Legal personality of state-like entities. State-like entities (free cities) as subjects of international law State-like entities in international law are
MP subject- carrier of international rights and obligations arising under general rules MP or prescriptions of international legal acts.
Accordingly, int. legal personality - the legal ability of a person to be a subject of international law.
Int. legal personality: actual and legal.
1. States. Signs: territory, population, public authorities (system of organs).
2. Nations fighting for national self-determination. Nation - a historical community of people living in a given territory and characterized by the unity of politics, economics, culture, social life and language.
To be a subject of MP, nations need:
a territory in which it could self-determine;
· political organization that could speak on behalf of the whole nation;
Recognition at int. organizations.
Derivative subjects of MP ( created primary). The legal capacity of derivative SE subjects is stipulated in the agreements on their creation.
1. Int. organizations.
· int. intergovernmental organizations - based on intergovernmental agreements. There are both universal (they are of a worldwide character (UN)) and regional (uniting the subjects of the MP of a given region (OSCE, European Union, Council of Europe, etc.));
· int. non-governmental organizations (the so-called public diplomacy bodies) - founded by non-governmental, non-governmental organizations and individuals.
2. State-like entities (Vatican, San Marino, Monaco, Andorra, Order of Malta in Rome). Their creation is based on an agreement, as a rule, with neighboring states on non-aggression on "free cities", which subsequently transform into similarities of a state with its own insignificant army, border, and a semblance of sovereignty.
The rights of the state as a subject of MP:
1. the right to independence and the free exercise of all their legal rights, to exercise jurisdiction over their territory and over all persons and things within its boundaries, subject to the immunities recognized by the MP;
2. equality with other states;
3. the right to collective and individual self-defense against armed attack.
State obligations:
1. refrain from interfering in the internal and external affairs of other states;
2. refrain from inciting civil strife on the territory of another state;
3. respect human rights;
4. establish conditions on its territory that would not threaten international the world;
5. resolve all their disputes with other subjects of IL only by peaceful means;
6. refrain from the threat or use of force against territorial integrity and political independence or otherwise inconsistent with the MP;
7. refrain from assisting another state that violates a previous duty or against which the UN is taking preventive or coercive measures;
8. refrain from recognizing the territorial acquisitions of another state acting in violation of the obligation not to use force;
9. conscientiously fulfill their obligations.
International legal recognition- this is an act of the state, which states the emergence of a new subject of the MT and with which this subject considers it expedient to establish diplomatic and other relations based on the MT.
Theories of international legal recognition:
constitutive - the act of recognizing the destinator (addressee of recognition) on the part of already existing subjects of MT plays decisive role in its international legal status. Disadvantages: in practice, new formations can enter into interstate relations without recognition, it is not clear how many states need recognition in order for a new formation to acquire international legal personality.
Declarative - recognition does not mean giving it an appropriate legal status, but only states the fact of the emergence of a new subject of international law and facilitates contact with it. Prevails in the international legal doctrine.
Forms of recognition:
1. De facto recognition (de facto) - the actual recognition of the state by establishing economic relations with it without establishing diplomatic relations.
2. Recognition de jure (de jure) - the opening of diplomatic missions, missions in a recognized state.
3. Recognition (one-time) "ad hoc" - recognition of the state for a particular case.
Types of recognition:
traditional types of recognition: recognition of states, recognition of governments;
· preliminary (intermediate): recognition of nations, recognition of an insurgent or belligerent, recognition of resistance, recognition of a government in exile.
Preliminary recognition types apply pending further development events that can lead either to the creation of a new state, or to the stabilization of the situation in the country where power was seized in a revolutionary way.
The act opposite to recognition is called protest. The essence of the protest is in disagreement with the legitimacy of the relevant legally significant fact or event, in qualifying it as an internationally wrongful act. The protest must be expressly expressed and somehow brought to the attention of the state to which it concerns.
State-like entities are 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.
These primarily include the so-called "free cities" and free territories.
In principle, free cities were created as one of the ways to freeze territorial claims, to mitigate tensions in interstate relations that arise over the ownership of any territory. A free city is created on the basis of an international treaty or a decision of an international organization and is a kind of state with limited legal capacity. It has its own constitution or an act of a similar nature, the highest state bodies, citizenship. Its armed forces are purely defensive in nature, or more of a border guard and law enforcement force. The creators of a free city usually provide ways to monitor compliance with its status, for example, appoint their representatives or representative for this purpose. In the international arena, free cities are represented either by interested states or by an international organization.
The status of the Free City of Danzig, which existed between the two world wars, was guaranteed by the League of Nations, and in foreign relations the interests of the city were represented by Poland. The Free Territory of Trieste, established by the 1947 peace treaty with Italy and divided between Italy and Yugoslavia by the 1954 agreement, was protected by the UN Security Council.
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 assumed by them after the capitulation of Nazi Germany in relation to West Berlin, which maintained official relations with the GDR and the FRG. The German government represented the interests of West Berlin in international organizations and at conferences, provided consular services to its permanent residents. The USSR established a consulate general in West Berlin. In connection with the reunification of Germany in 1990, the rights and responsibilities of the four powers in relation to West Berlin were terminated, since it became part of the united Federal Republic of Germany.
At present the state similar formations with a special international legal status are the Vatican (Holy See) as the official center of the Roman catholic church and the Order of Malta as an official religious body with internationally recognized charitable functions. Their administrative residences are in Rome.
