR located abroad, as well as the fulfillment of all obligations associated with the use of this property. The reaction was immediate. The Ukrainian Foreign Ministry stated that any unilateral decisions to determine its status as a successor to the USSR contradict the norms of international law and lead to a violation of the rights of other states - subjects of the former USSR.
All this indicates that the best way is bilateral agreements on succession, which allow taking into account the specifics of each case. It is no coincidence that their importance is emphasized by the Vienna Conventions on Succession.
If a new independent state is created as a result of decolonization, all real estate of the predecessor state on its territory passes to it. Immovable property belonging to the territory of the new state and located outside its borders passes to the latter if it became the property of its predecessor during the period of colonial dependence of the corresponding territory.
Other immovable property of the predecessor state located outside the given territory, if the given territory took part in its formation, passes to the successor in a share corresponding to the contribution of the territory. “Outside the given territory” means that the same applies to the corresponding property in the territory of the predecessor State. Movable state property associated with the activities of the predecessor state in relation to a given territory passes to the successor state (Article 15).
Practice shows that the optimal way to resolve issues of succession of newly independent states is also through mutual agreements. The practice is quite rich: for example, the Agreements between France and Morocco 1956, between Great Britain and Sierra Leone 1961, between Great Britain and Jamaica 1962.
Succession in relation to state archives
Archives are of great value, and not only for scientific and cultural purposes, but also for the organization of the state, for its well-being. The state represents the unity of past, present and future. The Vienna Convention of 1983 naturally devoted a special part to archives.
The subject of succession is the state archives of the predecessor state. This means the totality of documents of any vintage, produced or acquired by the predecessor, which belong to him according to his internal law and are kept by him. As a general rule, the transfer of archives is not accompanied by compensation (Article 23).
Succession does not concern archives that are located in the territory of the predecessor, but belong to a third state according to the internal law of the predecessor state (Article 24). It seems that archives belonging to third countries in accordance with international law also cannot be the subject of succession. In the event of their transfer, the predecessor state bears international legal responsibility.
These questions are of significant importance for Russia, which houses the archives of several countries captured by Nazi Germany and, after its defeat, taken to the USSR. The fundamentals of the legislation of the Russian Federation on the archival fund of the Russian Federation and archives prohibit the export of documents from state archives. At the same time, it is provided that if the agreement establishes other rules, then the rules of the agreement apply (Article 25). Such agreements are known, for example the Agreement with France on the identification and return of archival documents.
The Convention established the principle of preserving the integrity of state archival funds. This principle was embodied in the Agreement on succession in relation to the state archives of the former USSR, concluded within the CIS in 1992. Based on the principle of integrity and indivisibility of archival funds, participants will not lay claim to funds formed as a result of the activities of the highest state structures of the former Russian empires and the USSR, which are kept “outside their territory” (Article 1).
At the same time, the participants mutually recognized the transfer of state archives to their jurisdiction, including archives of the all-Union level located on their territory (Article 2). Consequently, the division of archives was made according to the simplest criterion - territorial. The principle of the integrity of funds is also interpreted in this light.
When states unite, the archives pass to the united state. For all other cases, practically general ground rules have been established. Part of the archives of the predecessor state, which must be located on the territory of the successor state in the interests of the normal administration of its territory, passes to this successor. Part of the archives that are directly related to the territory of the successor is also transferred.
The predecessor is obliged to provide the successor with information concerning his right to the territory, defining its boundaries, as well as those that are necessary to clarify the meaning of documents from the transferred archive. This important provision was not reflected in the Agreement between the CIS countries, but it seems that it is intended to take into account the goals and principles of the CIS Charter.
Succession in relation to public debts
The Vienna Convention of 1983 concerns only public debts, which include any financial obligations of the predecessor state in relation to another subject of international law, arising in accordance with international law. Outside of this remain significant areas of financial obligations of the state, debts of the state in relation to individuals and legal entities abroad and on the territory of the state. Meanwhile, such debts are also the subject of legal succession.
The basis for solving the problem of the internal debt of the former USSR was determined by a special Agreement in 1992. The participants assumed obligations to repay the state debt of the USSR to the population in amounts proportional to the balance of the debt listed on the balance sheets of the USSR Savings Bank institutions in the territory of each of them.
As for the rest of the debt (to the State Bank of the USSR, the State Insurance of the USSR and other components of the internal debt), it was decided to distribute it based on the corresponding share of each participant in the generated national income and the used volume of capital investments from the Union budget.
As general principle The Vienna Convention adopted the rule: “Succession of states as such does not affect the rights and obligations of creditors” (Article 36). In other words, succession, except in special cases, does not prejudice the rights of those who provided the loan.
For all cases of succession it is established general rule: the debt of the predecessor state passes to the successors in an equitable share, determined on the basis of taking into account the property, rights and interests that pass to the respective successor in connection with the given public debt.
A number of multilateral and bilateral agreements regarding succession to Soviet government debt were concluded between the former Soviet republics. The main one was the Multilateral Treaty on the Succession of External Public Debt and Assets of the USSR in 1991, which defined the concept of external public debt and assets. However, it was not possible to solve the problem based on the proportional distribution of debt.
The unsettled nature of the problem had a negative impact on the development of financial relations with foreign states and international organizations. Based on this, Russia proposed a radical solution in 1993, based on the principles of which it was proposed to conclude bilateral agreements. In the Decree of the Government of the Russian Federation of May 17, 1993, these principles are set out as follows. The shares of the former Soviet republics are determined taking into account the actual number of states that signed the 1991 Treaty. Consequently, the share of the debt of non-participating states is redistributed among the participants. The republics transfer to Russia the obligation to pay the share of these states. In order to compensate, the republics transfer to Russia their shares in the assets of the former USSR.
A special regime is established by the Vienna Convention for the new independent state formed as a result of decolonization. No public debt of the predecessor state is transferred to it. A different order can only be established by mutual agreement, concluded taking into account the connection between the debt of the predecessor relating to his activities in the territory that is the object of succession, and the property, rights and interests that pass to the new state.
It should be noted that a new independent state does not acquire its rights to territory as a result of succession. You cannot transfer sovereign rights without having them. No one can transfer more rights than he himself has (nemo plus juris transfere potest, quam ipse habet). Meanwhile, according to the Convention it turns out exactly like this: “Territory is the object of legal succession.” In fact, sovereignty over territory arises from the exercise of the right to self-determination.
1. The concept of international legal personality.
2. The concept and types of subjects of international law.
3. States are the main subjects of international law. Legal personality of other participants in international communication.
4. Institute of recognition in international law.
5. Succession of states. Continuity of Ukraine regarding the rights and obligations of the USSR.
The concept of international legal personality.
International legal personality is the main feature of a subject of public international law, it turns out, as a rule, to have rights and obligations established by customary and contractual norms of international law.
The dominant criteria of international legal personality have changed over different periods: in the past, it was believed that one of the important elements was the possibility of declaring and waging war against another subject of international law. Now it is the ability to have rights and obligations, the ability to exercise them, a real reflection of which is the ability to participate in international treaties on equal rights with other states..
International legal personality includes the following elements:
1) international legal capacity;
2) international legal capacity;
3) international delinquency;
4) participation in international rule-making.
International legal capacity- this is the ability of a subject of international law to have subjective rights and bear legal obligations. States have this ability from the moment of their creation; nations fighting for independence - from the moment of their recognition; international intergovernmental organizations - from the moment the documents on their foundation enter into force; individuals.
The concept of international legal capacity includes the independent exercise by subjects of international law of their rights and obligations. International tortiousness of subjects of international law means their ability to bear legal responsibility for committed offenses.
Subjects of international law have general, sectoral and special legal personality.
General legal personality is the ability of certain persons ipso facto (by virtue of the fact of their existence) to act as a subject of international law. It is possessed only by sovereign states and nations fighting for independence.
Sectoral legal personality is the ability of subjects of international law to act as participants in a certain area of interstate relations (for example, international intergovernmental organizations).
Special legal personality is the ability of individuals to be participants only in a certain range of relations within a particular branch of international law. It is owned by individuals and international non-governmental organizations.
The law of international legal personality also covers such institutions as recognition and succession.
So, we can conclude that the concept of international legal personality means the ability to be a subject of international law. its volume is different types subjects differs significantly.
Let us highlight some international legal documents that define legal personality. For example, the Act of Recognition and Guarantee of the Permanent Neutrality of Switzerland and the Inviolability of its Territory of 1815. It, in particular, notes that the states that signed it (Austria, France, Great Britain, Russia, Portugal, Prussia) “solemnly recognize the permanent neutrality of Switzerland and guarantee for the integrity and inviolability of its possessions within the new borders, specified by the act Congress of Vienna ".
