Nations and peoples fighting for their liberation. International legal personality of peoples (nations)

Nations and peoples fighting for their independence can also be parties to an international treaty. They conclude agreements with states, most often on the formation of an independent independent state: on political support for the nation in its struggle for liberation from colonial dependence, on economic assistance, on the settlement of issues related to the granting of independence Ignatenko G.V. International law. - M. 2002 p.268.

The wide scope of the struggle of peoples for their independence, especially after the end of the Second World War, led to the formation of dozens of new independent national states - subjects of international law. However, even in the course of the battle for their state independence, the struggling nations create their national political bodies who embody their sovereign will. Depending on the nature of the struggle (non-peaceful or peaceful), these bodies can be different: the national liberation front, the liberation army, resistance committees, the provisional revolutionary government (including in exile), political parties, a territorial legislative assembly elected by the population, etc. But in any case, a nation, as a subject of international law, must have its own national political organization.

The treaty legal capacity of nations fighting for independence is part of their international legal personality. Every nation that is a subject of international law has the legal capacity to conclude international treaties. Contractual practice confirms this. So, for example, the Geneva agreements of 1954 on the cessation of hostilities in Indochina were signed along with representatives of the commanders-in-chief of the armed forces of the French Union and the People's Army Democratic Republic Vietnam representatives of the resistance movements of Laos and Cambodia. The Algerian nation had extensive treaty ties during the period of the armed struggle for independence, which, even before the formation of the Republic of Algiers, had not only its own armed forces, but also its own government. An example of international treaties with the participation of nations can be the Cairo agreements on the normalization of the situation in Jordan of September 27 and October 13, 1970. The first was multilateral and signed by the chairman of the Central Committee of the Palestine Liberation Organization and the heads of nine Arab states and governments. It provided for the cessation of all military operations by the conflicting parties, the withdrawal of Jordanian troops from Amman, and the withdrawal of the forces of the Palestinian resistance movement from the Jordanian capital. The second agreement was bilateral and was signed by the King of Jordan and the Chairman of the Central Committee of the Palestine Liberation Organization in pursuance of the mentioned multilateral agreement. On behalf of the Arab people of Palestine, the PLO signed many other international treaties Talalaev A.N. The Law of International Treaties: General Issues M. 2000 p.87.

It should be emphasized that a nation can enter into treaty international relationships regardless of one form or another of the colonial regime and from recognition by another state, including the mother country. The contractual legal capacity of a nation arises simultaneously with its international legal personality.

The legal personality of warring nations, like the legal personality of states, is of an objective nature, i.e. exists independently of anyone's will. Modern international law confirms and guarantees the right of peoples to self-determination, including the right to free choice and the development of their socio-political status.

The principle of self-determination of peoples is one of the basic principles of international law, its formation falls on late XIX- the beginning of the XX century. It acquired a particularly dynamic development after October revolution 1917 in Russia.

With the adoption of the UN Charter, the right of a nation to self-determination finally completed its legal registration as a basic principle of international law. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples specified and developed the content of this principle. Its content was most fully formulated in the Declaration on the Principles of International Law of 1970, which states: “All peoples have the right to freely determine their political status and to carry out their economic, social and cultural development without outside interference, and every state is obliged to respect this right in in accordance with the provisions of the UN Charter."

In modern international law there are norms confirming the legal personality of the struggling nations. Nations struggling to create an independent state are protected by international law; they can objectively apply coercive measures against those forces that prevent the nation from acquiring full international legal personality and becoming a state. But the use of coercion is not the only and, in principle, not the main manifestation of the international legal personality of nations. Only a nation that has its own political organization that independently performs quasi-state functions can be recognized as a subject of international law.

In other words, the nation must have a pre-state form of organization: popular front, the beginnings of authorities and administration, the population in the controlled territory, etc.

It must be borne in mind that international legal personality in own meaning not all, but only a limited number of nations can (and do) have this word - nations that are not formalized into states, but strive to create them in accordance with international law.

Thus, practically any nation can potentially become the subject of legal relations of self-determination. However, the right of peoples to self-determination was fixed in order to combat colonialism and its consequences, and as an anti-colonial norm, it fulfilled its task.

At present, another aspect of the right of nations to self-determination is acquiring special significance. Today we are talking about the development of a nation that has already freely determined its political status. In the current conditions, the principle of the right of nations to self-determination must be harmonized, consistent with other principles of international law and, in particular, with the principle of respect for state sovereignty and non-interference in the internal affairs of other states. In other words, it is no longer necessary to talk about the right of all (!) nations to international legal personality, but about the right of a nation that has received its statehood to develop without outside interference.

A struggling nation enters into legal relations with the state that controls this territory, other states and nations, and international organizations. By participating in specific international legal relations, it acquires additional rights and protection.

A distinction is made between the rights that a nation already possesses (they stem from national sovereignty) and the rights for which it is fighting (they stem from state sovereignty).

The legal personality of a struggling nation includes a set of the following fundamental rights: the right to independent expression of will; the right to international legal protection and assistance from other subjects of international law; the right to participate in international organizations and conferences; the right to participate in the creation of norms of international law and independently fulfill the international obligations assumed.

Thus, the sovereignty of a struggling nation is characterized by the fact that it does not depend on its recognition as a subject of international law by other states; the rights of a struggling nation are protected by international law; a nation, in its own name, has the right to apply coercive measures against violators of its sovereignty.