Outwardly, the Vatican (Holy See) has almost all the attributes of the state - a small territory, authorities and administration. About the population of the Vatican, however, we can only speak conditionally: these are the relevant officials involved in the affairs of the Catholic Church. At the same time, the Vatican is not a state; rather, it can be considered as the administrative center of the Catholic Church. The peculiarity of his status lies, among other things, in the fact that he has diplomatic relations with a number of states that officially recognize him as a subject of international law.
The Order of Malta was recognized as a sovereign entity in 1889. The seat of the order is 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.
International legal personality of other participants international relations(TNC, INGO, individual, humanity), including state-like entities
Legal personality of state-like entities
In international law, in accordance with interstate treaties in the past and at present, a special international legal status is granted to some political-territorial (state-like) entities. In accordance with such international treaties, these entities are endowed with certain rights and obligations and thus become subjects of international legal regulation. Their international legal personality is determined by the fact that they are capable of independently, independently of states and other subjects of international legal communication, to exercise the established legal rights and obligations. The relevant international legal capacity is determined by the provisions of the said treaties and, in some cases, customary 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 (it existed until 1846). The Versailles Peace Treaty of 1919 established a special international legal status for the "free state" of Danzig (1920–1939). The 1947 peace treaty with Italy 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 that regulated its international legal status was the quadripartite agreement between the USSR, the USA, Great Britain and France dated 03.09.197 i. According to the agreement, the western sectors of the city were united into a special political education with their authorities (the Senate, the 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's population in international relations were represented and protected by consular officials Germany. The status of West Berlin ended in 1990;
- 3) Vatican - the residence of the head of the Catholic Church (the Pope) in a special area of Rome, sometimes called the city-state. Its legal status is determined by the 1984 agreement between Italy and the "Holy See". The Vatican maintains external relations with many states, in particular with Catholic countries; he establishes in them his permanent missions headed by papal nuncios or legates. The Vatican is involved in many international conferences and is a party to many international agreements. In addition, it is a member of a number of universal international organizations (UPU, IAEA, ITU, etc.), 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 individuals international legal personality. 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 creating norms aimed not only at regulating their mutual relations, but also norms addressed to other persons and entities by coordinating their wills. These norms may be addressed by INGOs, individual international bodies (commissions, committees, judicial and arbitration bodies), employees of IMGOs, i.e. individuals and entities that do not themselves have the ability to create norms of international law.
Although most of the norms aimed at influencing the legal status of an individual are directly addressed to states and oblige them to provide individuals with a certain set of rights and freedoms, in some cases related to the activities of international human rights bodies, international legal norms determine the rights and duties of an individual directly.
Of course, the situation is more complicated 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, act in relation to them not directly, but indirectly by the norms national law. However, in a number of cases, rights and obligations under international law are directly vested in individuals and entities that do not have the ability to create norms of international law.
In fact, the circle of persons and entities that are the subject of international law depends on what definition of the subject of international law is given. If the subjects of international law are defined as "formations independent of each other, not subordinate in the field of international relations to any political power having the legal capacity 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 - bearers of rights and obligations directly in force of the norms of international law, then it will be necessary to recognize individuals, including employees of the MMPO, as subjects of international law, certain circle legal entities, INGOs, various international bodies.
Most likely, in international law we should talk about two categories of subjects. The first group includes those who have rights and obligations directly arising from the norms of international law, and are themselves directly involved in the creation of these norms, in ensuring their observance. First of all, these are 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 (IChO), 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. S. 82.
Legal personality of international (intergovernmental) organizations and state-like entities
An international intergovernmental organization is an association of states established on the basis of an international treaty to achieve common goals, having permanent bodies and acting in the common interests of member states.
When studying the law-making role of international organizations, one should take into account the peculiarities of their legal personality. In international law, a unified position regarding the international legal personality of international organizations was not immediately formed. Currently, almost all international lawyers involved in the study of the activities of international organizations are of the opinion that they have an international legal personality. However, since international organizations are secondary subjects of international law, they have a specific legal personality. For example, S.A. Malinin believes that the legal personality of international organizations, their scope, functions and powers depend on the will of the founding states and are limited by the constituent act. From this, in his opinion, one can draw a number of general conclusions about the rule-making activities of international organizations: it is not possible to establish in relation to all of their specific scope of powers to participate in the rule-making process; the specific degree and forms of such participation are determined by the founding states in relation to this organization in each specific case at the time of its creation and ultimately depend on the functions it performs, therefore, the scope of powers granted to this international organization in the field of lawmaking can only be clarified on the basis of a thorough analysis its founding act.
Any intergovernmental organization is a subject of international law. The international legal personality of an intergovernmental organization is manifested in its legal status, to the extent of those rights and obligations that states grant to the organization and from the nature of which the organization itself may (or may not) acquire other rights and obligations in the future.
State-like entities have a certain amount of international legal personality. Such formations have territory, sovereignty, have their own citizenship, legislative assembly, government, international treaties. 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. For example, 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.
The scope of international legal personality of free cities was determined by international agreements and constitutions of such cities. 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.).
In 1929, on the basis of the Lutheran Treaty, signed by the papal representative Gaspari and the head of the Italian government, Mussolini, the "state" of the Vatican was artificially created. The creation of the Vatican was dictated by the desire Italian fascism and his inner and foreign policy enlist the active support of the Catholic Church. The main goal of the Vatican is to create conditions for independent government for the head 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.
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?
Answer to this question gives 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 instruments(contracts).
In the historical aspect, the "free cities", West Berlin, and currently the most vivid 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 evidenced by historical experience, is usually the result of settling controversial issue about 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. External relations the cities 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 in relation 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.
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