The 1990 Treaty on the final settlement in relation to Germany, that is, on the creation of a United Germany within the Federal Republic of Germany, the German Democratic Republic and West Berlin. In Art. 1 of this treaty states that “The United Germany acquires full sovereignty over its internal and external affairs.”
The International Court of Justice's Opinion on 11 April 1949 on damages caused in the service of the United Nations noted that "subjects of law in a legal system need not be identical as to their nature and scope of rights." And where the judgment in a particular situation concerned the legal personality of the UN, it, in fact, has a general meaning.
Prospects for the development of international legal personality
Modern international relations are characterized by increased interaction between states, their bodies, international organizations, as well as individuals and legal entities in various political, economic, cultural and other relations. At the same time, it is obvious that the national doctrine of international law on international legal personality does not correspond to modern realities. As is known, international law is not an amorphous formation, but must change depending on the changing situation in the world. This opinion is based on the assertion that the main goal of international law and in accordance with its doctrine is to ensure peace and international security.
It is clear that further development International economic relations are impossible without the active participation of transnational corporations, individuals and legal entities. There is also no doubt that all these subjects must have international trade equal rights. The current practice, when states gain advantages under the guise of their sovereignty, does not meet the interests of the world community. The manifestation of such practices is the advantage of states over individuals in international bodies justice. The trend towards increasing participation of individuals and legal entities in international economic relations will prevail. Therefore, it would be appropriate to provide states, individuals and legal entities with equal procedural rights.
A study of domestic literature on international law shows that the doctrine has gone from a categorical denial of the international legal personality of international organizations to the recognition of them as subjects of international law. The situation with individuals becomes similar. International law does not belong to the exact sciences and its development is carried out, inter alia, on the basis of the doctrines of the most qualified specialists in public law (Article 38 of the Statute of the International Court of Justice). An analysis of modern literature on international law shows that a number of reputable international lawyers recognize partial international legal personality for individuals and legal entities.
The desire to limit the circle of subjects of international law is a consequence of totalitarian thinking. According to some researchers, the long, uncertain situation of private international law and the inconclusive disputes between “monists” and “dualists” did not contribute to the proper development of this science.
We hope that in the future the activities of subjects in various branches of international law will intensify.
The issue of international legal personality from a methodological point of view should be considered in conjunction with questions about the concept of international relations, their classification and legal systems governing such relations.
International relations scholars have repeatedly characterized the system of international relations from various angles. The definition of the very concept of international relations does not seem to require extensive discussion.
One can agree with the definition given by V.V. Kravchenko, who views international relations in a broad sense as universal connection participants in international communication, as a “manifestation of social life” and the conditionality of relationships, determined by the laws of development, coexistence, and the requirements of the international community and community life. In a narrow sense - as relations of direct contacts, specific connections and interaction between participants in international communication.93
Regarding the classification of international relations, different opinions have been expressed. So, E.T. Usenko distinguishes relations between states, including states and international organizations (and the relations of the latter among themselves), and relations that do not
having an interstate nature (between individuals,
enterprises, public organizations, in batches, etc.).
T.N. Neshataeva94 divides international relations into interstate (intergovernmental) relations and international relations of a non-interstate nature. The latter, in turn, break down into international non-interstate relations of a power nature and international non-power relations.
It also seems correct to divide relations into intergovernmental and international relations that are not of an intergovernmental nature. Despite the fact that the issue of subjects of international law will be given considerable space below, it should already be noted that active or law-creating subjects participate in intergovernmental relations. That is, those who can create norms of international law by their own will. They have the sovereign power of states or power directly derived from the power of states, and because of this they are recognized as sovereign subjects of international law. All other international relations relate to non-intergovernmental relations, which, however, does not prevent them from being classified. Such relations arise between a significant number of passive subjects of international law, and active subjects can also participate in them (but not among themselves). Intergovernmental relations can be classified in the same way. It is clear that within their framework it is easy to distinguish, for example, interstate relations and relations between international organizations.
It seems that international relations can also be divided into relations that arise between powerful (or active) subjects and all other relations. It is important that in the course of the first relationship norms of international law will be born, including those governing international relations of other subjects of international law. In the course of non-intergovernmental relations, only law enforcement will take place, even if on the one hand a subject endowed with state power participates in them.
The basic division of relations into interstate and non-interstate seems less successful, since in this case the second group includes, for example, relations between states and international organizations, as well as only between the latter, during which the creation of norms of international law can occur. This will qualitatively distinguish them from all other relations included in the category of non-interstate ones. The resulting intra-group heterogeneity of such a fundamental nature is an unfortunate result of such a classification.
The division of relations on other grounds, such as, for example, according to the circle of subjects of action (between two subjects, several, subjects defined by a region) has, of course, every right to exist, but is rather of a more classificatory nature and does not reveal qualitative differences.
International relations, which are a complex heterogeneous system, are regulated by legal norms, which, in turn, form a complex structured system.
T.N. Neshataeva identifies three groups of international legal norms95: 1) norms of public international law, created by coordinating the wills (positions) of states and intergovernmental organizations, enshrined in international treaties and customs; 2) norms of private international law governing international relations of a non-power nature of individuals and legal entities; - 3) norms of “domestic” law, international organizations governing international interstate relations of a power nature.
It is clear that the complex4 heterogeneous1 system of international relations, and the equally complex system of legal norms governing it cannot be unambiguously perceived by all scientists. Equally debatable is the question of what law governs this system of international relations.
It is generally accepted that international power relations are regulated by public international law (IPL) - and international non-power relations are governed by international private law (PIL), while the nature of PIL is controversial: either it is a “separate, third system, along with the system.” international public and ^ system, domestic law; or private private enterprise is included in the system, internal; national law, or c. the system of international law in the broad sense.
The first position was expressed by I.S. Peretersky and S.B. Krylov. Its essence is that although private international law studies civil law relations, it is not. means that private international law is only often civil law: a specific difference between civil law relations included in private international law is that private international law studies a special group of civil law relations, namely those that have international character;96
The civilistic view of the nature of private international law is based on the understanding of international private law as a set of conflict of laws rules of the internal law of states.. It is clear; what is this approach to content?
PIL logically led researchers to the conclusion that private international law was included in the system of national law.
Thus, exploring international economic law, M.M. Boguslavsky proceeds from the existence of two systems, international and national law, the latter includes international private law.97
A.L. Makovsky98 adheres to the same position and argues for it with the following provisions: relations regulated by private law, although they have specifics, are similar to other civil legal relations; the special methods of regulation inherent in private law must be combined with the use of the method of equality of parties to a civil legal relationship; on the significant commonality of both the subject and the method of regulating property relations, complicated by a foreign element, and without it, all the conflict of laws regulation of the former is based, subordinating them to the norms of general civil law; This is also the basis for the peculiar “interchangeability” of private law and general civil law, the absence of an absolutely clear dividing line between them; the main conflict of laws rules, rules on autonomy of will, public order are contained in sectoral acts of civil legislation.
In order to criticize the above positions, it can be noted that their authors unreasonably narrow the understanding of private international law. As a result, private law is either only conflict of laws rules, or a completely abstract and unsystematic category, difficult to distinguish in all the diversity of rules and institutions of private law. It can be noted that the modern content of private international law is much broader than such a component as conflict of laws rules; reducing the entire system of private international law to it will contradict the actual state of affairs. Supporters of the civil concept do not pay attention to the fact that, thanks to the process of legal integration, today many issues traditionally related to the sphere of private law have received legal regulation at the level of acts of international law (these are issues of bill circulation, and maritime liens and mortgages, the purchase and sale of goods , leasing, transportation and much more).
Supporters of the international approach usually recognize international private law as an independent branch of international law in a broad sense.
Also P.E. Kazansky argued that “international civil and international public law are included, as parts, in a broader understanding of simple international law, just as Russian civil and Russian public law are included, as parts, in the concept of the law of the Russian Empire.”99
In the understanding of S.B. Krylov, public international law and private international law are parts of international law, international private law forms a branch of international law and should be included in international law.100 A.M. shares this position. Ladyzhensky, clarifying that international private law is a branch of international law, and not international law.101
S.A. Malinin notes that “in the system of international law (in the broad sense of the word) ... there are objectively two main (independent) branches of law: 1) public international law; 2) private international law.”102
Indeed, according to many legal scholars, MPP and PIL form independent branches of law that are part of one system of legal norms - international law in the broad sense of the word. V.G. rightly defines international private law as a branch of general international law. Khrabskov, believing that modern private international law is a set of international treaty and customary rules governing substantive, conflict of laws and procedural issues in this area.103 The same position is held by S.M. Kudryashov: “Given that the true content of international private law consists of international treaties, this science should take its rightful place as an independent branch of international law in the broad sense.”104
The definition of private international law as an area of international law is found in studies of problems of legal theory.Y) This thesis was also voiced at the All-Russian Scientific and Practical Conference on the problems of interaction between the Russian legal system and international law, where, in particular, the use of the term “international law” was discussed both in the broad sense of the word (law that covers the entire field of international relations) and in the narrow sense (law governing international power and interstate relations).105
There are also other approaches to the legal nature of international private law. For example, T.P. considers private international law as a multi-system complex. Neshataeva. However, she also speaks out for the inclusion of international law in international law in a broad sense: “The multi-level interpretation of law as a socio-legal phenomenon with a genetically inherent structure (private-public) inevitably leads to the conclusion that the existence of such a complex as international law is possible in a broad sense, including private international law, public international law and the law of international organizations.”106
It can be repeated that the approach to international law from the standpoint of the exclusively civilistic nature of this institution seems one-sided and does not take into account the diversity of international relations and the widespread regulation of non-interstate relations by acts of international law today.107 In this regard, the argument regarding the fundamental civilistic nature of such relations seems irrelevant in light of the increasing pace global integration of legal regulation. Thus, the statement about the inclusion of international private law in international law in a broad sense seems to be the most correct.