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International Legal Personality of Nations and Nationalities Fighting for Their Independence

A feature of modern international law from the point of view of its subjects is that the participants in international legal relations and the creation of norms of international law are recognized as nations and peoples who are fighting for their state independence.

The struggle of nations and peoples for the formation of their own independent state is legal in accordance with international law and the UN Charter. This follows from the right of nations to self-determination - one of the most important international legal principles.

The UN Charter and other international legal documents in the relevant sections use the term "people" as a subject of self-determination, which does not affect the essence of the problem. In our science, the terms "people" and "nation" are considered interchangeable and are often used both together.

The struggle of peoples (nations) for the formation of their own independent states is legal in any form - peaceful and non-peaceful, including in the form of a national liberation war. Moreover, the forcible obstruction of the exercise of the right to self-determination, the preservation of colonialism in any form - old (in the form of any kind of direct colonial possession, occupation, protectorates, etc.) and new ones - in the form of neo-colonialism (unequal treaties, enslaving loans and credits, other foreign control) are incompatible with international law.

In the course of the national liberation struggle, the peoples can create their own governing bodies, which exercise legislative and executive functions and express the sovereign will of the nations. In such cases, the struggling nations become participants in international legal relations, subjects of international law, which exercise their international rights and obligations through the mentioned bodies. These were, for example, the Algerian National Liberation Front, the Popular Movement for the Liberation of Angola (MPLA), the Mozambique Liberation Front (FRELIMO), and the People's Organization of South West Africa (SWAPO). This is the Palestine Liberation Organization (PLO).

Like sovereign states, nations fighting for their state independence have full international legal personality, they can enter into relations with other states and international organizations, send their official representatives to negotiate, participate in the work international conferences and international organizations, conclude international treaties. In the course of an armed national liberation struggle, nations and peoples, like states, enjoy the protection of the norms of international law designed for the event of war (on the regime of the wounded, prisoners of war, etc.), although these norms are often violated. In all these cases, we are talking, in essence, about new independent states emerging in the course of the national liberation struggle, and therefore they are considered full-fledged subjects of international law.

In practice, there are cases of recognition as a nation fighting for self-determination (national liberation movements), a belligerent and insurrectionary side. We are talking about the recognition of a military-political formation that has a strong organization headed by responsible person, controls a significant part of the territory of the state and conducts a continuous and coordinated struggle with the central government for a long time.

Such recognition took place in the case of the Arab-Israeli conflict (recognition of the Palestine Liberation Organization), in the process of decolonization of Africa. With regard to the national liberation movements operating in Africa, the UN recognized only those of them that were also recognized by the Organization of African Unity as the only representatives of their peoples. In fact, it was the recognition of the organs of national liberation.

There are also more difficult situations. For example, in Ethiopia, both the opposition to the central government and the military formations of Eritrea fought against the existing central government. After the overthrow of the Mangistu Haile Mariam regime, the opposition came to power in Addis Ababa and recognized the independence of Eritrea, led by the leaders of the armed resistance. However, soon a war began between them for the disputed territory, which has not yet been completed. In this case, we are dealing with a situation where political struggle there are two governments involved.

Recognition of the belligerent and insurgent side has importance for the purposes of international humanitarian law applicable in times of armed conflict. Such recognition means that the recognizing state qualifies the actions of the belligerent and insurgent side as not regulated by the norms of national legislation, including criminal law, since the relevant norms of international humanitarian law apply to the relations of the parties to the conflict.

Recognition in these cases is also important from the point of view of protecting the interests of third states on the territory of the country,

where such an armed conflict takes place. A third state that recognizes the belligerents can declare neutrality and demand that their rights be respected.

Mention should be made of the precedent of recognition as a nation applied by the Entente powers in 1917-1918. in relation to Czechoslovakia and Poland, which at that time were only being constituted as independent states, but were already creating their military formations on the territory of France, which necessitated such recognition.

After the unilateral declaration of independence of Kosovo by the local authorities on February 17, 2008, taking into account the complication of the political situation in Serbia and the Balkans as a whole, Russia demanded that a meeting of the UN Security Council be convened to discuss the current situation. However, the United States, without waiting for the UN Security Council meeting, announced its intention to recognize the independence of Kosovo and establish diplomatic relations with it. The United States encouraged this action by some other states, also announcing its intention to recognize Kosovo as an independent state. From the point of view of the generally accepted approach in international law, recognition cannot create independent state and hence

" cannot affect the status of Kosovo, which is an integral part of Serbia. The Serbian authorities considered the US position 1 as an act of interference in their internal affairs. The Serbian National Security Council decided to create a team of lawyers to file claims against countries, including the United States, recognized the independence of Kosovo.At the same time, the Serbian government considered the decision of the US administration to refuse to recognize the independence of Kosovo as the best way out of this situation.The United States subsequently established diplomatic relations with Kosovo and opened an embassy in Pristina.As can be seen from this example, the institution of recognition here served as a tool to complicate the situation related to the determination of the status of Kosovo and was used to undermine the consensus reached on the basis of UN Security Council resolution 1244 (1989).

At the session of the UN General Assembly in 2008, at the proposal of Serbia, a resolution was adopted, deciding to ask International Court UN to issue an advisory opinion on the question: "Does the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo comply with the norms of international law?".

Nations and peoples fighting for their liberation. International legal personality of peoples (nations)

International Legal Personality of Nations and Nationalities Fighting for Their Independence

More on the topic 6.1.3. Recognition of a nation fighting for self-determination, a belligerent and a rebellion: