Peoples fighting for their independence. Peoples and nations fighting for independence. International legal status of subjects of the Russian Federation

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 struggle for their state independence, the struggling nations create their own national political bodies, which embody their sovereign will. Depending on the nature of the struggle (non-peaceful or peaceful), these bodies may be different: front national liberation, a liberation army, resistance committees, a provisional revolutionary government (including those 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. For example, the 1954 Geneva Agreements 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 of the Democratic Republic of 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 Algeria, 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 was 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 said 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 contractual international relations 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 freely choose and develop their socio-political status.

The principle of self-determination of peoples will be one of the basic principles of international law, its formation falls on late XIX- the beginning of the XX century.
It should be noted that it acquired a particularly dynamic development after the October Revolution of 1917 in Russia.

With the adoption of the UN Charter, the right of a nation to self-determination finally completed its legal formalization 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 the ϶ᴛᴏth principle. Its content was most fully formulated in the Declaration on Principles of International Law of 1970, which states: “All peoples have the right to freely determine, without outside interference, their political status and to carry out their economic, social and cultural development, and every state is obliged to respect ϶ ᴛᴏ law in accordance with the provisions of the UN Charter”.

Let us note the fact that 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 gaining full international legal personality, registration as 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 that nation can be recognized as a subject of international law, which has a political organization that independently performs quasi-state functions.

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

It must be taken into account that international legal personality in the proper sense of the ϶ᴛᴏth word can (and does) have not all, but an exceptionally limited number of nations - nations that are not registered as states, but strive to create them in accordance with international law.

Based on all of the above, we come to the conclusion that virtually any nation can potentially become the subject of legal relations of self-determination. At the same time, the right of peoples to self-determination was fixed in order to combat colonialism and its consequences, and as a norm of anti-colonial orientation, it fulfilled its task.

Today special meaning acquires another aspect of the right of nations to self-determination. 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 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.

Distinguish between the rights that the nation already possesses (they stem from national sovereignty), and the rights that it fights for the possession of (they stem from state sovereignty)

The legal personality of a struggling nation contains a complex 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.

Based on all of the above, we come to the conclusion that the sovereignty of a struggling nation is characterized by the fact that it does not depend on the recognition of it as a subject of international law by other states; the rights of a struggling nation are protected by international law; the nation, on its behalf, has the right to apply coercive measures against violators of its sovereignty.

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 a responsible person, controls a significant part of the territory of the state and wages 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 the case under consideration, we are dealing with a situation where, as it were, two governments participate in the political struggle.

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 an independent state and, therefore,

" cannot affect the status of Kosovo, which is an integral part of Serbia. The Serbian authorities considered the position of the United States 1 as an act of interference in their internal affairs. Council national security Serbia has decided to create a team of lawyers to file claims against countries, including the US, that recognized the independence of Kosovo. At the same time, the Serbian government considered the best way out from the current situation, the decision of the US administration to refuse to recognize the independence of Kosovo. 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 2008 UNGA session, at the suggestion of Serbia, a resolution was adopted asking the International Court of Justice 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?”.

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

Forms of self-determination; the content of the principle of self-determination; subjects of self-determination
Nation-ethnoi and nation-states in Russian statehood: history and modernity.
1. Recognition of the quality of an international personality by the subjects of international law.
Restriction of belligerents in the choice of methods and means of warfare
CHAPTER X ASSISTANCE OF THE SOVIET UNION TO THE PEOPLES FIGHTING FOR INDEPENDENCE
3. Strengthening the cooperation and unity of the peoples fighting against colonialism
5. Citizens of neutral states and their property on the territory of warring states
The electors rebelled against such claims and even announced that the elected
Appendix Na 9 Procedure for accepting a guilty plea. Recognition deal. Rules and Practice of the US Federal Courts
18. The formal side of publicity. - The material side, called the beginning of social certainty (offentlicher Glaube). - The positive and negative sides of social credibility. The fidelity and completeness of the patrimonial book
§ 7. Recognition of a movable thing as ownerless and recognition of the right of municipal ownership to an ownerless immovable thing

- Copyright Law - Agricultural Law - Advocacy - Administrative Law - Administrative Procedure - Company Law - Budgetary System - Mining Law - Civil Procedure - Civil Law - Civil Law of Foreign Countries - Contract Law - European Law - Housing Law - Laws and Codes - Suffrage law - Information law - Enforcement proceedings - History of political doctrines - Commercial law - Competition law - Constitutional law of foreign countries - Constitutional law of Russia - Criminalistics - Forensic methodology - Criminal psychology - Criminology - International law - Municipal law - Tax law -

Recognition of the international legal personality of nations and peoples is directly related to the adoption of the UN Charter, which established as fundamental principle- The right of the nation and people to self-determination. Later this principle was developed in the documents adopted by the UN General Assembly: the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 and the Declaration on the Principles of International Law of 1970, which fixed the personification of nations and peoples as subjects of international law. The terms "people" and "nation" in international instruments were considered identical.

The successful development of the anti-colonial struggle in the 1960s led to the universal recognition of the international legal personality of nations and peoples that embarked on the path of self-determination. The practice of concluding international treaties between sovereign states and national liberation bodies has spread, which, in addition, received the status of observers in international intergovernmental organizations, and their representatives - the right to participate in the work international conferences.

International law and practice international relations determined the scope of the legal capacity of the struggling nation, which includes a complex of the following basic (subject-specific) 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 the work of international organizations and conferences;

The right to participate in the creation of international legal norms and independently fulfill the obligations assumed

The right to use coercive measures against violators of national sovereignty.

These rights, which form the basis of the international legal capacity of the people, have specifics distinguishing it from the universal legal capacity of sovereign states. A people (nation) fighting for independence can participate in international relations only on matters relating to the exercise of the right to self-determination. This provision is most clearly manifested in the practice of international organizations of the UN system. The UN Charter and the charters of other organizations of the UN system recognize only a sovereign state as a full member of the organization. National entities in the UN system have a special status - associate members or observers.

The doctrinal interpretation of the international legal personality of nations and peoples has developed quite contradictory and ambiguous. The main problem of scientific controversy was the question of determining the scope of the international legal capacity of the nation (people).

The existence of the international legal personality of nations and peoples was most consistently defended in Soviet international legal doctrine coming from ideas of national sovereignty, by virtue of the possession of which the nation (people) is the main (primary) subject of international law, endowed with universal legal capacity. The nation (people) was understood not just as a population living in a certain territory, but as an organizationally formalized cultural and historical community, aware of its unity. Soviet scientists believed that every people (nation) is a potential subject of international law, but it becomes a participant in real international legal relations from the moment the struggle for its political self-determination begins.

IN Western international legal doctrine the international legal personality of nations and peoples was unequivocally recognized only as a result of the successful development of the anti-colonial movement. However, the universal scope of the legal capacity of this subject of international law has never been recognized by Western scholars. Generalized essence of this doctrine can be expressed as follows: a nation that has a political organization and independently performs quasi-state functions has the right to participate in international relations, but has a limited amount of legal capacity, including powers of a specific nature (the right to decolonization, the right to social, economic and political self-determination, the right of national minorities demand protection and protect their rights).

In the last decade, approaches to determining the legal personality of nations (peoples) fighting for independence have changed and in the domestic (modern) international legal doctrine. Russian researchers also recognized that the nation (people) has a specific legal capacity, limited by the right to self-determination. In addition, today, when the vast majority of former colonial peoples have achieved independence, the right of a nation to self-determination has come to be viewed in a different aspect, as the right to develop a nation that has already freely determined its political status. Most domestic researchers now believe that the principle of the right of a people to self-determination is necessary coordinate with other principles of international law, especially when it comes to the self-determination of individual nations within the framework of a multinational sovereign state. Such self-determination does not at all imply the obligatory secession and creation of a new state. It implies an increase in the level of independence, but without a threat to the territorial integrity of the state and human rights. This position was enshrined in the decision of the Constitutional Court of the Russian Federation of March 13, 1992, which states that “without denying the right of the people to self-determination, carried out through a legitimate expression of will, one should proceed from the fact that international law limits it to the observance of the principle of territorial integrity and the principle of observance of human rights".