There are attempts to identify, in addition to international and national (intrastate), another type of law. For example, V.M. Shumilov proposes to recognize transnational law - a synthetic legal sphere in which both subjects of international law and subjects of domestic law interact108. The range of issues subject to regulation within the framework of transnational law, in his opinion, is not limited only to economic topics; here we should add, in particular, administrative and legal issues, procedural, conflict of laws rules, etc. This view seems to better meet the needs of economics or any other science, but hardly meets the requirements of a systemic legal approach. The creation of a new, “synthetic” legal system that does not take into account differences in the subjects and methods of legal regulation seems unpromising for the purposes of in-depth legal analysis in the field of international relations.
Having considered various points view of the systems of law governing international relations, we can summarize: -
International relations are divided into intergovernmental relations and relations that are not of an intergovernmental nature. Intergovernmental relations are regulated only by international law. Non-intergovernmental international relations are also regulated by international law, and the volume of such regulation is constantly increasing. Historically, the first group of international relations was subject to legal regulation in the first place. International legal regulation of international non-intergovernmental relations is a product of an even higher level of development of civilization. Increasing the scope of shared responsibility of states through the creation of international law is a process that we have been witnessing for decades. A striking example of this is the international legal protection of human rights. Currently, this issue has almost completely moved into the sphere of regulation of international law. Thus, international law also regulates international non-intergovernmental relations; -
international law can be divided into public and private law, and such a division can be based on the division of relations into intergovernmental and non-intergovernmental, but this cannot lead to any conclusions that refute the indicated basic premises. International law is the law that is born as a result of coordination of the wills of the powerful (active) subjects of international law. Therefore, the main source of international law is quite rightly called an international treaty. The division of international law into private and public cannot change anything in this state of affairs. The very nature of law and its sources will remain unchanged, so we can agree with those who consider MG1P and international private law to be branches of international law. The unified systematic nature of international law is determined by the systematic nature of the object of legal regulation and the source of legal regulation, and due to this, it is not subject to any fragmentation or splitting;
In addition to the above, the following can be noted in relation to the civil approach to private international law. The basis for the inclusion of private law in the system of national law, as a rule, is the reduction of private law only to conflict of laws rules (which cannot be agreed with due to the excessive limitations of such an approach, as well as the characterization of the corresponding social relations as civil relations, civil law in nature. However, it is impossible forget that relations regulated by international private law are international, as they say, they are “burdened" with a foreign or international element. This indicates the extreme heterogeneity of these relations and those traditionally regulated by international law. Moreover, due to the specific methods of legal regulation used in PIL, such relations will not always be regulated by national law, foreign legislation will often be subject to application, and even more often - international acts.As a result, the inclusion of PIL in the system of national law is not supported by either the homogeneity of the regulated relations, or the homogeneity of the regulator itself. It would be more correct to pay attention precisely to the source of legal regulation and, on this basis, to determine the system of law and the relations regulated by it. To confirm the correctness of this approach, we can give an example directly from the sphere of civil law discussions. Thus, in civil law, the question of the sectoral affiliation of property rights, especially state property rights, raises great controversy. Two approaches have been put forward. First, the rules on property rights are civil law, and therefore are entirely included in civil law as a branch of law. Other scientists defend the state-legal nature of at least those norms that
constitute the institution of state property rights. This dispute is similar to the dispute regarding international private law. How is the dispute over property rights resolved in civil law science today? It should be recognized that the position based on the supposedly uniform civil law nature of all property relations did not prevail* It was the specificity of the source of legal regulation that did not allow the adoption of such an approach: “When resolving this issue, one cannot discount the fact that the most important rules on property rights are concentrated in Constitution of the Russian Federation. ...The reference to the fact that the specified norms of the Constitution, by their sectoral affiliation, are civil law, is unconvincing. If we follow this argument, then a significant part of the norms of the Constitution would have to be taken away into branch apartments and little would remain of it as an integral and, moreover, fundamental act of the entire system of Russian law.”109 The authors of the textbook on civil law edited by Sukhanov E.A.110 Thus, the issue of the ownership of international private partnership should also be resolved taking into account the source of legal regulation, and not on the basis of attempts to determine the sectoral affiliation of relations, and according to them - norms. It should be taken into account that the rules governing international relations are concentrated, as a rule, in international treaties. By analogy with the words of Yu.K. Tolstoy, we can say that the reference to the fact that these norms, by their sectoral affiliation, are civil law, is unconvincing.
To summarize, it should be noted once again that international law is independent system, the basis of the allocation, which should first of all be named as the source of legal regulation. It can highlight branches (LLP and PIL), but only as parts of a single whole and without any damage to the specified unified system of international law itself.
The wide diversity and systematicity of international relations and the norms of international law governing them presuppose the diversity and systematicity of subjects participating in international legal relations. Indeed, the variety of subjects of international communication is so great that it makes it difficult to list them exhaustively. It is clear that the list of subjects of international law, or more precisely, participants in international power relations, is significantly narrower.
The traditional subjects of international law are states as the main and primary subjects (various state-like entities are also distinguished), international organizations and nations fighting for self-determination. A.N. Stoyanov noted more than a century ago that only states and governments can be subjects of international law, and private and legal entities “participate in cosmopolitan communication, but they cannot be considered, in the strict sense of the word, subjects of international law, although the latter protects their rights and
interests."
As an illustration of the traditional approach to defining subjects of international law, one can cite the position of G.I. Tunkin, who distinguished subjects (actors) of the international system and subjects of international law. International law, according to this author, regulates directly or indirectly the relations between all subjects of the international system. However, the rules of international law are directly addressed only to its subjects; the relations of other subjects of the international system are regulated by international law through states.111
The position of S.M. seems significantly less conservative. Kudryashov, who admits that in in some cases legal relations between individuals and legal entities are regulated by the norms of international law: “it is logical to assume that these entities acquire temporary international legal personality for the period of their participation in a specific international legal relationship.”40
As you can see, the traditional approach to defining subjects of international law is not shared by all scientists. Also, V.V. Kravchenko believes that the very practice of international reality, many facts and examples “do not always agree with the traditional theoretical concepts of the science of international law and do not fit into the simple scheme of dividing all participants in international communication into “subjects” and “non-subjects” of international law ".m The authors of the textbook “International Law,” edited by G.V. Ignatenko and O.I. Tiunov, note: “The current situation, marked by significant changes in the very structure of international relations and, accordingly, in the subject of international legal regulation, has prompted the theory of international law to changing views when assessing the concept and types of subjects of international law. There is nothing unexpected or unnatural in the evolution of international relations themselves and the change in approach to their subjects.”112 One cannot but agree with J. Brownlie, who also, in relation to international law, notes that “absolute rigor in the question of the types of permissible subjects of law does not
corresponds to reality."
At various times, international lawyers have made attempts to classify the subjects of international law. For example, the following classification of subjects was proposed by J. Brownlie113: -
established subjects of international law, including: states; political entities, from a legal point of view, approaching states; condominiums; internationalized territories; international organizations; state bodies; bodies of international organizations; -
subjects with a special type of legal personality: non-self-governing peoples; emerging states; legal constructions; belligerents and rebels; education of a special kind; individuals; -
controversial cases: corporations; public international institutions. A. Ferdross, understanding the subjects of international law as persons,
“whose behavior is regulated directly by the international legal order”114, identified the following categories of these subjects: a) subjects of rights and subjects of duties; b) active and passive subjects of international law; c) permanent and temporary subjects of international law; d) original and later adopted subjects of international law; f) subjects of international law with and without self-government: f) subjects of international law with different legal and legal capacity; g) subjects of international law that exist on the basis of general norms of international law, and subjects recognized only by foreign states; h) subjects of public international law and subjects of private international law.
