The Vatican is a state-like entity. Legal personality of international (intergovernmental) organizations and state-like entities. Subjects of federal states

GPO is a special political-religious, historical or political-territorial unit, which, based on international act or international recognition has a relatively independent international legal status. General terms (general concepts) for denoting civil defense are free cities or free territories, free territories or zones.

GPOs are full-fledged subjects of international law; they receive their international legal personality by the direct expression of the will of states. These are self-governing entities that have been granted international legal status on the basis of a treaty. GPO has the right to participate in international public legal relations. The highest legal act for a GPO is an international treaty or an act of an international organization, which determines its special international legal personality.

The creation of the state public organization is predetermined by objective factors international order. As a rule, this is one of the most effective ways to freeze territorial claims. Essentially, the GPO is a kind of state with limited legal capacity. It may have its own constitution, government bodies, and armed forces (but of an exclusively defensive nature). The creators of the GPO usually develop a mechanism for monitoring compliance with its status. On international level The GPO is represented either by the state concerned or by an international organization. Such representation is not obligatory - GPO has the right to independently participate in the conclusion of international agreements, exchange official representations with other states, and make international claims. In international organizations and at international conferences they usually have observer status.

In the old international law, there was a fairly large number of free cities with a special international status: Venice, Novgorod, Pskov, Hamburg, Krakow. Modern international law shows a tendency to narrow the range of such subjects. In 1918–1945 The free city of Danzig (now Gdansk), a disputed territory between Poland and Germany, had the status of a civil defense organization. Danzig received GPO status in order to freeze territorial claims in accordance with the provisions of the Versailles-Washington treaty system. In 1945, following the results of World War II, it was transferred to Poland.

In 1947–1954 The free territory of Trieste had the status of a state settlement - the subject of territorial disputes between Italy and Yugoslavia. Created on the basis of the Peace Treaty with Italy in 1947. Was under the protection of the UN Security Council. In 1954 it was peacefully divided between Italy and Yugoslavia.

In 1945–1990 West Berlin had a unique special international legal status (based on the Agreement between Great Britain, the USSR, the USA and France in 1971). These states had special rights and bore special responsibilities regarding the status of West Berlin. The German government represented the interests of West Berlin in international organizations and at international conferences, and provided consular services to its citizens. In 1990, after the reunification of Germany, the 1971 Agreement was terminated, since West Berlin became part of the territory of the Federal Republic of Germany.

In 1947, a UN General Assembly resolution was adopted that provided for a free city regime for Jerusalem, but this decision has not been implemented to this day. In 2005, the Vatican called global community Grant Jerusalem special status as a city under international protection.

Currently, the main GPO with a specific international legal status is the Vatican (Holy See). The Vatican is a city-state, residence, administrative center catholic church. It has been recognized as a city-state and a subject of international law since 1929 (based on the Treaty with Italy). It has a specific international legal personality - this is the legal personality of the Holy See, and not the Catholic Church as a whole.

The Vatican has almost all the external attributes of a state - territory, population, citizenship, and has its own authorities and administration. However, this is not a state in the sense of a social mechanism for managing society. This is the administrative center of the Catholic Church. The Vatican maintains diplomatic relations with more than 80 countries of the world (including the Russian Federation). The Vatican has observer status at the UN and is a member of many specialized institutions UN (IAEA, ILO, UPU, FAO, UNESCO). Participates in many universal multilateral conventions and bilateral treaties with states (concordats - agreements on the status of the Catholic Church in any state).

A Vatican passport is equivalent to a diplomatic one. To receive it, you need to become a cardinal or legate of the Pope. Citizens of the Vatican either live and work permanently in the Vatican itself, or are abroad on a diplomatic mission on Catholic Church affairs. The privilege of being a citizen of the Vatican depends on a direct and permanent relationship with the Papacy. When communication is interrupted, Vatican citizenship is lost. Only one person cannot break this connection until his death: the Pope. He has passport number one, he is the absolute ruler of the Vatican State and the sole authority of the Catholic Church.

The Holy See is actively involved in international life, in the fight for human rights. In 1965 it was adopted Nostra Aetate– Declaration of the Vatican renouncing the accusation that Jews are responsible for the crucifixion of Christ. In 2005, the head of Israel visited the Vatican, and in 2006, the Pope returned to Israel. At the VII Conference on the Revision of the Treaty on the Non-Proliferation of Nuclear Weapons (2005), the Permanent Representative of the Vatican to the UN noted that countries possessing nuclear weapons do not comply with their commitments to complete disarmament; The clandestine production of nuclear weapons is growing, which risks falling into the hands of terrorists.

The Order of Malta is another active GPO in the modern world. This is an official historical and religious formation with internationally recognized charitable functions. The Order of Malta, first called the Order of San Juan, was created in 1050 in Palestine to assist travelers visiting the Holy Land. After the expulsion of the crusaders in 1187, the Knights of Malta were forced to wander around the Mediterranean countries until the Spanish monarch gave them the island of Malta. The Order of Malta was recognized as a subject of international law and sovereign on international congresses in Aachen in 1818, in Verona in 1822, in negotiations with Greece in 1823–1828. and with Italy in 1912–1922. The official purpose of the Order of Malta is charitable and historical and archival activities. It has diplomatic relations with more than 80 countries of the world (including Russia). Pope Benedict XVI is a member of the Order of Malta.

