Legal personality of international (intergovernmental) organizations and state-like entities. Legal personality of state-like entities The problem of the international legal personality of an individual
Some political-territorial formations also enjoy international legal status. Among them were the so-called. Free Cities, West Berlin. This category of entities includes the Vatican and the Order of Malta. Since these formations are most like mini-states and have almost all the features of a state, they are called "state-like formations".
The legal capacity of free cities was determined by the relevant international treaties. Thus, according to the provisions of the Vienna Treaty of 1815, Krakow was declared a free city (1815-1846). Under the Versailles Peace Treaty of 1919, Danzig (1920-1939) enjoyed the status of a "free state", and in accordance with the peace treaty with Italy in 1947, the creation of the Free Territory of Trieste was provided, which, however, was never created.
West Berlin (1971-1990) had a special status granted by the quadripartite agreement on West Berlin in 1971. In accordance with this agreement, the western sectors of Berlin were united into a special political entity with their own authorities (the Senate, the prosecutor's office, the court, etc.), to which some of the powers were transferred, for example, the issuance of regulations. A number of powers were exercised by the allied authorities of the victorious powers. The interests of the population of West Berlin in international relations were represented and defended by consular officials of the FRG.
The Vatican is a city-state located within the capital of Italy, Rome. Here is the residence of the head of the Catholic Church - the Pope. The legal status of the Vatican is determined by the Lateran Agreements signed between the Italian state and the Holy See on February 11, 1929, which are basically still in force today. In accordance with this document, the Vatican enjoys certain sovereign rights: it has its own territory, legislation, citizenship, etc. The Vatican actively participates in international relations, establishes permanent missions in other states (there is also a representative office of the Vatican in Russia), headed by papal nuncios (ambassadors), participates in international organizations, in conferences, signs international treaties, etc.
The Order of Malta is a religious formation with its administrative center in Rome. The Order of Malta actively participates in international relations, concludes agreements, exchanges representations with states, has observer missions in the UN, UNESCO and a number of other international organizations *.
International legal status of subjects of the federation
In international practice, as well as foreign international legal doctrine, it is recognized that the subjects of some federations are independent states, whose sovereignty is limited by joining the federation. The subjects of the federation are recognized to have the right to act in international relations within the framework established by federal legislation.
The German constitution, for example, provides that the Länder, with the consent of the federal government, may conclude treaties with foreign states. Norms of a similar content are enshrined in the law of some other federal states. At present, the states of the Federal Republic of Germany, the provinces of Canada, the states of the USA, the states of Australia and other entities, which in this regard are recognized as subjects of international law, are actively involved in international relations.
The international activity of subjects of foreign federations develops in the following main directions: the conclusion of international agreements; opening representative offices in other states; participation in the activities of some international organizations.
The question arises whether there are norms in international law on the international legal personality of subjects of the federation?
As is known, the most important element of international legal personality is contractual legal capacity. It represents the right to directly participate in the creation of international legal norms and is inherent in any subject of international law from the moment of its inception.
The issues of concluding, executing and terminating treaties by states are regulated primarily by the Vienna Convention on the Law of Treaties of 1969. Neither the 1969 Convention nor other international documents provide for the possibility of independent conclusion of international treaties by subjects of the federation.
Generally speaking, international law does not contain a ban on the establishment of contractual relations between states and subjects of federations and subjects among themselves. However, international law does not classify these agreements as international treaties, just as contracts between the state and a large foreign enterprise are not. In order to be a subject of the law of international treaties, it is not enough to be a party to an international agreement. It is also necessary to have the legal capacity to conclude international treaties.
The question arises about the international legal status of the subjects of the Russian Federation.
International legal status of subjects of the Russian Federation
As is known, the 1977 Constitution of the USSR recognized the union republics as subjects of international law. Ukraine and Belarus were members of the UN , participated in many international treaties. Less active participants in international relations were other union republics, whose constitutions provided for the possibility of concluding international treaties and exchanging missions with foreign states. With the collapse of the USSR, the former Soviet republics acquired full international legal personality, and the problem of their status as independent subjects of international law disappeared.
However, the processes of sovereignization that engulfed the newly independent states raised the question of the legal personality of the former national-state (autonomous republics) and administrative-territorial (regions, territories) formations. This problem acquired special significance with the adoption of the new Constitution of the Russian Federation in 1993 and the conclusion of the Federal Treaty. Today, some subjects of the Russian Federation declared their international legal personality.
The subjects of the Russian Federation try to act independently in international relations, conclude agreements with the subjects of foreign federations and administrative-territorial units, exchange representations with them and fix the relevant provisions in their legislation. The charter of the Voronezh region of 1995, for example, recognizes that the organizational and legal forms of the region's international relations are forms generally accepted in international practice, with the exception of treaties (agreements) of the interstate level. Taking part in international and foreign economic relations on its own or with other subjects of the Russian Federation, the Voronezh Region opens representative offices on the territory of foreign states to represent the interests of the region, which act in accordance with the legislation of the host country.
The normative acts of some constituent entities of the Russian Federation provide for the possibility of them concluding international treaties on their own behalf. Yes, Art. 8 of the 1995 Charter of the Voronezh Region establishes that international treaties of the Voronezh Region are part of the region's legal system. Norms of a similar content are fixed in Art. 6 of the Charter of the Sverdlovsk Region 1994, art. 45 of the Charter (Basic Law) of the Stavropol Territory of 1994, art. 20 of the Charter of the Irkutsk region of 1995 and other charters of the constituent entities of the Russian Federation, as well as in the constitutions of the republics (Article 61 of the Constitution of the Republic of Tatarstan).
Moreover, in some constituent entities of the Russian Federation, regulations have been adopted that regulate the procedure for concluding, executing and terminating contracts, for example, the law of the Tyumen region “On international agreements of the Tyumen region and treaties of the Tyumen region with the constituent entities of the Russian Federation” was adopted in 1995. The law of the Voronezh region “On legal normative acts of the Voronezh region" 1995 establishes (Article 17) that the state authorities of the region have the right to conclude agreements that are regulatory legal acts with the state authorities of the Russian Federation, with the constituent entities of the Russian Federation, with foreign states on issues representing their common, mutual interest.
However, the statements of the constituent entities of the Russian Federation about their international contractual legal capacity do not yet mean, in my deep conviction, the existence of this legal quality in reality. It is necessary to analyze the relevant norms of legislation.
Federal legislation does not address this issue yet.
According to the Constitution of the Russian Federation (clause “o”, part 1, article 72), the coordination of international and foreign economic relations of the constituent entities of the Russian Federation belongs to the joint jurisdiction of the Russian Federation and the constituent entities of the Federation. However, the Constitution does not directly speak about the possibility of the subjects of the Russian Federation to conclude agreements that would be international treaties. The Federal Treaty does not contain such norms either.
The Federal Law "On International Treaties of the Russian Federation" of 1995 also refers the conclusion of international treaties of the Russian Federation to the jurisdiction of the Russian Federation. It has been established that the international treaties of the Russian Federation concerning issues related to the jurisdiction of the subjects of the Federation are concluded in agreement with the relevant bodies of the subjects. At the same time, the main provisions of agreements affecting issues of joint jurisdiction should be sent for submission of proposals to the relevant bodies of the subject of the federation, which, however, do not have the right to veto the conclusion of the agreement. The 1995 law does not say anything about the agreements of the subjects of the Federation.
It should also be taken into account that neither the Constitution of the Russian Federation nor the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” dated July 21, 1994 fix the norms on checking the constitutionality of international treaties of the subjects of the Federation, although such a procedure is provided for international treaties of the Russian Federation.
As for the practice of exchanging representations with subjects of foreign federations, this quality is not the main one in characterizing international legal personality, however, we note that neither the Constitution nor the legislation of the Russian Federation have yet regulated this issue. These representative offices are not opened on the basis of reciprocity and are accredited by any authority of a subject of a foreign federation or territorial unit. These bodies, being foreign legal entities, do not have the status of diplomatic or consular missions and are not subject to the provisions of the relevant conventions on diplomatic and consular relations.
The same can be said about the membership of the subjects of the Russian Federation in international organizations. It is known that the statutes of some international organizations (UNESCO, WHO, etc.) allow membership in them of entities that are not independent states. However, firstly, membership in these organizations of the constituent entities of the Russian Federation has not yet been formalized, and, secondly, this sign, as already mentioned, is far from the most important in characterizing the subjects of international law.
Considering the above, the following conclusion can be drawn:
although at present the subjects of the Russian Federation do not fully possess all the elements of international legal personality, there is a clear trend towards the development of their legal personality and their registration as subjects of international law. In my opinion, this issue needs to be resolved in federal legislation.
State-like formations- derived subjects of international law. This term is a generalized concept, since it applies not only to cities, but also to certain areas. G.p.o. are created on the basis of an international treaty or a decision of an international organization and represent a kind of state with limited legal capacity. They have their own constitution or an act of a similar nature, the highest state bodies, citizenship. There are political-territorial (Danzig, Gdansk, West Berlin) and religious-territorial state-like formations (Vatican, Order of Malta). Currently, there are only religious-territorial state-like entities. Such entities have territory, sovereignty; have their own citizenship, legislative assembly, government, international treaties. Most often, such formations are temporary in nature and arise as a result of the unsettled territorial claims of various countries to each other.
The common thing for political-territorial formations of this kind is that in almost all cases they were created on the basis of international agreements, as a rule, peace treaties. Such agreements endowed them with a certain international legal personality, provided for an independent constitutional structure, a system of government bodies, the right to issue normative acts, and have limited armed forces. These are free cities in the past (Venice, Novgorod, Hamburg, etc.) or in modern times (Danzig). West Berlin had a special status after the Second World War (before the unification of Germany in 1990).
The Order of Malta was recognized as a sovereign entity in 1889. Seat of the Order - Rome. Its official purpose is charity. It has diplomatic relations with many states. The order does not have its own territory or population. Its sovereignty and international legal personality are a legal fiction.
State-like subjects of international law include Vatican. This is the administrative center of the Catholic Church, headed by the Pope, "state-city" within the Italian capital - Rome. The Vatican has diplomatic relations with many states in various parts of the world (including Russia), permanent observers at the UN and some other international organizations, and takes part in international conferences of states. The legal status of the Vatican is determined by special agreements with Italy in 1984.
21. the issue of compliance with, application and interpretation of international treaties. invalidity of international treaties. Suspension and termination of contracts.
Each valid contract is binding on the participants. The participants must fulfill in good faith the obligations assumed under the treaty and cannot invoke the provisions of their internal law as an excuse for not fulfilling the treaty (Article 27 of the 1969 Vienna Convention
Section 2 of this part of the Convention, dealing with the application of treaties, contains Art. 28-30. The first of these establishes that treaties do not have retroactive effect, unless otherwise clear from the treaty or otherwise established. According to Art. 29, a treaty is binding on each State Party in respect of its entire territory, unless otherwise clear from the treaty or otherwise provided. Article 30 deals with the application of successive treaties relating to the same subject.
In addition, the general rule is that contracts do not have retroactive, i.e. do not apply to events that took place before the entry into force of the treaty . In addition, unless otherwise follows from the contract, it applies to all territories contracting states.
interpretation aims at clarifying the meaning of the text of the treaty, while application involves establishing the consequences for the parties, and sometimes for third states. Interpretation itself can be defined as a legal procedure that, in connection with the application of a contract to a real case, is aimed at clarifying the intentions of the parties when concluding a contract by examining the text of the contract and other relevant materials. The interpretation of an international treaty must be carried out in accordance with the basic principles of international law. It must not lead to results contrary to these principles, nor violate the sovereignty of states and their fundamental rights. The next principle is conscientious interpretation, that is, honesty, lack of desire to deceive the counterparty, the desire to establish the true meaning of the international treaty enshrined in its text.
The main object of interpretation, which is decisive, is the text of the treaty, which includes all parts of the treaty, including the preamble and, where appropriate, annexes, as well as any agreement relating to the treaty that was reached between all the parties in connection with the conclusion of the treaty, and any document drawn up by one or more of the parties in connection with the conclusion of a contract and accepted by the other parties as a document relating to the contract.
International interpretation is the interpretation of a treaty by international bodies provided for by states in the international treaty itself or authorized by them subsequently, when a dispute over interpretation has arisen, to resolve this dispute. Such bodies may be specially created commissions or an international court (arbitration). In the first case, one speaks of international administrative interpretation, in the second, of international judicial interpretation.
informal interpretation. This is the interpretation that is given by lawyers, legal historians, journalists, public organizations and politicians. This also includes the doctrinal interpretation given in scientific works on international law.
An authentic interpretation of an international treaty can be embodied in various forms: a special treaty or an additional protocol, an exchange of notes, etc.
An international treaty is declared null and void if:
1) it was concluded with a clear violation of internal constitutional norms regarding the competence and procedure for concluding an agreement (Article 46 of the Vienna Convention);
2) consent to an obligation under the contract was given by mistake, if the error concerns a fact or situation that existed at the conclusion of the contract and constituted an essential basis for consent to be bound by the contract (Article 48 of the Vienna Convention);
3) the state concluded the contract under the influence of fraudulent actions of another state participating in the negotiations (Article 49 of the Vienna Convention);
4) the consent of the state to be bound by the treaty was expressed as a result of direct or indirect bribery of its representative by another state participating in the negotiations (Article 50 of the Vienna Convention);
5) the representative of the state agreed to the terms of the contract under duress or threats directed against him (Article 51 of the Vienna Convention);
6) the conclusion of the treaty was the result of the threat or use of force in violation of the principles of international law embodied in the UN Charter (Article 52 of the Vienna Convention);
7) the contract at the time of conclusion is contrary to the basic principles of international law (Article 53 of the Vienna Convention).
Distinguish types of invalidity international treaty:
1) relative - the signs are: violation of internal constitutional norms, mistake, deceit, bribery of a representative of the state;
2) absolute - the signs include: coercion of the state or its representative; the contradiction of the treaty to the basic principles or peremptory norm of general international law (jus cogens).
Termination of international treaties is the loss of its legal force. Termination of the contract is possible in the following cases:
1. When executing international treaties.
2. Upon expiration of the contract.
3. With the mutual consent of the parties.
4. When a new peremptory norm of general international law emerges.
5. Denunciation of a treaty means the lawful refusal of the state from the treaty on the terms stipulated by the agreement of the parties in the treaty itself, carried out by the highest state authority, with notification of the counterparty.
6. Recognition of the treaty as invalid due to coercion of the state to sign it, deceit, error, contradiction of the treaty with the norm of jus cogeiu.
7. Termination of the existence of the state or change of its status.
9. Cancellation - recognition of the contract as invalid unilaterally. The legitimate grounds are: a significant violation by the counterparty of obligations under the contract, invalidity of the contract, termination of the existence of the counterparty, etc.
10. Occurrence of a resolutive condition; the contract may provide for a condition upon the occurrence of which the contract is terminated.
11. Suspension of the contract - termination of its action for a certain (indefinite) time. This is a temporary break in the operation of the contract under the influence of various circumstances. Suspension of the treaty has the following consequences (unless the parties agree otherwise):
releases participants from the obligation to comply with it during the period of suspension;
does not affect other legal relations between the participants established by the agreement
7 question main sources of international law
Sources of international law are the forms of existence of international legal norms. Under the source of international law is understood the form of expression and consolidation of the norms of international law. A document containing a rule of law. Types of sources of international law: 1) basic: international treaties; international (international legal) customs; 2) derivatives: acts of international conferences and meetings, resolutions of international organizations. (UN General Assembly resolutions).
An international treaty is an agreement between states or other subjects of international law, concluded in writing, containing the mutual rights and obligations of the parties, regardless of whether they are contained in one or more documents, and also regardless of its specific name.
International custom - these are the rules of conduct as a result of repeated repetition for a long time, acquired the tacit recognition of the subjects of international law.
The acts of international conferences include an agreement as a result of the activities of a conference created specifically for the development of an international agreement of states, which was ratified and put into effect.
8. international treaty as a source of international law
A state-like formation is a rather complex and exceptional phenomenon of an international legal nature, still poorly studied by the domestic science of international law. Educational literature contains very little information about this unique phenomenon, and specialized literature only touches on certain aspects of individual state-like entities. There are no separate monographs or dissertations devoted to the concept, international legal personality and other issues of the status of state-like entities in Russia.
Special political-territorial formations (sometimes they are called state-like) can participate in international relations, which have internal self-government and, to various extents, international legal personality.
Most often, such formations are temporary in nature and arise as a result of the unsettled territorial claims of various countries to each other.
The common thing for political-territorial formations of this kind is that in almost all cases they were created on the basis of international agreements, as a rule, peace treaties. Such agreements endowed them with a certain international legal personality, provided for an independent constitutional structure, a system of government bodies, the right to issue normative acts, and have limited armed forces.
These, in particular, are the free cities and the Vatican.
A free city is a state-city that has internal self-government and some international legal personality. One of the first such cities was Veliky Novgorod. The Hanseatic cities were also among the free cities (the Hanseatic League included Lubeck, Hamburg, Bremen, Rostock, Danzig, Riga, Derpt, Revel, Amsterdam, Kennigsberg, Kiel, Stralsund and others - a total of 50 cities).
In the XIX and XX centuries. the status of free cities was determined by international legal acts or resolutions of the League of Nations and the UN General Assembly and other organizations. For example, the status of Krakow was established in Art. 4 of the Russian-Austrian treaty, in Art. 2 of the Russian-Prussian treaty, in the additional Austro-Russian-Prussian treaty of May 3, 1815; in Art. 6-10 of the Final Act of the Congress of Vienna, June 9, 1815; in the Free City Constitution of 1815/1833. Subsequently, by an agreement of November 6, 1846, concluded by Austria, Prussia and Russia, the status of Krakow was changed and it became part of Austria.
The status of the Free City of Danzig (now Gdansk) was defined in Art. 100-108 of the Versailles Peace Treaty of June 28, 1919, in the Polish-Danzig Convention of November 9, 1920 and in a number of other agreements (for example, in the agreement of October 24, 1921 and in the decisions of the High Commissioner of the League of Nations, subsequently recognized Polish government).
The scope of international legal personality of free cities was determined by international agreements and constitutions of such cities. The latter were not states or trust territories, but occupied, as it were, an intermediate position. Free cities did not have full self-government. However, they were subject only to international law. For residents of free cities, a special citizenship was created. Many cities had the right to conclude international treaties and join intergovernmental organizations. The guarantors of the status of free cities were either a group of states or international organizations (the League of Nations, the UN, etc.). An integral feature of a free city is its demilitarization and neutralization.
West Berlin had a special international legal status. After the end of the Second World War, as a result of the split of Germany, two sovereign states were formed: the Federal Republic of Germany and the German Democratic Republic, as well as a special political and territorial unit - West Berlin.
The government of the USSR, in agreement with the government of the GDR, in 1958 proposed to give West Berlin, located on the territory of the GDR, the status of a demilitarized free city capable of performing international functions under the guarantee of four powers: Great Britain, the USSR, the USA and France.