Ignatenko and O.I. Tiunova “there are sufficient grounds for the distinction in the international legal system between law-creating subjects and law-enforcing subjects.”116 They differentiate between: 1) law-creating and law-enforcing subjects; 2) subjects are only law-enforcers, but do not have rule-making ability.
Thus, in the scientific literature, in addition to the traditional ones, the following subjects are distinguished: temporary and permanent international commissions, committees, intergovernmental conferences, meetings of authorized parties to international treaties, groups of experts, international arbitrations, individuals, international economic organizations, etc. It is important to note that the identification of these new types of subjects of international law goes beyond classical point views on this issue.
The expansion of the number of subjects of international law challenges the researcher main question: what is the basic criterion of international legal personality, the criterion on the basis of which this or that person can be classified as a subject of international law, regardless of the specific type of subject? Only by answering this question can we turn to solving the next problem - the classification of subjects and the determination of secondary criteria necessary to qualify a subject as one type or another.
For a long time, the classical theory of legal personality dominated the doctrine of international law, and it is still supported by many scientists to this day. The most important feature of a subject of international law, according to this theory, is that it has the function of creating norms of international law. Accordingly, the inapplicability of the concept was justified general theory on the subject of law to international law. Gak, E.T. Ussnko believes that the theory of law that has developed in Russia and a number of other countries is based on sectoral and inter-branch sciences of domestic law, which partly explains the fact that “its conclusions are in many ways not suitable for international legal
Scientists who do not agree with the application of the provisions of the general theory of law to international law recognize the necessary criterion
legal personality, the ability to participate in international law-making.118 For example, S.A. Malinin and T.M. Kovalsva write: “if the ability to participate in legal relations, to have rights and responsibilities established by legal norms, the ability to independently exercise these rights and responsibilities is exhausted 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).”119 They name other independent features: 1) the ability to participate in the process of international law-making; 2) the ability to independently (individually or collectively) ensure compliance with the created standards.
According to P.M. Biryukov, international legal personality presupposes that the subject of legal relations has three main characteristics: legitimacy of the entity, possession of rights and obligations arising from international legal norms, international contractual legal capacity.115
A number of authors highlight this quality of a subject of international law as an independent international legal status. For example, V.V. Nikonorov believes that the most important quality of any subject of international law is that it is not under anyone’s jurisdiction, has no authority over it. political power, occupies, from a legal point of view, a position independent from other subjects of international law.116
The book “International Legal Personality (Some Theoretical Issues)” analyzes numerous definitions of the subject of international law, resulting in the following as its most general properties: 1) the subject of international law exercises rights and obligations on the basis of international law; 2) the subject is a party in a relationship regulated by international law; 3) the subject has the ability to participate in the creation of norms of international law; 4) has an independent international legal status.117
Of course, such a condition as the ability to participate in international law-making, which determines an independent international legal status, significantly limits the circle of participants in international relations who can be subjects of international law. However, given the new realities, it seems little justified to use such a narrow approach to determining international legal personality. Today we are increasingly faced with situations where certain phenomena of international life do not fit into a narrow framework classical theory. Life does not stand still: new forms appear international cooperation, borders are being erased, integration processes are attracting an increasing number of participants to solving international problems, etc. Against this background, the discrepancy between traditional approaches and rapidly changing life will increase and widen the gap between the theory of international law and the actual practice of international relations.
Taking into account the above, it seems correct to use a general theoretical definition of a subject of law in international law. According to the general theory of law, “holders of rights and bearers of duties are called subjects of law.”118 According to S.F. Kechskian, the term “subject of law” is used “to designate both a person capable of becoming a bearer of rights and obligations, and a person already participating in a legal relationship,” he calls for a subject of law to be understood as: a) a person participating or b) able to participate in a legal relationship. 15"1 P.O. Khalfina, having analyzed the existing views in the theory of state and law, confirms the prevalence of the opinion that in “the concept of a subject of law in its traditional understanding, two main characteristics merge: the ability to participate in various legal relations and real participation in them.”119
The following authors believe that the science of international law should operate with a system of general legal categories and concepts: N.A. Ushakov120, D.I. Feldman, G.I. Kurdyukov121, V.V. Kravchenko122, G.V. Velyaminov123, N.V. Zakharova124, Yu.M. Kolosov, V.I. Kuznetsov125, S.M. Kudryashov126, Ya.S. Kozheurov127, D.G. Nurumov128 and others. Let us present a number of definitions of the subject of international law, based on the achievements of the general theory of law.
ON THE. Ushakov wrote: “a subject of law is a person capable of being a participant in a legal relationship, capable of acting as a bearer of rights and obligations... Subjects of international law are parties participating or capable of participating in a relationship settled
the following definition: “A subject of international law is a bearer
international rights and obligations arising in accordance with
general rules of international law or regulations
international legal acts. This is also a person (in a collective sense),
whose conduct is directly regulated by international law and which
enters or may enter into international public (intergovernmental) 166
legal relations."
Y.S. Kozheurov in his dissertation research defines a subject of international law as a person “capable, by virtue of the norms of international law, of submitting to its regulatory influence, which is expressed in the person’s ability to have international subjective rights and bear international subjective responsibilities, which at the same time means the person’s ability to participate in international legal relations.”130
The “Course of International Law” gives the following definition: “subjects of international law are parties participating or capable of participating in a relationship regulated by the norms of international law.”131
Thus, with all the specific features of international law, the characteristics of a subject of international law are fundamentally the same as in the general theory of law: the ability to participate or real participation in social relations regulated by international legal norms, that is, in international legal relations. Subjects of international law, therefore, are the parties, persons participating or capable of participating in international relations. In accordance with the stated position, all participants in international relations who can be bearers of international rights and obligations, including individuals, legal entities, etc., can be recognized as subjects of international law.
Such a definition of a subject of international law should not and cannot change some of the fundamentals of international law; it fully takes into account international relations existing today, and its application is intended to fill a number of gaps in international legal regulation. Thus, it is quite obvious that states are special, primary, main subjects of international law. It is obvious that states cannot be placed on a par with other subjects of international law, if only because of their inherent sovereignty and the ability to create norms of international law. However, it is worth pointing out that states are not the only subjects of law under the domestic legislation of countries, and the public function of states has not suffered from this. The status of states in international law will not suffer in any way, even if they are far from being its only subjects.
The special position in international law of states as primary and main subjects should be reflected already at the first level of classification of subjects. First of all, all subjects of international law can be divided into active and passive. The categories of active and passive subjects of international law are highlighted, in particular, by A. Ferdross, he writes: “Among the subjects of international law, those are distinguished who are not only endowed by international law with rights and obligations, but who themselves have the authority to directly participate in the creation of international law. Such an active position is, in principle, occupied only by sovereign states, some associations of states, and partly also Catholic Church. At the same time, the remaining subjects are only passive recipients of international legal norms established by active members of the community of states.”132 In fact, a similar division was proposed by G. Kelsen, who divided the subjects of international law into subjects of competence and subjects of legal power. The latter, unlike the subjects of powers, simultaneously created a legal norm, implemented it and applied legal sanctions.133 A similar division
subjects of international law were also proposed by other authors.
It seems correct that active subjects are vehicles that have both a law-creating and law-enforcement function. These include primary subjects - states (state-like entities and nations fighting for self-determination) and derivatives - international (intergovernmental) organizations.
States are subjects of international law ipso facto. They acquire this property from the moment of its emergence and regardless of the will of other entities already existing on 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 other subjects, are “primary” subjects (they are often called “typical”, “ordinary”, “basic”, “original”).
International organizations can be called derivative entities due to the fact that they were originally created, and in most cases are created today, as a result of the corresponding expression of the will of the primary active entities - states. The international legal personality of international organizations follows from those basic features that characterize any international organization. Such features are not specified in international legal acts, but they are considered quite fully in international legal studies. Thus, Western scientists identify three main features of an international organization: a) the contractual basis of the organization, then the network of the presence of an international agreement of states on the creation of an organization, defining its functions and powers; b) the presence of permanent organs; c) the subordination of its establishment and activities to international law.134 The Russian doctrine somewhat expands such conclusions into five components: a) contractual basis; b) the presence of certain goals; c) appropriate organizational structure; d) independent rights and obligations; e) establishment in accordance with international law.135
Passive subjects, unlike active ones, do not have the opportunity to create norms of international law; they can only apply them, be subjects of international rights and obligations. Quite often such subjects are called only law enforcement136 or non-powerful. 11.V. Zakharova calls such subjects non-legal, special.137
According to Ya.S. Kozheurova, “the right to conclude international treaties is only a manifestation, albeit in many cases very important, but only a manifestation of international legal personality, and not its basis. If a person has the right to participate in the development of norms of international law, we can confidently conclude that before us is a subject of international law, but this does not mean that any subject of international law must necessarily be able to create international law.”138 Agreeing with this opinion, It should be emphasized that passive subjects who do not have the ability to create norms of international law must necessarily have the opportunity to apply them, only then will they be subjects of international law.