The Order currently consists of six Grand Priories: in Rome, Venice, Sicily, Austria, Bohemia and England; three sub-priorities (united Silesia and Rhine-Westphalia, Ireland and Spain) and 54 national associations and order organizations (including in Russia). The Order has more than 10 thousand members and carries out more than 150 projects in 35 countries. Under the Grand Master of the Order, an Auxiliary Commission was created for the provision of medical and humanitarian aid. Several hundred hospitals of the Order are located throughout the world (the Order is one of the largest hospital organizations). It has observer status at the UN. Representatives of the Order participate in the work of the EU Commission, Council of Europe, UNESCO, FAO, IATA, UNIDO and others international organizations.

In 2004, an agreement was signed between the government of the Republic of Malta and the Sovereign Order of Malta to provide the Order with one of the fortresses on the territory of Malta as an extraterritorial headquarters. Having received its own territory, the Order of Malta became the smallest city-state in the world (after the Vatican).

State-like entities are not typical subjects of international law, since their number is unstable and there are often situations where such entities are absent in the international arena. However, this does not exclude the possibility of the emergence of new GPOs in the modern world, primarily for the purpose of peaceful resolution of territorial disputes. It seems that at present it is advisable to give such a status to the Southern Kuril Islands.

UDK 342 BBK 67

LEGAL SYSTEMS IN STATE-LIKE ENTITIES

Vitaly Vasilievich Oksamytny,

supervisor Science Center Comparative Law, Head of the Department of Theory and History of State and Law

Institute of International Law and Economics named after A.S. Griboedova, Doctor of Law, Professor, Honored Lawyer of the Russian Federation

Email: [email protected]

Scientific specialty 12.00.01 - history of doctrines about law and state

Citation index in electronic library NIION

Annotation. The problems associated with the content of legal systems in state-organized entities other than states are considered - unrecognized states, territories with associated statehood, dependent territories.

Key words: legal system, state, state-like entities, unrecognized states, territories with associated statehood, dependent territories.

LEGAL SYSTEMS IN STATE-LIKE FORMATIONS

Vitally V. Oksamytnyy,

Doctor of Law, Professor, Honored Lawyer of the Russian Federation, Head of the Scientific Center of Comparative Law, Head of the Department of Theory and History of State and Law of the A.S. Griboedov Institute of International Law and Economics

Abstract. In article the author deals with problems related to the content of legal systems in state-organized entities other than the state - unrecognized states, territories with associated statehood, dependent territories.

Keywords: legal system, state, state-like formations, unrecognized states, territories with associated statehood, dependent territories.

The state-legal map of our time indicates that the system-forming processes of formation, consolidation and development of statehood, which began thousands of years ago in the depths of tribal society, are far from complete.

IN special sources indicate the existence on the modern world map of more than 250 different countries1, of which about 200 are recognized as independent states. The latter have sovereign territorial and personal supremacy, are recognized by the entire international community and, as such, are full member states of the United Nations2.

1 See, for example, the All-Russian Classifier of Countries of the World (OKSM) // URL: http//www.kodifikant.ru.

2 Members of the United Nations. // URL: http:// www.un.org./ru/members.

At the same time, highlighting the fundamental category of the modern world, one should distinguish between the often confused and often used as synonymous concepts - “state”, “country”, “state-like entities”, “quasi-state”, “state organized societies (communities)”. The concept of “country” rather refers to historical, cultural, general geographic (common territory), other factors (features of residence and the established culture of the population, brought in by the language of communication, customs, traditions, mentality, religion) and, because of this, is less official in nature.

It is quite possible that colonial possessions are also called a country, or one country could be represented by two or more state entities.

In particular, Germany from 1949 to 1990 consisted of the German Democratic Republic, the Federal Republic of Germany and a “special political unit” - West Berlin, which had its own power structures and even a 1950 constitution.

Yemen as a country was divided for three decades and consisted of the Yemen Arab Republic proper and the People's Democratic Republic of Yemen, until it was also united in 1990 into a single state - the Republic of Yemen.

The "temporary" division of Vietnam following the Geneva Convention of 1954 resulted in the existence of two states - the Democratic Republic of Vietnam and the State of Vietnam until their forced unification in 1976 as the Socialist Republic of Vietnam.

After World War II, Korea was divided along the 38th parallel northern latitude into two zones of military responsibility - Soviet and American, and in 1948 on the territory of these zones arose: the Korean People's Republic Democratic Republic in the north of the once united state and the Republic of Korea in the south of the country, etc.

Differences in the understanding and application of these concepts exist, in particular, in European languages. So, in English language- with the words “country”, which is closer to the concept of “country”, and “state” (state). At the same time, in a certain context, as in the Russian language, they can act as interchangeable.

The realities of the modern world include, in particular, situations in which a number of entities with elements of statehood, challenging their belonging to the “mother countries,” claim to create their own states and consider themselves as such.

There are still remnants of the colonial system, which in the era of political correctness are usually called within the framework of statistics adopted by the UN, dependent territories. More than 40 territorial possessions, dependent or "self-governing" territories, are scattered across the spaces of the Earth. And most of them, having certain independent legal

powers, insist on granting them special state status.

In addition to countries declaring their actual or imaginary independence, there are other state-organized entities in the world that have almost most of the characteristic features of a state, with the exception of such a defining feature in the modern era as international recognition.

Among them, a special place is occupied by state-organized entities that claim complete independence, but are considered so-called unrecognized states, states in the making, and quasi-states.

There are dozens of similar formations, both in recent history and today3. Everyone has their own destiny and place in the world state-organized community.

The reasons for their appearance can be either revolutionary upheavals, protracted interfaith and interethnic conflicts, national liberation struggles and the desire of individual parts of a complex state for independence and autonomy.

They may be supported by like-minded people in other countries, recognized by neighbors or influential powers, or remain under political, economic or military blockade for decades. And at the same time, maintain order on its own territory, carry out government, fiscal and other functions, that is, have its own legal system.

The rule of law is formed on the basis of the functioning of all components the mechanism of action of law (and it practically includes both “fixed” elements (for example, sources of law), and the processes of lawmaking, law implementation and legal interpretation). And therefore, the establishment of a legal order as the goal of a legal system presupposes consideration of the latter both statically and dynamically, which makes it possible to include in the content of the legal system the totality of its elements and the connections between them.

3 Modern unrecognized states and countries of the world // URL: http://visasam.ru/emigration/vybor/nepriznannye-strany.html

The interpretation of the components of the legal system proposed below, taking into account the comparative studies carried out in legal science, draws attention to the sequence of manifestation of its structural parts and the relationship between them, considering them as universal categories characteristic of almost all state-organized societies:

Law in all its manifestations in public life (natural and positive, legitimate and legislative, subjective and objective, ordinary and formal, official and shadow, etc.);

Legal understanding in the totality of dominant legal doctrines society, the level and characteristics of the legal thinking of the people;

Lawmaking as a cognitive and procedurally fixed way of preparing, formalizing and adopting generally binding rules of behavior in society;

Sources of law as official legal documents and/or provisions containing general mandatory rules behavior in a state-organized society;

A legal body that includes legislation in force in a state-organized society as a system of officially established and interrelated regulations general meaning;

Legal institutions created in a state-organized society for the functioning of its legal system (law-making, law enforcement, human rights, law enforcement);

The mechanism for the implementation of law, in which the processes of its implementation are concentrated (legal relations, legal facts, legal implementation, resolving gaps in the law, resolving legal conflicts, interpretation of law);

The results of the operation of law, which consist in the establishment of a legal order in a state-organized society, determined by the regime of legality and the legal culture of its subjects.

Among modern state-like entities that are not members of the UN, but pretend to be

qualifying for official state status and in a number of cases recognized by some UN member states, the following are distinguished:

Partially recognized states that are in the process of creation (these include Palestine, whose international legal status is defined as “an observer state at the UN that is not a member”);

Partially recognized states that actually control their territory (these include Abkhazia, Kosovo, Northern Cyprus (“Turkish Republic of Northern Cyprus”), Taiwan (“Republic of China”), South Ossetia);

Partially recognized states that control part of their territory (for example, Palestine, Sahrawi Arab Democratic Republic);

Unrecognized state entities that actually control their territory (in particular, the Transnistrian Moldavian Republic, the Nagorno-Karabakh Republic (Artsakh), the Donetsk People's Republic, Somaliland);

Unrecognized proto-state entities that control part of the territory they claim (such a quasi-state includes ISIS (Daesh), an Islamist-Sunni terrorist organization with a Sharia form of government banned in many states, which forcibly holds part of the territory of Syria and Iraq). Self-proclaimed state-like structures have almost all the attributes state power, including legislative representative and law enforcement institutions. Significant difference their independence from sovereign states lies precisely in their international legal status, which does not allow such entities to be considered full-fledged parts of the world community.

Often their legal systems are qualitatively different from the states they are formally supposed to be part of, and this gap continues to widen.

Thus, before the actual self-separation of the Pridnestrovian Moldavian Republic from Moldova, a law was in force on the territory of the PMR

Dating of the Moldavian SSR, later - SSR Moldova. Since September 2, 1990 (the day of the unilateral declaration of independence of Transnistria), their legal systems began to develop independently of each other and the difference between the “mother” and breakaway legal systems is increasingly increasing.

If the new law of the Republic of Moldova is guided by the traditions of the Romanesque legal family of continental (European) law, then the legislation of Transnistria, from the moment of declared statehood, generally followed the Russian model. The literature states, in particular, that “the peculiarity legal regime territories of the PMR are a significant limitation (almost absence) of the influence of the legal system of Moldova and the action on the territory of the Left Bank of Transnistria, in addition to the laws of the PMR, the laws of the USSR and the laws of the Russian Federation refracted through acts of the bodies of the PMR (without any official initiative of Russia).”

In November 1983, in the northeastern part of the island of Cyprus, occupied by Turkish armed forces, the Turkish Republic of Northern Cyprus (in 1975-1983 - the Turkish Federative State of Cyprus), currently recognized only by Turkey, was proclaimed. Despite international isolation, this territory is trying to implement its own state and legal policy, creating the structures of its own legislative, executive and judicial powers within the framework of a closed legal system focused on the principles and institutions of Turkish law4. Moreover, on maps published in Turkey and Northern Cyprus, it is this part of the island that is called the state, while the southern part is Cyprus proper (a UN member state and European Union) only by the “Greek Administration of Southern Cyprus”.

Such unrecognized states with their own law-making bodies and legislation can exist for decades. In particular, the current legal system of Taiwan, an island that its authorities officially call the “Republic of China,” has been

4 Legal system of Cyprus. URL// http://cypruslaw.narod.ru/legal_system_Cyprus.htm.

It is the “successor” of the legal system of continental China, based on the principles and institutions of the German legal family of continental (European) law, with the presence of some elements of Anglo-American law. Historically, the legal consciousness and legal culture of the island's population is to a certain extent influenced by the Confucian traditions of the Chinese.

Mainland China believes that Taiwan should recognize the PRC and, according to the formula “peaceful unification and one state, two systems,” become a special administrative region of China under the jurisdiction of a single government, receiving the right to a high degree of self-government while preserving its social system. In 2005, the Law of the People's Republic of China on counteracting the division of the country was adopted. In Art. 2 of the document especially emphasizes: “there is only one China in the world, located on the mainland and on the island of Taiwan. China's sovereignty and territorial integrity extend equally to its mainland and Taiwan."

However, as the authors of the study of the political system and law of the PRC note, Taiwan, while remaining legally a province of China, continues to be “a virtually independent state entity that has appropriated the name, constitution and attributes of state power of the Republic of China of 1912-1949.”

While the People's Republic of China, based on the ideas of Mao Zedong and Deng Xiaoping, is building a “socialist constitutional state with Chinese characteristics”, the Constitution of the Republic of China of 1947 (with subsequent amendments and additions) continues to be in force in Taiwan. In accordance with it, the highest representative body is the National Assembly, which decides constitutional issues and elects the president and vice-president. There are also separate Legislative and Judicial Chambers, which are engaged in the development of new laws and amendments to the Constitution, and the Executive Chamber - the government. Many codes have been developed under strong influence German, Swiss and Japanese law and were put into effect in the 20-30s of the last century. These laws were subsequently modified and consolidated into Lufah

quanshu - “The Complete Book of Six Laws”, which includes legislative norms, grouped into the following branches: constitutional, civil, civil procedural, criminal, criminal procedural and administrative law.

Both the Constitution and the basic codes of Taiwan have undergone certain changes following changes in this entity after isolation in the international arena. The military-authoritarian regime gradually faded into oblivion, opposition parties began to emerge, and currently Taiwan's political system has acquired more democratic features. In particular, the powers of the president are increasing while the role of the Legislative Chamber, which has received the function of control over the activities of the government, is increasing.

A typical example of a territory with a transitional regime is the Palestinian National Autonomy, which has been in the process of gaining independence for a relatively long time. After World War I, Palestine was a territory administered by Great Britain under a mandate received from the League of Nations (1922-1948). On November 29, 1947, the General Assembly of the United Nations adopted a resolution on the creation of two states in Palestine - Jewish and Arab. The latter, for a number of reasons, was never created.

In 1988, the Palestinian National Council proclaimed the formation of a Palestinian state in the Israeli-controlled territories of the West Bank and Gaza Strip. The United Nations General Assembly recognized this statement and decided to refer to the Palestine Liberation Organization as "Palestine" without prejudice to its observer status with the UN. Five years later, Israel and the Palestine Liberation Organization signed a Declaration of Principles for an Interim Settlement in Washington, providing for the creation of interim Palestinian self-government. The latter began to be implemented (inconsistently and with great obstacles) in subsequent years within the framework of the Palestinian National Autonomy. In 2012, the UN General Assembly

gave Palestine "non-member observer State status with the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people in accordance with relevant resolutions and practice."

The creation in this entity of the post of president as the head of a self-governing territory, the government as an executive body, the parliament - the Palestinian Legislative Council (Palestinian Autonomy Council) as a body with certain legislative powers in areas that have come under Palestinian control, indicate the formation of its own authorities and management and, as a consequence, the legal system. Its foundations are based on Islamic concepts and classical institutions of modern Islamic law.

Of interest for comparative legal research are such legal phenomena as self-governing parts of the state, which historically have a special status, that is, practically functioning within the framework of their own legal system.

Yes, Art. 105 of the Constitution of the Hellenic Republic declares “the region of Holy Mount Athos, by virtue of its ancient privileged status, ... a self-governing part of the Greek state”, which “in accordance with this status is governed by the twenty Holy monasteries located on it, between them the entire peninsula of Athos is divided, the territory which is not subject to compulsory alienation." The functions of the state listed in the article are carried out by the administrator (Holy Kinot). The monastic authorities and the Holy Church in the territory of the so-called “Monastic Republic” also exercise judicial power, customs and tax privileges (Greek Constitution of June 11, 1975).

During the existence of the United Nations since 1945, about 100 territorial entities whose peoples were previously under colonial or other external board, became sovereign states and

received membership in the UN. In addition, many other territories have achieved self-determination through political unification or integration with independent states.

At the same time, despite the significant progress achieved in the process of decolonization, there are about 40 territories in the world that are under the external control of a number of states. They are also called territories with a transitional or temporary, “since we are talking in advance about the inevitable termination of the existing status” legal regime.

Most of the territories do not have their own state-organized structure and are classified, according to the United Nations classification, as non-self-governing territories. Among them: American Samoa, New Caledonia, Gibraltar, Falkland Islands (Malvinas), Guam, Cayman Islands, Virgin Islands, Bermuda, etc. Public powers over them are exercised by the so-called governing states, which are currently Great Britain, New Zealand, the United States and France. However, even under such conditions, such entities have the authority to organize and maintain law and order.

As an example, let us cite the Falkland Islands (Malvinas) - an archipelago in the South Atlantic, over which Great Britain exercises control as its overseas territory. The Falklands are led by an English governor who is accountable to his government and the British Crown. However, the practical administration of the islands is carried out by the Legislative Council (8 of the 10 members are elected by the population) and the Executive Council (3 of the 5 council members are elected by the legislature).

However, there are also examples of dependent territorial structures that have their own representative and administrative institutions, including legislative and judicial institutions, making regulatory decisions and implementing them throughout the entire educational space and in relation to the entire population. They are called territories with associated statehood, whose statuses imply a broad framework

self-government within the framework of political connection with the metropolis.

In particular, countries that independently exercise internal governance include, for example, the Pacific island of Niue, officially referred to as a “self-governing state entity in free association with New Zealand,” as well as the Caribbean island of Puerto Rico as an “unincorporated organized territory” .

The former Spanish colony of Puerto Rico became a possession of the United States at the end of the 19th century. Subsequently, this island in the Caribbean de facto lost the regime of a non-self-governing territory, receiving from the metropolis the status of a “state freely associated with the United States of America.” This provision was enshrined in the Constitution of Puerto Rico, adopted on July 25, 1952. In accordance with it, the supreme legislative power belongs to the US Congress, which is responsible for matters of foreign policy, defense, approval of laws, etc.

Regional power within the framework of autonomy is exercised by a bicameral Legislative Assembly directly elected for a term of 4 years. The Puerto Rican Parliament is represented in the US House of Representatives by a Resident Commissioner with the right to initiate legislation, but without the right to vote. Executive power is exercised by the governor, elected since 1948 by Puerto Ricans for a 4-year term. The Governor is the Commander-in-Chief of the armed militia and heads the Government Advisory Council, which includes 15 ministers appointed by him.

The people of Puerto Rico are granted broad self-government through their own legislative, executive and judicial bodies. This indicates the functioning of this territorial entity with its own legal system, which, in many respects, differs from the legal systems of common law countries to which the United States belongs. The rules of civil law in force in the “acceding state” are drawn up according to the Spanish model, and the procedural

and most other legal norms follow Latin American models.

A presidential commission specially created in the United States on the status of Puerto Rico recommended granting the island's residents the right to self-determination. However, the 2017 referendum, already the fifth in the last half century, again demonstrated that, given three options to choose from (maintain the status quo, become an independent state, ask the US Congress to join), citizens of Puerto Rico do not seek to obtain complete independence. Only 3 percent of Puerto Ricans going to the polls support the demand for independence. The overwhelming majority of citizens voted to change the political status of the island by fully joining the United States as the 51st state5.

Appeal to various manifestations in the world reality of the legal system, which combines all legal phenomena, institutions and processes in a state-organized society, testifies in favor of the conclusion that its consideration is limited only within state limits. The legal system as a political and legal phenomenon reflects the diversity of modern

5 Referendum in Puerto Rico. // URL: https://www.pravda.ru/world/northamerica/Caribbeancountries.

new state and legal map of the modern world, requiring closer attention.

Literature

1. Oksamytny V.V. State-legal map of the modern world: Monograph. Bryansk: BSU Publishing House, 2016.

2. Oksamytny V.V. General theory of state and law: Textbook. Ed. 2nd, revised and additional M.: UNITY-DANA, 2015.

3. Oksamytny V.V., Musienko I.N. Legal systems of modern state-organized societies: Monograph. M.: Publishing house of Moscow University of the Ministry of Internal Affairs of the Russian Federation, 2008.