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Introduction

1. Subjects of international law: concept, signs and types. The content of international legal personality

2. International legal personality nations and peoples fighting for their independence. National sovereignty: the concept and methods of its implementation

3. The principle of self-determination of nations and peoples. Its relationship with the principle of territorial integrity of states

Conclusion

List of used literature

Introduction

International law is a special legal system that regulates the international relations of its subjects through legal norms created by a fixed (contract) or tacitly expressed (custom) agreement between them and provided by coercion, the forms, nature and limits of which are determined in interstate agreements.

The subject of international law is an independent entity, which, due to its capabilities and legal properties, is able to have rights and obligations under international law, participate in the creation and implementation of its norms. The subjects of international public law (hereinafter referred to as WIP) include states, nations and peoples fighting for their liberation, state-like entities, and international institutions.

The relevance of this topic lies in the fact that, being subjects of international law, nations and peoples fighting for their independence acquire certain rights and obligations in international law.

The primary subjects of the MPP are not created by anyone as such. Their appearance is an objective reality, the result of a historical process. These are, first of all, states and, in some cases, nations and peoples. Due to the state sovereignty inherent in the former, and national sovereignty to the latter, they are ipso facto (only as a result of the fact of their existence) recognized as bearers of international rights and obligations. There are no norms in the MPP that would endow primary subjects with legal personality. There are only norms confirming that they have legal personality from the moment of formation. In other words, the legal personality of the primary subjects does not depend on anyone's will and is inherently objective in nature.

Derivative subjects of WFP are created primary, and the legal sources for their establishment is an international treaty and, as a variation of it, constituent documents in the form of statutes. Derivative subjects have a limited legal personality, which is due to the recognition of these participants in international relations by the primary subjects. In addition, the extent of their international legal personality depends on the intention and desire of their creators. Derivative subjects of WFP include state-like formations, intergovernmental organizations.

The subject of WFP is a collective entity. Each subject has elements of organization: the state - power and management apparatus; the struggling nation is a political body representing it within the country and in international relations; international organization - standing rules, etc. Each of them has an independent legal status, acts in the external arena from own name. Some scientists believe that only the presence of three elements (possession of rights and obligations arising from international legal norms; existence in the form of a collective entity; direct participation in the creation of international legal norms) gives grounds to "consider this or that entity a full-fledged subject of international law."

Thus, the purpose of this work is to consider nations and peoples fighting for their independence as subjects of international law.

To achieve this goal, it is necessary to solve the following tasks:

· consider the subjects of international law: the concept, signs and types. To reveal the content of international legal personality;

· to give the concept of international legal personality of nations and peoples fighting for their independence. National sovereignty: the concept and methods of its implementation;

· consider the principle of self-determination of nations and peoples, its correlation with the principle of territorial integrity of states.

1. Subjects of international law: concept, signs and types. Contents of international lawsubjectivity

Subjects of international law are participants in international relations, possessing international rights and obligations, exercising them on the basis of international law and bearing, if necessary, international legal responsibility Biryukov P.N. International law. - M.: Jurist, 1998.

Depending on your legal nature and origin, the subjects of international law are divided into two categories: primary and derivative (secondary). They are sometimes referred to as sovereign and non-sovereign.

The primary subjects of international law are states, and under certain circumstances also peoples and nations that independently participate in international relations and evolve towards acquiring their own statehood in one form or another.

The primary subjects of international law are independent and self-governing entities, which from the very beginning, by the very fact of their existence (ipso facto - lat.), become carriers of international rights and obligations. Their legal personality does not depend on anyone's external will and, in its essence, is objective. Entering into relationships with each other, the primary subjects of international law make it possible to create an international legal order and the existence of international law itself.

The category of derivative (secondary) subjects of international law includes entities whose source of legal personality is agreements or any other agreements of primary subjects of international law, primarily states, and in some cases agreements between already constituted derivative subjects of international law.

Derivative (secondary) subjects of international law are mainly intergovernmental organizations, less often other independent political units endowed with elements of statehood. All of them operate in international relations within the limits of their competence provided for by the relevant constituent documents - statutes or other legal acts. Such documents determine in each particular case the scope and content of the legal personality of derivative subjects of international law. In this sense, their legal personality has a constitutive character, and it can be terminated (or modified) simultaneously with the termination or change of the constituent document Kalalkaryan N.A. Migachev Yu.I. International law. - M.: "Yurlitinform", 2002. .