Passive subjects of international law will include all other subjects that do not fall into the active category. Moreover, the list of passive subjects can hardly be closed. It seems that this particular category of subjects will be replenished with new examples as international relations develop. We must agree with the opinion of 11.V. Zakharova is that “the circle of such entities, due to the omnipotence of the state, is not limited... Several thousand such entities operating in the international arena are required to comply with a number of regulations arising from generally accepted principles and norms of international law: the activities of organizations should not contradict the interests of international peace and security, it is unlawful to interfere in the internal affairs of states.”1"7
E.H. Arechaga, justifying the possibility of creating subjects classified as passive, wrote: “there is nothing in the very structure of international law that would imply a state monopoly on the possession of international legal personality; they can, if they wish, by agreement among themselves, create other subjects of international law. To assert... that only states have rights and responsibilities in the sphere of international relations would be to deny them such an opportunity. There are no rules in international law that would impose such restrictions on the freedom of their
action."
JI. Oppengsheim believed that “... although the normal subjects of international law are states, they can regard individuals and other persons as directly endowed with international rights and obligations and, within these limits, make them subjects of international law.”139
Today, passive entities include international economic organizations, individuals, some international non-governmental organizations, most intergovernmental conferences, committees, groups of experts (so-called para-organizations), etc.
First of all, two groups of passive subjects should be distinguished: individuals and institutional entities. We should proceed from the position that the quality of legal personality is acquired regardless of the larger or smaller range of legal relations in which a given subject participates. As N.A. rightly noted. Ushakov, “the existence of one legal relationship in which a given person participates or may participate is sufficient for it to thereby acquire the quality of legal personality.”140 S.V. Chernichenko emphasizes that “the number of rights and obligations does not affect the quality of legal personality, it only determines the boundaries within which a subject of law can enter into legal relations, become a subject of legal relations.”141 In this case, when carrying out the classification, the goal is to identify common features and features passive subjects of international law and determine the place of powerless interstate institutional formations and international economic organizations.
The primary passive subject can be considered the individual. “As you know, a natural subject of law is a person. All other subjects are from this position legal fictions, both created by law and not existing outside of law.... In this case, the formation that arose on the basis
law, is already a subject of law.” The individual receives the right to participate in international relations on the basis of international norms; accepted by active subjects of law, and does not have power.
The second group of passive subjects of international law should include institutional entities. They are created on the basis of international law or are subsequently endowed with international rights and obligations by government entities and have a developed institutional mechanism.
G.V. Velyaminov, examining the criteria for the legal personality of international organizations, comes to the conclusion that “the only practically applicable criterion for the legal personality of an international organization seems to be the presence of the organization’s rights and obligations exercised at the international level. Non-formal recognition of legal personality, about which nothing is said in statutory and similar documents, predetermines the ability to have certain rights (bear responsibilities). On the contrary, we have to proceed from the opposite: if an organization has international rights and obligations, it must
be considered as a subject of law and a bearer of legal personality.”
Without generally objecting to this approach, we must admit that the formal criterion of legal personality, namely: the formal granting of rights under international law, the formal granting of rights attested in an agreement or custom by at least two law-creating subjects of international law, is one of the main when defining an institutional passive subject of international law. Types of such formal vesting of rights are the creation of a collective entity based on the rule of international law or the vesting of rights by government entities in the future.
So, institutional passive subjects are of two main types: created based norms of international law by powerful subjects (they, by the very fact of their “birth”, become subjects of international law, are initially involved in international communication) and created by other subjects (that is, not created initially by international law), but subsequently endowed with international rights and responsibilities. It should be noted that this criterion is by no means artificial, existing only for classification purposes. The basis of the criterion of private or public expression of will when creating an institutional entity is the immanent difference between public and private interests.
The basis of private will is private, personal interest. The expression of the will of the state is based on public interest. The will of the state is primarily aimed at the implementation and protection of sovereign rights. The vectors of interests of individuals and states are in different directions. States, participating in the creation of certain entities, proceed from state interests. Let's take, for example, a modern state operating on the principles of a market economy. Such a state is recognized as an economic entity, since it can and sometimes must enter into property relations in order to carry out its tasks and functions (ensuring the economic independence and security of the state, effective use of state property, development of large international investment projects in knowledge-intensive fields, development of fundamental scientific research, etc.). In other words, the state carries out not only lawmaking, control, supervision, justice, etc. It can carry out economic activities both directly and participate in economic turnover indirectly, by creating other entities for these purposes: state unitary enterprises, joint stock companies, international economic organizations, intergovernmental organizations with a highly developed operational function, etc.
However, in these powers, states are not identical to private entities. The state cannot carry out profit-generating activities just for the sake of that profit itself. Making profit is not and cannot be the goal of a state that exists to satisfy the needs of society. The modern state participates in economic turnover only when this is due to its goals and objectives, namely in sovereign areas, in those areas in which the state’s participation is directly caused by the inability of the state to leave this area and transfer the solution of these issues to private entities. The state also retains its participation in those projects that, being in the initial stage of their development, cannot continue to develop without state support. As a typical example, we can mention the participation of states in the creation of joint economic organizations in the field of nuclear energy: IChO Interatominstrument and the URENCO consortium. Thus, the criterion of private or public interests underlying the creation of this or that institutional entity cannot be considered formal. It allows us to see deep differences between different groups of powerless international institutions.
In conclusion, it must be emphasized once again that this work does not aim to provide the most detailed list of subjects of international law. The proposed classification can be considered only as one of the possible classifications of the ever-expanding Kpvi-a of subjects participating in international relations. At the same time, it seems that, along with the thesis about the identity of the basic criterion of legal personality in international law and in the general theory of law, the proposed division of subjects into active and passive is of significant methodological value for the science of international law, which will allow reconciling the doctrine with the modern reality of international relations .
As we know, a sovereign state is the main subject of international law. By virtue of their sovereign power, states create and apply international legal norms. The concept of a state in international law has its own specifics1. The main thing is that, being the bearer of sovereignty, the state represents the country in international relations and has the ability to exercise international rights and obligations.
In international legal literature, the concept of state has long been used, representing the unity of three elements - sovereign power, population, territory. This clear concept is also used in international practice.
The Inter-American Convention on the Rights and Duties of States of 1933 established the following criteria for a state as a subject of international law:
resident population;
certain territory;
power;
the ability to enter into relations with other states (Article 1).
These provisions have been confirmed more than once in subsequent international practice.
Other definitions of the state are also known in the literature. Polish professor L. Antonovich believes that “a state is a sovereign geopolitical entity that recognizes international law”2. According to the German professor G. Mosler, “the state, in the aspect of the international legal order, can be defined as an organized social entity, which at each stage of the historical process is the highest public authority, having equality with all other similar entities”3.
The state is a necessary form of organization of the population to participate in the international community, to represent and protect its interests. It concentrates under its control the bulk of connections between other participants in international relations, national entities, individuals and legal entities.
Scientists, and sometimes politicians, express the opinion that the role of the sovereign state in international relations is declining. At the same time, they refer to the strengthening of the role of international organizations and the international recognition of human rights. There is no doubt about the growing importance of organizations, but at the same time we should not forget that they are created by states and are designed to serve their interests.
As UN Secretary-General, B. Boutros Ghali stated that the experience of this Organization confirms “the importance and indispensability of the state as the main subject of the international community”1. As for the international recognition of human rights, as has been noted more than once, this in no way affects the international legal status and role of the state.
Leading British lawyer J. Brownlie writes: “International law is at its core the law between states, and this remains true despite the emergence of various international organizations and the importance of human rights standards”2.
In justifying the thesis about the decline in the importance of the state, some also refer to the growing influence of transnational corporations on international relations.
The famous American lawyer O. Schachter, referring in particular to the power of transnational corporations, argues that currently “national states are undergoing changes in their role and power, which affect their fundamental legal positions in the international order. This is not only a statement of a decrease in their power, but also the fact that many, for various reasons, consider such a decrease desirable”3.
Hardly anyone will dispute the growing role of transnational corporations in the global economy. Relying on their economic power, they influence the policies of states, including international ones. However, this influence is exercised through states and does not affect their legal status. Moreover, such views do not correspond to trends in the development of management of both the global and national economies. In both cases, the role of states is clearly increasing. Therefore, many authoritative scientists rightly believe that there is no reason to expect a decrease in the importance of the state in the foreseeable future1.
The norms that determine the status of a state are implemented primarily in its legal personality. In this way, the position of the state in the international community and its potential capabilities are determined. Legal personality has two aspects: legal capacity(the ability to have rights and obligations under international law) ideational capacity (the ability to independently exercise rights and obligations under international law).