4. Baburin S.V. The world of empires: state territory and world order. M.: Master: INFRA-M, 2013.

5. Comparative law: national legal systems. T. 3. Legal systems of Asia. / Ed. IN AND. Lafitsky. M.: IZiSP; Legal Kontrakt company, 2013.

6. The political system and law of the PRC in the process of reform. / Hand. auto coll. L.M. Gudoshnikov. M.: Russian Panorama, 2007.

7. Basic facts about the United Nations: UN Department of Public Information. Per. from English M.: Publishing house "Ves Mir", 2005.

Constitutional law of Russia

Constitutional law of Russia: a textbook for university students / [B.S. Ebzeev and others]; edited by B.S. Ebzeeva, E.N. Khazova, A.L. Mironov. 8th ed., revised. and additional M.: UNITY-DANA, 2017. 671 p. (Series “Dura lex, sed lex”).

The new, eighth, edition of the textbook has been updated taking into account latest changes in Russian legislation. Issues traditionally related to the subject of science are considered constitutional law: constitutional foundations of civil society, legal mechanisms for the protection of human and civil rights and freedoms, federal structure, system of state authorities and local self-government in the Russian Federation, etc. Much attention is paid to the electoral system in Russia. Reflects legislative norms on the merger of arbitration courts with Supreme Court RF.

For students of law universities and faculties, graduate students (adjuncts), teachers, practitioners, as well as for everyone interested in the problems of domestic constitutional law.

Under the state In international law, a country is understood with all the inherent characteristics of a sovereign state. 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 characteristics of a 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:

resident population;

certain territory;

government;

ability to enter into relations with other states.

The most important features of a 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 a state on its territory and its independence in the sphere of international relations. Only states have this property, which predetermines their main characteristics as the main subjects of international law. Sovereignty is the foundation of all fundamental rights of a state.

Any state has sovereignty from the moment of its establishment. Its international legal personality does not depend on the will of other subjects. It ceases only with the cessation 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 unrecognized state has the right to defend its integrity and its independence, to take care of its safety and prosperity and, as a consequence of this, to organize itself as it pleases, to legislate regarding its interests, to manage its departments and to 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 have not only 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 consolidated and guaranteed by generally recognized norms and principles of international law. According to the Final Act of the Conference on Security and Cooperation in Europe of 1975, states are obliged to respect the territorial integrity of each participating state. Accordingly, they refrain from any action inconsistent with the purposes and principles of the UN Charter, against territorial integrity, political independence or unity of any state.

States parties to the Final Act consider all borders as inviolable each other, as well as the borders of all states in Europe, so they will refrain now and in the future from any encroachment on these borders. They shall also refrain from any action aimed at seizing or usurping part or all of the territory of any participating State.

Population is a permanent feature of the state. According to the UN Charter, the Declaration on the Granting of Independence to Colonial Countries and Peoples 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 establish their political status and freely pursue their economic, social and cultural development. In accordance with the Declaration of 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 power is one of the main features of the state. In international law, it is the bearer of organized sovereign power. Whatever the 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 authority whatsoever capable of prescribing legally binding rules of conduct for them. The norms of international law regulating relations between states in the sphere of international communication are created by the states themselves through their agreement (harmonization of wills) and are aimed at strict compliance state sovereignty in international relations. Respect for the sovereignty of any state, recognition sovereign equality of all states are among the fundamental principles of modern international law. According to the Declaration of Principles of International Law, all states enjoy sovereign equality. They have the same rights and obligations and are equal members of the international community, regardless of differences of economic, social, political or other nature.

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;

Each state is obliged to comply fully and conscientiously with its international obligations and live in peace with other states.

Any state is obliged 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 subordinate 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 internal independence, but, as a rule, do not have the constitutional right to independently participate in external relations, and therefore 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, alliances or confederations. No state shall, without the consent of Congress, enter into any treaty or convention 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, autonomous regions, autonomous districts - equal subjects of the Russian Federation. The republic within the Russian Federation has its own constitution and legislation. A territory, region, city of federal significance, autonomous region, autonomous district have their own charter and legislation. According to paragraph "k" Art. 71 The 1993 Constitution governs 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 jurisdiction of the Russian Federation and joint powers, the subjects of the Russian Federation have full state power.

According to the Federal Law " On coordination of international and foreign economic relations of constituent entities of the Russian Federation» 1998, subjects of the Russian Federation, within the powers granted to them by the Constitution, federal legislation and agreements between government bodies of the Russian Federation and government bodies of subjects of the Russian Federation on the delimitation 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, can carry out such communications with government bodies of foreign states.

Republics have no right:

enter into relations with foreign states;

conclude intergovernmental agreements with them;

exchange diplomatic and consular missions;

be members of intergovernmental organizations.

Republics may conclude international treaties on issues within their competence. However, in any case, these agreements must be of a secondary, derivative nature. They may contain rules ensuring the implementation of relevant treaties of the Russian Federation. In order to ensure the implementation of such treaties, republics may have their representative offices in foreign states that are not diplomatic institutions.