Subjects have all the elements of international legal personality (legal and legal capacity). International legal personality includes such important rights, How:

the right to conclude international treaties;

be members of international organizations;

· have their own official representations (diplomatic, consular, etc.);

participate in international conferences, etc.

Among the main subjects of international law, states are in the first place. State - main political organization modern society. Over the states in international relations there is no supreme authority that could dictate to them the rules of conduct in relations with each other. States are at the same time the main creators and guarantors of compliance with the norms of international law. At the same time, states are not legally subordinate to each other. This expresses the sovereignty of states.

Sovereignty is an inalienable quality of a state as a subject of international law. It arose along with the state. Its symbols are the coat of arms, flag and anthem, reflecting historical, geographical and national features.

Due to sovereignty, states are equal to each other in legal relation, i.e. equal regardless of the size of their territory, population, economic and cultural development, military power etc.

The principle of the sovereign equality of all states is one of the basic principles of international law. It is enshrined in the UN Charter, as well as in the UN Declaration on Principles of International Law of 1970 and reads as follows: "Each state is obliged to respect the legal personality of other states" International Law: Textbook. Rep. ed. Yu.M. Kolosov, E.S. Krivchikov. -- M.: Intern. relations, 2000.

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.

Self-determination of nations and peoples, judging by modern international legal practice, can be carried out in a variety of forms, including those in which the problem of recognizing the international legal personality of one or another people does not arise.

In addition, the principle of equality and self-determination of peoples should not be used to the detriment of the territorial integrity and political unity of states that observe it and ensure the representation of all segments of the population in the bodies state power without any discrimination.

Special political-territorial formations (sometimes they are called state-like) can participate in international relations, which have internal self-government and, to various extents, international legal personality.

Most often, such formations are temporary and arise as a result of unsettled territorial claims. various countries to each other.

What is common to political-territorial formations of this kind is that in almost all cases they were created on the basis of international agreements, usually, peace treaties. Such agreements endowed them with a certain international legal personality, provided for an independent constitutional structure, a system of organs government controlled, the right to publish regulations, have limited armed forces.

Any subject of international law has:

legal capacity;

· legal capacity;

· Delicacy.

Legal capacity is the ability of a subject of international law to have subjective rights and legal obligations. This ability has:

state - at the time of formation;

· nations fighting for independence - from the moment of recognition;

· intergovernmental organizations -- from the moment the constituent documents come into force;

· natural persons - upon occurrence of situations defined in the relevant international treaties.

The presence of legal capacity means the presence of a legal opportunity for individuals to generate subjective rights and legal obligations by their actions.

Legal capacity means the exercise by the subjects of international law independently, by their conscious actions of their rights and obligations. For example, in accordance with the 1996 Agreement on Cooperation in Combating Crimes in the Sphere of the Economy, the parties will strive to bring the legislation of their states in line with international law. The Parties determine the list of their authorized departments responsible for the implementation of this agreement. Each state has the right to send requests to the other party for assistance in collecting information and materials on acts related to the legalization of funds obtained as a result of criminal activity. The requesting party is obliged to provide banking, credit and financial and other documents.

Subjects of international law have the ability to delict, i.e. the ability to bear legal responsibility for the offenses committed. So, according to Art. 31 of the UN Convention on maritime law 1982 The flag State is liable for any damage or loss suffered by a coastal State as a result of the failure by any warship or other government ship operated for non-commercial purposes to comply with the laws and regulations of the coastal State relating to passage through the territorial sea, or with the provisions of the Convention, or other norms of international law. In accordance with Art. II of the Convention on International Liability for Damage Caused by Space Objects of 1972, the state bears absolute responsibility for paying compensation for damage caused by its space object on the surface of the Earth or to an aircraft in flight.

All subjects of international law are bearers of the corresponding rights and obligations. This property is called legal personality, which includes two main structural elements (legal status is added in the general theory of law):

the ability to possess rights and bear obligations (legal capacity);

ability to independently exercise rights and obligations (capacity).

Types of legal personality:

general (states, GCD);

sectoral (intergovernmental organizations);

special.