In principle, international legal capacity and legal capacity are inseparable. But there are situations when, while maintaining the status of a subject of international law, a state turns out to be completely or partially incapacitated. During the Second World War, the states occupied by Nazi Germany retained their legal capacity, and legal capacity was exercised to a limited extent by governments in exile. A similar situation occurred in our time during the occupation of Kuwait by Iraq.
§ 2. Fundamental rights and obligations of the state
Fundamental rights and obligations of the state are a category reflecting the conditions necessary for the life of the state within the international community. Therefore they belong to the category of so-called inalienable rights, which under normal conditions cannot be limited. For all states they are the same, regardless of their size, economic and military power and other differences.
Fundamental rights and obligations arise from the nature of the state and the character of the community. We can say that as the community is, so are the rights and responsibilities, and on the other hand, as are the rights and responsibilities of states, so is the international community. As the latter develops, the content of rights and obligations expands and becomes enriched.
Fundamental rights are related to sovereignty. They are often called sovereign rights. They serve as a prerequisite for the acquisition of other rights and obligations. In exercising their sovereign rights, states are limited by the corresponding rights of other states. The use of rights to the detriment of the rights and legitimate interests of other states is an abuse of rights1.
Taking into account the importance of the fundamental rights and duties of states, the UN General Assembly, already in the first years of its existence, instructed the UN International Law Commission to prepare a draft corresponding declaration. In 1949, the Commission presented such a project, which, however, was not adopted. With the adoption of the Declaration of Principles of International Law in 1970, the relevance of the issue diminished, since the principles determined the fundamental rights and responsibilities of states. In addition, in 1974, the General Assembly adopted the Charter of Economic Rights and Responsibilities of States.
Because the content basic principles has already been outlined in the previous chapter, only a few points need to be emphasized here. First of all, the principles must be interpreted in conjunction as a single complex, taking into account the purposes of international law as reflected in the UN Charter. This complex enshrines the most important right of the state, the people, the individual - the right to life and peace, as well as the obligation to cooperate in the name of this goal.
Each state has the right to demand the resolution of disputes by peaceful means and is obliged to respect the corresponding law of other states.
Each state has the right to independently decide its internal affairs and is obliged not to interfere in the corresponding affairs of other states.
A state has the right to cooperate with other states on the basis of democratic principles enshrined in the UN Charter, and has an obligation to cooperate.
The state has the right to freely choose its socio-political system and is obliged to respect the corresponding rights of other states, as well as the equality and self-determination of peoples.
The development of the content of the principle deserves attention sovereign equality. All states are equal before international law, each of them is obliged to respect the legal personality of others. From this follows the equal right of each state to participate in solving common problems, as well as issues in which it is directly interested. The affirmation of this right is an important step towards the democratization of the international order. For centuries it dominated freedom of contract, according to which powerful powers decided international affairs without the participation of other states, ignoring their interests. Only in our time has the right to participate in solving international problems found recognition. True, leading powers often do not show him due respect.
First of all, the right to participation applies to the most obvious case - participation in conferences and treaties dealing with problems of common interest and establishing rules of general international law. Nowadays, universal conventions contain a rule of inclusiveness.
For example, the Vienna Convention on Succession of States in Respect of Treaties of 1978 states: “This Convention is open for signature by all States...” (Article 46). The 1974 Charter of Economic Rights and Responsibilities of States established the right of each state “to participate in international trade and other forms of economic cooperation regardless of any differences.”
The situation with the right to participate in the decision is more complicated specific issues. Often it is ignored. To establish this right in practice, it is essential to clarify
the very concept of a directly interested state1 . We are talking about the legitimate interest of the state, a legally secured interest. The International Court of Justice has repeatedly emphasized the importance of legal interest for participation in resolving an issue and its difference from political interest 2 . The state may have political interest devoid of legal basis (for example, in preventing the conclusion of a trade agreement between two other states).
Most clearly defined territorial interest, giving the right to participate in determining the regime of the corresponding territory. On this basis, the USSR defended the priority right of coastal states to participate in the development of the Convention on the Regime of Navigation on the Danube of 1948. Such interest is of a material nature.
The interest may also be purely legal. Usually this is the fact of participation in a previously concluded agreement on the same issue. Thus, the non-Danubian states justified their right to participate in determining the Danube regime by their participation in a previously concluded treaty. Preference should be given not to formal legal interest, but to material interest.
A state illegally excluded from participation in resolving a certain issue has the right not to recognize the legal force of the decisions taken.
In solving many problems there is category of required participants, i.e. those without which the decision will remain on paper. Thus, in solving problems related to nuclear weapons, nuclear powers are necessary participants. However, the rights and interests of other states must also be taken into account. The 1968 Treaty on the Non-Proliferation of Nuclear Weapons provides that it comes into force upon ratification by the depository states (which are nuclear powers) and 40 other signatory states.
The establishment of the right to participation in international practice is of paramount importance for the reality of the rights of states and for the democratization of the world order.
§ 3. State jurisdiction
Each state enjoys the rights inherent in full sovereignty; other states are obliged to respect these rights and not interfere with their implementation. The UN General Assembly has repeatedly called on states to abandon laws whose extraterritorial effect contradicts the sovereignty of other states.
For the implementation of the sovereign rights of the state, the concept of jurisdiction is essential. The latter is a manifestation of sovereignty and means state power, its volume and scope. By scope they distinguish between full and limited jurisdiction, by scope -
territorial and extraterritorial, by the nature of power - legislative, executive, judicial.
Plenary jurisdiction means the power of a state to prescribe conduct and to enforce its precepts by all lawful means at its disposal. Limited jurisdiction means that the state can prescribe behavior, but is more or less limited in the means it can use to enforce the precepts.
Jurisdiction is exercised in accordance with a number of principles. The main one is territorial principle. In the draft Declaration of the Rights and Duties of States, it is formulated as follows: “Every state has the right to exercise jurisdiction over its territory and over all persons and things located within its boundaries, subject to the immunities recognized by international law” (Article 2).
Within its territory and within the scope of its sovereignty, the state exercises full jurisdiction. The fact is that the power of the state extends beyond its territory, for example, to citizens located in international spaces. To justify this provision, sea, air and space ships located in international space are considered part of the territory of their flag state. To a certain extent, the power of the state also extends to sea waters that are not part of its territory.
The second principle is personal, according to which the state exercises its power to a certain extent in relation to citizens even if they are outside its territory. We are talking about extraterritorial jurisdiction. Often, its effect also extends to stateless persons (stateless persons) and even to foreigners permanently residing in a given state (see § 5 of Chapter VIII).
Since the state exercises full jurisdiction within its territory, and limited jurisdiction in relation to its citizens abroad, the prevailing power belongs to
the law of the host country. A foreign country cannot mandate behavior that is prohibited by local law.
Thus, the scope of legislation is determined by the Air Code of the Russian Federation of 1997 as follows: the air legislation of the Russian Federation regulates the relevant relations “on the territory of the Russian Federation, as well as relations arising in connection with the location of aircraft of the Russian Federation outside the Russian Federation, unless otherwise provided by law host country or an international treaty of the Russian Federation...” (Article 5).
The state also exercises certain power functions on foreign territory. Its bodies abroad protect the interests of the state, its citizens and organizations, and control their activities to a certain extent. Diplomatic missions and consuls monitor compliance by their citizens and legal entities with domestic laws, as well as ensure that these entities are not infringed on their rights, monitor the implementation by the host country of agreements with the representing state, keep records of those liable for military service, carry out acts of indisputable jurisdiction (acts of civil states, notarial acts, etc.).
In addition to the Ministry of Foreign Affairs, an increasing number of other departments exercise government functions abroad. The practice of the CIS countries introduces many new aspects. Thus, the 1993 multilateral Legal Assistance Convention provides that parties have the right “to interrogate their own nationals through their diplomatic missions or consular posts”1.
A special case is agreements on the presence of foreign armed forces on the territory of a state, which extend the almost complete jurisdiction of a foreign state to part of the country’s territory.
§ 4. State immunity
As we have seen, jurisdiction must be exercised in accordance with the immunities recognized by international law. Immunity follows from the principle of sovereign equality. An equal has no power over an equal ( par in parem imperium non alphabet). Immunity was brought to life by the need to maintain official relations between states, the need for interaction between sovereign states on each other's territory (permanent diplomatic missions, delegations). Therefore, it was absolute, extending to any activity of a foreign state and its property.
However, as the state began to expand its private legal activities (trade, acquisition of goods and services, real estate, etc.), the situation began to change. At the end of the last century it appeared, and in our time has found wide recognition limited immunity concept. According to this concept, immunity is limited only to those relations in which the state acts as a bearer of sovereign power, actions performed by virtue of state power (jure imperii). As for legal relations of a commercial nature (jure gestionis), here the state does not have immunity, since legal entities and individuals entering into such relations with a foreign state cannot be deprived of legal protection.