International legal personality other participants in international relations (TNCs, INGOs, individuals, humanity), including state-like entities

Legal personality of state-like entities

In international law, in accordance with interstate treaties in the past and currently, a special international legal status is provided for some political-territorial (state-like) entities. In accordance with such international treaties, these entities are endowed with certain rights and responsibilities and thereby become subjects of international legal regulation. Their international legal personality is determined by the fact that they are able to independently, independently of states and other subjects of international legal communication, implement established legal rights and responsibilities. The corresponding international legal capacity is determined by the provisions of these treaties, and in some cases by customary rules of law. These include:

• 1) free cities. In the past they had a special international legal status. Thus, according to the Vienna Treaty of 1815, Krakow was proclaimed a “free, independent and completely neutralized” city (existed until 1846). The Versailles Peace Treaty of 1919 established the special international legal status of the “free state” of Danzig (1920–1939). The peace treaty with Italy in 1947 provided for the formation of the “Free Territory of Trieste” (practically it was not formed; parts of it became part of Italy and Yugoslavia);
• 2) West Berlin – also had a special international legal status. The main international legal act regulating its international legal position was the quadripartite agreement between the USSR, USA, Great Britain and France dated 09/03/197 i. According to the agreement, the western sectors of the city were united into a special political entity with their own authorities (Senate, prosecutor's office, etc.), to which part of the state powers were transferred. A number of powers were exercised by the allied authorities of the victorious powers. The interests of the city population in international relations were represented and protected by German consular officials. West Berlin's status ended in 1990;
• 3) Vatican - the residence of the head of the Catholic Church (the Pope) in a special region of Rome, sometimes called a city-state. Its legal status is determined by a 1984 agreement between Italy and the Holy See. The Vatican maintains external relations with many states, in particular with Catholic countries; he establishes his permanent missions in them, headed by papal nuncios or legates. The Vatican participates in many international conferences and is party to many international agreements. In addition, it is a member of a number of universal international organizations (UPU, IAEA, ITU, etc.), and has permanent observers at the UN, ILO, UNESCO and some other organizations.

The problem of the international legal personality of an individual

For a long time, domestic science denied the quality of international legal personality to individuals. The situation changed during the period of “perestroika” in the USSR, when many scientists began to call for a revision of this point of view. The fact is that states, as the main subjects of international law, are increasingly, by coordinating their wills, creating norms aimed not only at regulating their mutual relations, but also norms addressed to other individuals and entities. These norms may be addressed by INGOs, individual international bodies(commissions, committees, judicial and arbitration bodies), employees of the MMPO, i.e. persons and entities that do not themselves have the capacity to create rules of international law.

Although most of the norms aimed at influencing the legal status of the individual are directly addressed to states and oblige them to provide individuals a certain set rights and freedoms, in some cases related to the activities of international human rights bodies, international legal norms directly determine the morals and responsibilities of an individual.

More complicated, of course, is the situation with the international legal personality of individuals in relation to international documents in the field of human rights in cases where the individual cannot directly speak before international bodies.

Of course, most often the norms of international law aimed at regulating the behavior of individuals or legal entities - subjects of domestic law, do not apply to them directly, but indirectly by the norms of national law. However, in a number of cases, rights and obligations under international law are directly conferred on persons and entities that do not have the ability to create norms of international law.

In fact, the range of persons and entities that are the subject of international law depends on what definition of the subject of international law is given. If subjects of international law are defined as “entities independent from each other, not subordinate in the field of international relations to any political power", having the legal ability to independently exercise the rights and obligations established by international law", then individuals and legal entities, as well as INGOs do not have the quality of international legal personality. If, however, all persons and entities are considered as subjects of international law - bearers of rights and obligations directly in force of the norms of international law, then it will be necessary to recognize individuals as subjects of international law, including employees of international international organizations, a certain circle of legal entities, INGOs, and various international bodies.

Most likely, in international law we should talk about two categories of subjects. The first includes those who have rights and obligations directly arising from the norms of international law, and themselves directly participate in the creation of these norms and in ensuring their compliance. These are, first of all, states, as well as peoples and nations exercising their right to self-determination, MMPO. The second category includes individuals, INGOs, a number of international economic associations (IEOs), and international bodies (commissions, committees, judicial and arbitration bodies). They, having a certain rather limited range of rights and obligations under international law, do not themselves directly participate in the process of creating norms of international law.

• International law: textbook / ed. G.I. Tunkina. M., 1982. P. 82.

Some political-territorial entities 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 entities most resemble mini-states and have almost all the characteristics of a state, they are called “state-like formations.”

The legal capacity of free cities was determined by relevant international treaties. Thus, according to the provisions of the Vienna Treaty of 1815, Krakow (1815-1846) was declared a free city. According to 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 of 1947, the creation of the Free Territory of Trieste was envisaged, which, however, was never created.

West Berlin (1971-1990) enjoyed a special status granted by the 1971 Quadripartite Agreement on West Berlin. In accordance with this agreement, the western sectors of Berlin were united into a special political entity with their own authorities (Senate, prosecutor's office, court, etc.), to which some powers were transferred, for example, the publication 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 protected by German consular officials.