The international legal status of West Berlin was determined by the Quadripartite Agreement, signed by the governments of Great Britain, the USSR, the USA and France on September 3, 1971. In accordance with this document, West Berlin had a unique international legal status. The state-political structure of West Berlin was determined by the Constitution, which entered into force on October 1, 1950. The international legal personality of West Berlin was of a limited nature. The city had its own diplomatic and consular corps, accredited to the respective authorities of the US, British and French governments. The USSR, with the consent of the governments of these countries, established the Consulate General. West Berlin had the right to participate in international negotiations, conclude agreements regarding communications, the telegraph, regulate the travel of permanent residents to various regions of the GDR, etc. Germany represented the western sectors of Berlin in international organizations and conferences.
The special status of West Berlin was canceled in 1990. In accordance with the Treaty on the final settlement with respect to Germany of September 12, 1990, the united Germany includes the territories of the GDR, the FRG and all of Berlin.
Vatican. In 1929, on the basis of the Lateran Treaty, signed by the papal representative Gaspari and the head of the Italian government, Mussolini, the "state" of the Vatican was artificially created (the treaty was revised in 1984). The creation of the Vatican was dictated by the desire of Italian fascism in its domestic and foreign policy to enlist the active support of the Catholic Church. In the preamble of the Lateran Treaty, the international legal status of the state "Vatican City" is defined as follows: in order to ensure absolute and explicit independence of the Holy See, guaranteeing indisputable sovereignty in the international arena, the need to create a "state" of Vatican City was revealed, recognizing in relation to the Holy See its full ownership , exclusive and absolute power and sovereign jurisdiction.
The main goal of the Vatican is to create conditions for independent government for the head of the Catholic Church. At the same time, the Vatican is an independent international personality. He maintains external relations with many states, establishes his permanent missions (embassies) in these states, headed by papal nuncios or internuncios (Article 14 of the Vienna Convention on Diplomatic Relations of 1961). Delegations of the Vatican participate in the work of international organizations and conferences. It is a member of a number of intergovernmental organizations (IAEA, ITU, UPU, etc.), has permanent observers at the UN, JSC, UNESCO and other organizations.
At the same time, the Vatican is not a state in the social sense as a mechanism for managing a certain society, generated by it and representing it. Rather, it can be seen as the administrative center of the Catholic Church.
According to the Basic Law (Constitution) of the Vatican, the right to represent the state belongs to the head of the Catholic Church - the pope. At the same time, it is necessary to distinguish between the agreements concluded by the pope as the head of the church on church affairs (concordats), from the secular agreements that he concludes on behalf of the state of the Vatican.
under the state in international law, a country is understood with all the features of a sovereign state inherent in it. However, not every country can be a state in the international legal sense and a subject of international law (for example, colonial countries and other geopolitical units).
From the history
The first attempt to codify the international legal features of the state was given in the Inter-American Convention on the Rights and Duties of the State of 1933. According to Art. 1 of this Convention, a state, as a person of international law, must have the following conditions:
permanent population;
a certain territory;
government;
ability to enter into relations with other states.
The most important features of the state are sovereignty, territory, population and power.
Sovereignty is a distinctive political and legal property of the state. State sovereignty is the inherent supremacy of the state on its territory and its independence in the sphere of international relations. Only states have this property, which predetermines their main characteristic features as the main subjects of international law. Sovereignty is the foundation of all fundamental rights of the state.
Any state has sovereignty from the moment of its inception. His international legal personality does not depend on the will of other subjects. It ceases only with the termination of the given state. According to Art. 3 of the Inter-American Convention on the Rights and Duties of States of 1933 “the political existence of a state does not depend on its recognition by other states. Even an as yet unrecognized state has the right to defend its integrity and its independence, to look after its safety and prosperity, and, as a consequence of this, organize itself as it pleases, legislate its interests, manage its departments and determine the jurisdiction and competence of its courts. Unlike other subjects of international law, the state has universal legal personality.
According to UN Charter states not only have sovereignty, but also independence. All members of the UN shall refrain in their international relations from the threat or use of force against the political independence of any state.
Territory is an essential condition for the existence of the state. It is fixed and guaranteed by generally recognized norms and principles of international law. According to the Final Act of the 1975 Conference on Security and Cooperation in Europe, states are obliged to respect the territorial integrity of each of the participating states. Accordingly, they refrain from any action inconsistent with the purposes and principles of the UN Charter against the territorial integrity, political independence or unity of any state.
The states parties to the Final Act regard as inviolable all the frontiers of one another, as well as the frontiers of all states in Europe, and therefore they will refrain now and in the future from any encroachment on these frontiers. They also refrain from any or actions aimed at the seizure and usurpation of part or all of the territory of any participating State.
Population is a permanent sign of the state. According to the UN Charter, the Declaration on the Granting of Independence to the Colonial Countries and Peoples of the city and the International Covenant on Economic, Social and Cultural Rights of 1966, peoples are subject to the right to self-determination. By virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development. In accordance with the Declaration on Principles of International Law of 1970, the content of the principle of equal rights and self-determination of peoples includes, in particular, the creation of a sovereign and independent state, free accession to or association with an independent state, or the establishment of any other political status freely determined by the people.
public authority is one of the main features of the state. In international law, it is the bearer of organized sovereign power. In whatever relationship the government of the state and its other bodies act, they always act on behalf of the state. The state in the international legal sense is understood as the unity of power and sovereignty.
States act in international relations as sovereign entities over which there is no power whatsoever capable of prescribing legally binding rules of conduct for them. The norms of international law that regulate the relations of states in the sphere of international communication are created by the states themselves through their agreement (coordination of wills) and are aimed at strict observance of state sovereignty in international relations. Respect for the sovereignty of any state, recognition of the sovereign equality of all states are among the fundamental principles of modern international law. According to the Declaration on Principles of International Law, d. all states enjoy sovereign equality. They have the same rights and obligations and are equal members of the international community, regardless of economic, social, political or other differences.
The concept of sovereign equality includes the following elements:
states are legally equal;
each state enjoys the rights inherent in full sovereignty;
each state is obliged to respect the legal personality of other states;
the territorial integrity and political independence of the state are inviolable;
every state has the right to freely choose and develop its political, social, economic and cultural systems;
Every State is bound to comply fully and in good faith with its international obligations and live in peace with other states.
Every state has an obligation to maintain relations with other states in accordance with the rules of international law and in accordance with the principle that the sovereignty of each state is subject to the (supremacy) of international law.
Features of the legal personality of federal states
A unitary state participates in international relations as a single subject of international law, and the question of the international legal personality of its constituent parts does not arise in this case.
Federations are complex states. Members of the federation (republics, regions, states, lands, etc.) retain a certain intrastate independence, but, as a rule, do not have the constitutional right to participate independently in foreign relations, therefore, they are not subjects of international law. In this case, only the federation as a whole acts in the international arena as a single subject of international law. As noted in Art. 2 of the Inter-American Convention on the Rights and Duties of States of 1933, "a federal state constitutes only one person before international law." For example, according to Art. 10 of the US Constitution, no state may enter into treaties, unions, or confederations. No state may, without the consent of Congress, make agreements or conventions with another state or with a foreign power.
The Russian Federation is a democratic federal state, which consists of republics, territories, regions, cities of federal significance, an autonomous region, autonomous districts - equal subjects of the Russian Federation. The republic within the Russian Federation has its own constitution and legislation. Territory, region, federal city, autonomous region, autonomous district have their own charter and legislation. According to paragraph "k" Art. 71 The Constitution of 1993 is under the jurisdiction of the Russian Federation:
foreign policy and international relations of the Russian Federation, international treaties of the Russian Federation; issues of war and peace;
foreign economic relations of the Russian Federation;
defense and security;
determination of the status and protection of the state border, territorial sea, airspace, exceptional economic zone and continental shelf of the Russian Federation.
Outside the limits of the jurisdiction of the Russian Federation and joint powers, the subjects of the Russian Federation have all the fullness of state power.
According to the federal law On the coordination of international and foreign economic relations of the constituent entities of the Russian Federation» 1998, the subjects of the Russian Federation, within the limits of the powers granted to them by the Constitution, federal legislation and agreements between state authorities of the Russian Federation and state authorities of the subjects of the Russian Federation on the delimitation of subjects of jurisdiction and powers, have the right to carry out international and foreign economic relations with subjects of foreign states, and also to participate in the activities of international organizations. Subjects of the Russian Federation, with the consent of the Government of the Russian Federation, may also carry out such relations with public authorities of foreign states.
Republics are not entitled to:
enter into relations with foreign states;
conclude intergovernmental agreements with them;
to exchange diplomatic and consular missions;
be members of intergovernmental organizations.
Republics may conclude international treaties on matters within their competence. However, in any case, these contracts should be of a secondary, derivative nature. They may contain norms that ensure the implementation of the relevant treaties of the Russian Federation. In order to ensure the implementation of such treaties, the republics may have their representations in foreign states that are not diplomatic institutions.
It is customary to refer to the category of derivative subjects of international law as special political-religious or political-territorial units that, on the basis of an international act or international recognition, have a relatively independent international legal status.
Such political-religious and political-territorial units in international law are called state-like entities.
State-like formations (quasi-states) are a special kind of subjects of international law that have some features (features) of states, but are not such in the generally accepted sense.
They are endowed with an appropriate amount of rights and obligations and thus become subjects of international law.
K.K. Gasanov identifies the following features of state-like formations:
1) territory;
2) permanent population;
3) citizenship;
4) legislative bodies;
5) government;
6) international treaties.
The question arises: why are state-like formations not among the primary ones?
The answer to this question is given by R.M. Valeev: state-like formations do not have such a property as sovereignty, because, firstly, their population is not a people, but part of a nation or representatives of various nations; secondly, their international legal capacity is severely limited; they do not have real independence in the international sphere. The appearance of such formations is based on international acts (treaties).
In the historical aspect, the “free cities”, West Berlin, are referred to as state-like formations, and at present the most striking examples are the Vatican and the Order of Malta.
The Free City is a self-governing political entity that has been granted an international legal status by an international treaty, allowing it to participate mainly in economic, administrative and cultural international legal relations.
The creation of a free city, as historical experience testifies, is usually the result of the settlement of the disputed issue of its belonging to one state or another.
In 1815, to resolve the contradictions between the great powers, the Treaty of Vienna declared Krakow a free city under the auspices of Russia, Austria and Prussia. In 1919, an attempt was made to resolve the dispute between Germany and Poland regarding Danzig (Gdansk) by granting it the status of a free city under the guarantee of the League of Nations. The external relations of the city were carried out by Poland.
To settle the claims of Italy and Yugoslavia regarding Trieste, the Statute of the Free Territory of Trieste was developed. The territory was to have a constitution, citizenship, a people's assembly, and a government. At the same time, the constitution and the activities of the government had to comply with the Statute, i.e. international legal act. In 1954, Italy and Yugoslavia divided the territory of Trieste between them.
state-like entity international law
Therefore, the highest legal act for it, as mentioned above, is an international treaty, which determines the special international legal personality of the city.
West Berlin had a unique international legal status in accordance with the Quadripartite Agreement of the USSR, Great Britain, the USA and France of September 3, 1971. These states retained the special rights and responsibilities in relation to West Berlin, which maintained official relations with the GDR and the FRG. The GDR government concluded a number of agreements with the West Berlin Senate. The German government represented the interests of West Berlin in international organizations and conferences, provided consular services to its permanent residents. The USSR established a consulate general in West Berlin. Due to the unification of Germany, formalized by the Treaty of the Final Settlement concerning Germany of 12 September 1990, the rights and responsibilities of the four powers with respect to West Berlin were terminated as it became part of the united Federal Republic of Germany.
The question of the international legal personality of the Vatican and the Order of Malta has a certain specificity. They will be discussed in more detail in the following sections of this chapter.
Thus, state-like entities should be classified as derivative subjects of international law, since their legal personality is the result of the intentions and activities of the primary subjects of international law.