In the post-war period, many states issued laws embodying the concept of limited immunity (Great Britain, USA, Singapore, Pakistan, South Africa, Canada, Australia). In other countries, the concept has been enshrined in court decisions. A 1963 decision of the Federal Constitutional Court of Germany stated that the granting of immunity depends on “whether the foreign state acts in the exercise of its sovereign power or as a private individual, i.e. within the framework of private law"1.
There was also a fundamental commitment absolute immunity, determined by the characteristics of the socio-economic system. This was the position of the socialist countries, in which state ownership was the basis of the economy and a state monopoly of foreign trade was established. This position is still felt in Russian legislation.
According to the current Code of Civil Procedure of the RSFSR of 1964, “bringing a claim against a foreign state, securing a claim and foreclosure on the property of a foreign state located in the USSR can only be allowed with the consent of the competent authorities of the relevant state” (Part 1, Article 435). In other words, we are talking about absolute immunity. According to the Civil Code of the Russian Federation, the specifics of liability of the Russian Federation and its subjects “in relations regulated by civil legislation, with the participation of foreign legal entities, citizens and states are determined by the law on the immunity of the state and its property” (Article 127). However, such a law has not yet been adopted.
An important factor influencing the process of rule formation is the doctrine of international law, which helps to understand certain international legal provisions, as well as the international legal positions of states. The collective opinion of lawyers from different countries is of particular importance. It is expressed in the documents of such public organizations as the Association of International Law, the Institute of International Law, etc. In international bodies involved in the preparation of draft conventions, a significant number of members are professors of international law (for example, the UN International Law Commission).
Concept and classification of subjects of international law.
Subjects of international law are independent entities capable of directly possessing rights and obligations under international law and participating in the creation and implementation of its norms.
Subject of international law– a person (in the collective sense) capable of participating in international public (power) legal relations regulated by the norms of international law. Those. the range of subjects of international law is determined by the ability of individuals to participate in international relations, to objectively fall under the direct influence of public international law.
Inherent features of a subject of international law: external isolation of a person, his personification (the presence of representative bodies), the ability to independently develop a will and implement it in international legal relations, i.e. exercise your rights and obligations.
International legal personality means at the same time subordination to the direct influence of international law, and the possession of international rights and obligations, and the ability to participate in international public legal relations. For subjects of international law, there is no distinction between legal capacity and legal capacity in the sense that a subject of international law is both legal and capable (from the moment of its inception).
In federal states, only the federation as a whole has full international legal personality. Certain elements of international legal personality may remain with the member states of the federation only as an exception and to the extent permitted by the authorities of the federation.
Modern international intergovernmental organizations are also considered as subjects of international law. Their legal personality is derivative and functional. They have a certain contractual legal personality, the right of mutual official representation, the right to maintain official relations with member states and other states.
Classification of subjects:
Primary subjects are not created as such by anyone; their appearance is an objective reality, the result of a natural historical process. These are states, peoples fighting for the creation of an independent state.
Derived subjects are created by primary ones. The extent of their international legal personality depends on the intention and desire of their creators. These are intergovernmental organizations, state-like entities - free cities, the Vatican.
States and peoples fighting for self-determination as the main subjects of international law.
Sovereign and independent states, being the main actors (actors) in the international arena, occupy a special place in the system of subjects of modern international law, play a key role in the creation of international legal norms and ensure control over their compliance.
The main prerequisite for the international legal personality of states has been and remains sovereignty.
Features of the legal personality of states.
1). A state is a subject of international law by its nature; its legal personality does not depend on the will of individual states, including its recognition by other states as such. A state becomes a subject of international law by virtue of the fact of its emergence.
2). The legal personality of the state is not limited to any time (from the moment of its emergence until the termination of its existence).
3). The contractual legal personality of the state is absolute.
Those. The state has absolutely legal personality.
At the same time, the implementation of the legal personality of states has its own specifics depending on the form of government. In unitary states, legal personality is exercised by the highest authorities. Agreements between parts of different states are not international legal treaties. Such agreements are in the nature of a private law transaction and are subject to the relevant branch of state law. The state is not liable under agreements to which it is a party. In federal states, only the federation as a whole has full international legal personality. Certain elements of international legal personality may remain with the member states of the federation only as an exception and to the extent permitted by the authorities of the federation.
Confederation is an association (union) of states based on an international treaty, which is formed to implement close cooperation between states in solving a number of common tasks(mutual defense, external relations, state security, economic development, etc.). It is characteristic of a confederation as a union of states that the member states of the confederation are considered as subjects of international law. The Confederation as a whole either has no legal personality at all or only limited legal personality. The confederation itself can also be a subject of international law if, when it was created, the member states entrusted it with responsibility for carrying out certain activities of an international nature, concluding international treaties, etc. If integration processes lead to the fact that the members of the confederation endow it with international legal personality, then a transition to a federation takes place.
A feature of modern international law from the point of view of its subjects is that peoples (nations) who are fighting for their state independence are recognized as participants in international legal relations and subjects of international law.
The struggle of peoples (nations) to form their own independent state is legal in accordance with international law and, in particular, the UN Charter. This follows from the principle of equality and self-determination of peoples - one of the basic principles of international law enshrined in the UN Charter. According to this principle:
Any state is obliged to respect the right of the people to self-determination. The establishment of this right was made with colonial peoples in mind, and in UN practice it was usually associated with peoples under colonial rule. The decolonization process has now been completed, but the principle of self-determination of peoples has not ceased to exist because of this. The implementation of this right often led to negative consequences (armed conflicts). The legal personality of a people is temporary and limited - only on issues related to its self-determination. The people have the right: a) to enter into agreements with any state on the provision of assistance, b) to participate in the development of international agreements if they address issues in one way or another related to the self-determination of a given people, c) to have representatives at international organizations as observers (this the right is not directly related to legal personality), d) participate in work international conferences and organizations. The scope of the legal personality of the people is narrower than that of the state. It is targeted.
Legal personality of international intergovernmental organizations.
International (intergovernmental) organizations are derivative subjects of international law. Their legal personality is derived from the legal personality of states, which, by virtue of their sovereign power, provide the organization with the corresponding status.
In its Advisory Opinion of 04/11/1949 “On compensation for damage to victims in the service of the UN,” the International Court of Justice indicated that, unlike states, the legal personality of an international organization is limited to the goals and powers necessary to solve the tasks assigned to them, enshrined in their constituent documents.
The necessary conditions for recognition of an international organization as a subject of international law are:
1) Availability of a constituent act, i.e. an agreement between states on the formation of an international organization, an agreement that is its Charter.
2) Availability of an organizational structure, i.e. organ systems,
3) The presence of an international organization of an autonomous will, different from the will of the member states of the international organization, which finds expression in the process of realizing its legal personality.
International organizations have treaty capacity, as enshrined in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. In contrast to the legal personality of states, the legal personality of international organizations is temporary: states can dissolve the organization (CMEA, Warsaw Treaty Organization).
The specificity of the legal personality of international organizations is that the scope of legal personality of different international organizations is not the same, it depends on the functions and tasks of the organization. The contractual capacity of an international organization is limited by its Charter. Thus, international organizations, unlike states, do not have universal legal personality.
Atypical subjects of international law.
The question of international legal personality individuals still causes conflicting opinions in international legal doctrine. The doctrine suggests at least two different answers to the question of an individual's status under international law.
Supporters of one direction believe that only states and international organizations can be subjects of international law. According to another direction, since international law contains rules on the rights of the individual, on the responsibility of the individual, the latter increasingly becomes its subject.
The third direction, which is essentially a variation of the first, considers the individual not a subject, but a “beneficiary” of international law. For example, Lukashuk I.I. believes that individuals can only be beneficiaries and not subjects of international law. Because, although they are capable of possessing certain rights and obligations, nevertheless, they cannot participate in the creation of such rights and obligations, as well as in their application, and cannot bear legal responsibility under international standards.
Supporters of recognizing the status of a subject of international law for an individual refer to the fact that this right can directly create rights and obligations for the individual. Indeed, this is possible, but only in a very special case, when, using national law, the necessary goal cannot be achieved.
However, without equating individuals with existing subjects of international law, it is necessary to clearly represent those elements of international legal personality that are actually inherent in individuals. In this case, we are talking about existing international guarantees aimed at protecting human rights and freedoms, as well as the international responsibility of individuals for crimes against peace and humanity.
An individual in international law has limited legal personality ad hoc (for a specific case): when he applies to an international control body, he is responsible for international crimes. It is sometimes classified as a functional subject of international law along with international non-governmental organizations and transnational corporations.
The question of the legal personality of the international community of states is a new concept in modern international law. There are a number of international legal documents containing the provision that the opinion of the international community of states acts as an evaluative criterion for the legality of the behavior of a state, of any norm of international law.
Thus, the Vienna Convention on the Law of International Treaties of 1969 in Article 53 gives the concept of a peremptory norm of general international law: such a norm, deviation from which from the point of view of the international community of states is unacceptable. Such a norm can only be repealed or amended by a similar norm of general international law. i.e. The international community has the competence to create the principles and norms of general international law, including those that determine its legal status. Only the community, acting as a whole, has the right to create and change norms that have the highest legal force - mandatory norms (jus cogens).
The draft articles on State responsibility say that an injured State can hold another State responsible if the obligation violated is an obligation towards the international community as a whole. During the discussion of this project in the Commission, the opinion was expressed that the community would acquire the status of a “quasi-public legal entity.”
There is an opinion that the international community is personified in the UN. This is the most universal organization (192 states). The peculiarities of this international organization are that 1) the principles of the UN are the basic principles of international law and are binding on all states, even non-members of the UN, 2) in the structure of the main bodies, an important place belongs to the Security Council, which has the right to intervene in a dispute between states, incl. non-members of the UN and make recommendations on how to resolve the dispute. The Security Council can apply sanctions against any state if it has committed an international crime. Consequently, the UN expresses the interests of the international community of states.
Another opinion is that the international community is no longer interpreted only as a collection of states, but is understood much more broadly - as a community of all people living on earth, as a kind of universal human community.
Concept, types and methods of recognition in international law.
Under recognition is understood as a unilateral voluntary act of the state, stating a change in international relations, associated with the emergence of a new subject of international law on the international arena and expressing a desire to cooperate with it.
The institute has not yet been codified. This is explained, first of all, by the fact that this institution is especially closely connected with politics (some consider recognition only as a political act), and also by the fact that with changes in the international system its content changes. Therefore, today a decisive role in regulating recognition is played by the basic principles of international law, as well as the practice of states and international organizations.
In a significant number of cases the confession is tacit. If the legal consequences of a behavior or situation are not recognized, the state protests.
In the theory of international law in relation to international legal personality, recognition of states and recognition of governments are distinguished. Temporary types of recognition include recognition of bodies of national resistance (liberation) and the rebel (belligerent) side.
Recognition of states.
There is no special document in international law that sets out the criteria for recognizing a state. A necessary condition for recognition of a state is its legal formation. The following are recognized as legitimate criteria for the formation of a new state:
initial - if a new state arises as a result of the implementation of the right of nations to self-determination. For example, in 1974, the rebel province of Bengal achieved the declaration of itself as a new state - Bangladesh;
derivatives - new states arise as a result of changes that occur with previous states: through unification with another state, the collapse of a state and the emergence of new independent states on its territory (the situation with the collapse of the Soviet Union), the separation of a new state from one state, etc. .
The institution of recognition has been used in the practice of the UN and other international organizations as a tool reflecting the position of the international community regarding the prevention of the emergence of undemocratic forms of government. Currently, in order to fully participate in international legal relations, the newly formed state must meet certain requirements, which tend to expand.
Government recognition.
The need to recognize the government arises when the government comes to power unconstitutionally (as a result of a revolution, coup d'etat) or when the form of government changes, for example, instead of a monarchical government, a republican one is established. But if in the latter case the official name of the state changes, then recognition of the new government can be carried out in the form of recognition of the state.
The criterion for recognition of a government is its effectiveness, that is, the ability to exercise power over a large part of the state's territory. The principle of efficiency in recognizing government is applied in conjunction with the principle of legality.
The trend is now towards greater control by the international community, and the criterion of legality becomes the legal basis for government recognition. The legitimacy of a new government is determined within the framework of international legitimacy: the extent to which the political regime established by the new government complies with international human rights standards.
In the event of foreign occupation, it is often necessary to create national resistance leadership bodies, and, consequently, the problem of attitude towards them on the part of other states arises. The scope and consequences of recognition in this case are different. After their recognition, these bodies received the opportunity to participate in international conferences, negotiations, speak in international organizations, and have observer status with them. States could provide various types of assistance to these bodies. The history of civil wars of the past knows cases of recognition by the “rebel” and “belligerent” side. They take place when it comes to Civil War between the government and opposition forces.
Forms of recognition and their legal consequences.
Depending on the scope of legal consequences, there are two forms of official recognition: de jure and de facto. They are used in the recognition of states and governments. Both forms of recognition entail certain legal consequences for the party being recognized, although to different extents. (With de facto recognition, the scope of legal consequences is narrower).
Full official recognition is expressed de jure. It is final and cannot be revoked. De jure recognition may be express (official statement, note) or implied. Under it, diplomatic, consular and other official relations are established with the recognized state or government; its contractual capacity is recognized; immunity from the jurisdiction of foreign courts. It is believed that only a de jure recognized state or government can lay claim to state property abroad, for example, archives, bank deposits, real estate.
De facto recognition is temporary, limited recognition. With it, the recognizing state does not make relevant statements; only consular or trade and economic relations can be established with the recognized party. It is temporary and transitional to de jure recognition (limited by the framework of the concluded agreement), but can also be revoked. The extent of such recognition varies from case to case. More often, this form of recognition is applied to a new government.
Sometimes states or governments enter into official contact with an unrecognized state or government involuntarily, to resolve specific issues, but at the same time do not want to recognize each other. In this case, they talk about ad hoc recognition (in a given situation, in a specific case). Such contacts are often accompanied by a statement that they should not be regarded as recognition on the part of the state entering into such contacts.
The relationship between international and domestic law.
The problem of the relationship between international and national law occupies a central place in the doctrine and practice of the modern rule-making process. The relationship between international and domestic law in the theory of international law is usually understood as, firstly, the relationship between the strength of international legal and domestic norms and, secondly, the interaction of international and national law in the process of creating norms of international law and norms of national legislation and in the process of their implementation.
Doctrinal concepts of the relationship between international and domestic law were developed in the works of Western scientists. They developed two theories: dualistic and monistic.
Representatives of the dualistic theory considered international and national law as independent legal systems related to different legal orders, not in subordination.
The monistic concept views international and national law as parts of a single legal system. However, it recognizes them as unequal in status, and gives preference to either the priority of national law or the priority of international law. From here two directions in monistic theory were formed.
First– the earliest, developed in the 19th century, was based on the recognition of the supremacy of national law. Representatives of this school of thought viewed international law as the sum of the foreign rights of various states.
The most widespread second direction of the monistic concept, based on the recognition of the primacy of international law. Among representatives of this trend, there is no unity of views regarding the legal consequences of the determining influence of international law on the process of domestic regulation, which led to the emergence of 2 currents: radical and moderate monism.
Representatives of radical monism proceed from the existence of one legal system with a “supreme legal order” (international law) and “subordinate” national legal orders. International law, being the highest legal order, delegates the authority to states to exercise jurisdiction over their territory. Any norm of national law that contradicts international law is void in international legal terms and does not exist at all.
The fallacy of the statements of radical monists became obvious to Western lawyers, which led to the emergence of a new movement - moderate monism. Moderate monists criticize the postulate that international law delegates jurisdictional powers to states, emphasizing the fact that international law sets limits on the activities of each state, thereby limiting their freedom of action in the international arena. Therefore, in case of conflict with the international obligations of the state, internal law does not automatically lose force, laws and regulations continue to be provisionally applied by national courts until the state brings them into conformity with its international obligations. They see the role of the state as facilitating the transformation of international law into national law.
The mechanism for implementing international law into the domestic law of states.
17 Constitutional and legislative mechanism for the implementation of international law in the Republic of Belarus.
Implementation of international law is the activity of states for the comprehensive, timely, full implementation of the requirements contained in the norms of international law, as well as legal and other support for this activity, undertaken by them at the domestic level independently, or at the international level individually or jointly with others states, including within the framework of international organizations.
The primary responsibility for ensuring the effective implementation of international law rests with states. However, the mere fact of participation of a particular state in international agreements does not mean that all their provisions will automatically be applied and effectively operate. It is necessary to put into effect a system of legal and other measures in the national legal order to ensure the implementation of the requirements of international treaties.
Internal legal relations arising as a result of the state's acceptance of international obligations are regulated not by treaty, but by national rules of law. An international treaty in this case acts only as a legal fact, causing the need for domestic law-making and the establishment, accordingly, of domestic legal relations.
The domestic mechanism for the implementation of international law is a set of national legal means used for the implementation of international law in a particular area of international cooperation, and state bodies authorized to implement the international obligations of the state, and carrying out law enforcement activities, the formation of national law enforcement practice that meets the requirements of international law. -legal norms.
National legal means used to implement international law include:
normative legal acts of a general nature regulating the relationship between international and domestic law, the conclusion, execution and termination of international treaties, rule-making activities, as well as defining the competence of state bodies in the field of implementation of international law;