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 (the Vatican also has a representative office in Russia), headed by papal nuncios (ambassadors), participates in international organizations, 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 treaties, exchanges representations with states, and has observer missions to the UN, UNESCO and a number of other international organizations *.

International legal status of the 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 as having the right to act in international relations within the framework established by federal legislation.

The German Constitution, for example, provides that the states, with the consent of the federal government, can enter into treaties with foreign states. Norms of similar content are enshrined in the law of some other federal states. Currently, 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 participating in international relations.

International activity subjects of foreign federations is developing in the following main directions: concluding international agreements; opening representative offices in other countries; participation in the activities of some international organizations.

The question arises: Are there any rules in international law on the international legal personality of the 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 emergence.

Issues of conclusion, execution and termination of treaties by states are regulated primarily by the Vienna Convention on the Law of international treaties 1969 Neither the 1969 Convention nor other international documents provide for the possibility of independent conclusion of international treaties by federal subjects.

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 a state and a large foreign enterprise are not such. In order to be a subject of the law of international treaties, it is not enough to be a party to one or another 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 constituent entities of the Russian Federation.

International legal status of the subjects of the Russian Federation

As is known, the Constitution of the USSR of 1977 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 representations 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) entities. This problem acquired particular significance with the adoption of the new Constitution of the Russian Federation in 1993 and the conclusion of the Federal Treaty. Today, some constituent entities of the Russian Federation declared their international legal personality.

Subjects of the Russian Federation are trying to act independently in international relations, enter into agreements with subjects of foreign federations and administrative-territorial units, exchange representations with them and enshrine the corresponding provisions in their legislation. The Charter of the Voronezh Region of 1995, for example, recognizes that organizational and legal forms international relations areas are forms generally accepted in international practice, with the exception of treaties (agreements) at the interstate level. Taking part in international and foreign economic relations independently or with other constituent entities of the Russian Federation, the Voronezh region opens representative offices on the territory of foreign states to represent the interests of the region, which operate in accordance with the legislation of the host country.

The regulations 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 Charter of the Voronezh Region of 1995 establishes that international treaties of the Voronezh Region are part of the legal system of the region. Norms of similar content are fixed in Art. 6 of the Charter Sverdlovsk region 1994, art. 45 of the Charter (Basic Law) of the Stavropol Territory 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, some constituent entities of the Russian Federation have adopted regulations governing the procedure for concluding, executing and terminating contracts, for example, the law of the Tyumen region “On international agreements of the Tyumen region and agreements of the Tyumen region with constituent entities of the Russian Federation” was adopted in 1995. The law of the Voronezh region “On legal regulations Voronezh Region" of 1995 establishes (Article 17) that regional government bodies have the right to conclude agreements, which are normative legal acts, with government bodies of the Russian Federation, with constituent entities of the Russian Federation, with foreign states on issues of their common, mutual interest .

However, statements by subjects of the Russian Federation about their international contractual legal capacity do not mean, in my deep conviction, the presence of this legal quality in reality. An analysis of the relevant legislation is required.

Federal legislation does not yet address this issue.

According to the Constitution of the Russian Federation (clause “o”, part 1, article 72), coordination of international and foreign economic relations of the constituent entities of the Russian Federation is the joint responsibility of the Russian Federation and the constituent entities of the Federation. However, the Constitution does not directly speak about the possibility of constituent entities of the Russian Federation to conclude agreements that would be international treaties. The Federative Treaty does not contain such norms.

the federal law“On International Treaties of the Russian Federation” of 1995 also places the conclusion of international treaties of the Russian Federation under the jurisdiction of the Russian Federation. It has been established that international treaties of the Russian Federation affecting issues within the jurisdiction of the constituent entities of the Federation are concluded in agreement with the relevant bodies of the constituent entities. At the same time, the main provisions of agreements affecting issues of joint jurisdiction must be sent for proposals to the relevant bodies of the subject of the federation, which, however, do not have the right to veto the conclusion of an agreement. The 1995 law says nothing about agreements between 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” of July 21, 1994 establishes rules on verifying the constitutionality of international treaties of the constituent entities of the Federation, although such a procedure is provided for in relation to 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 the characteristics of international legal personality, however, we note that neither the Constitution nor the legislation of the Russian Federation has yet regulated this issue. These representative offices are not opened on the basis of reciprocity and are accredited with any government 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 constituent entities of the Russian Federation in international organizations. It is known that the charters of some international organizations (UNESCO, WHO, etc.) allow the membership of entities that are not independent states. However, firstly, membership in these organizations of subjects of the Russian Federation has not yet been formalized, and, secondly, this feature, as already mentioned, is far from the most important in the characteristics of subjects of international law.

Considering the above, we can draw the following conclusion:

Although at present the subjects of the Russian Federation do not fully possess all the elements of international legal personality, the tendency for the development of their legal personality and their registration as subjects of international law is obvious. In my opinion, this issue requires resolution in federal legislation.