General legal personality is the ability of actors (ipso facto - Lat.) to be a subject of international law in general. Only sovereign states have such legal personality. They are the primary subjects of international law. In theory, nations fighting for their independence also have general legal personality.

Sectoral legal personality is the ability of actors to be participants in legal relations in a certain area of interstate relations. Intergovernmental organizations have such legal personality. For example, the International Maritime Organization (IMO) has the right to take part in legal relations affecting international merchant shipping and can approve international legal norms regarding the safety of navigation, the efficiency of navigation, and the prevention and control of pollution from ships.

Intergovernmental organizations cannot deal with issues other than statutory ones, and therefore their legal personality is limited to a certain industry or a separate issue (for example, disarmament, the fight against hunger, the protection of natural environment Antarctica).

Special legal personality is the ability of actors to be a participant in only a certain range of legal relations within a separate branch of international law. Special legal personality, for example, is possessed by natural persons (individuals). Their legal personality, in particular, is recognized by the Universal Declaration of Human Rights of 1948 (Article 6), the International Covenant on Civil and Political Rights of 1966 (Article 2 et seq.), international convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (art. 8 et seq.).

Thus, the subjects of international law must have the ability to independently participate in international relations regulated by international law, directly enter into legal interaction with other persons authorized or obliged by international law.

Legal personality in unity with other general rights and obligations of subjects of international law is covered by the concept legal status. The main elements of the latter are the rights and obligations of actors of international law in real legal relations, the basis for which are the imperative principles of international law and the corresponding legal fact. So, according to Art. 6 of the Vienna Convention on the Law of Treaties of 1969, each state has the legal capacity to conclude an agreement. This legal capacity of states is based on such universally recognized principles of international law as the principle of respect for state sovereignty and the sovereign equality of states, as well as the principle of cooperation between states. In the event of an armed attack (aggression), each state has an inalienable right to individual or collective self-defense (Article 51 of the UN Charter).

2. International legal personality of nations and peoples fighting for their independence. National Sovereignty: Ponya tie and methods of its implementation

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 the end of the 19th - beginning of the 20th centuries. He 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, without outside interference, their political status and to exercise their economic, social and cultural development and every state has an obligation to respect this right 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 can be recognized as a subject of international law.

It should be noted that, according to international law, the struggling nations are recognized as subjects of international law in the person of the organs of national liberation. Fighting nations become participants in international legal relations after the creation in certain territories of power structures capable of acting on behalf of the population inhabiting this territory in interstate relations. As practice shows, such bodies are usually: the national front; political parties expressing the interests of the majority of the nation; national liberation army; the provisional revolutionary government and other organs of resistance created in the course of the liberation war; a representative legislative assembly elected by referendum and an executive body formed by it. Organs of national liberation acquire the right to enter into relations with other states and international organizations, to participate in the work of international conferences, and to enjoy the protection of international law.

The organs of national liberation were the National Liberation Front of Algeria, the People's Movement for the Liberation of Angola, the People's Organization of South West Africa, the organization of African unity, the Liberation Organization I (Palestine, the People's League of East Pakistan, which expressed the independence of the Bengali people and proclaimed People's Republic Bangladesh.

As a subject of international law, nations and peoples fighting for their self-determination, represented by their permanent bodies, can conclude agreements with states and international organizations, sign international treaties, send their representatives to participate in the work of intergovernmental organizations and conferences. They enjoy the protection of international law.

It must be borne in mind that not all, but only a limited number of nations can (and do) have international legal personality in the proper sense of the 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 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.

In the domestic doctrine, the recognition of peoples and nations as subjects of international law has traditionally been defined as an explicit or tacit act of a sovereign state, stating the entry into the international arena of a new sovereign entity or government, aimed at establishing relations between the recognizing and recognized parties in accordance with generally recognized principles and norms. international law. It is believed that the recognition by modern international law of peoples of the right to self-determination, sovereignty, participation in international relations inevitably leads to the recognition of the people as the main bearer of sovereignty, the original subject of international law. This point of view is based on the principles of international law, fixing the legal personality of nations in the process of struggle for liberation, which place the struggling nation under the protection of international law. The fundamental rights of the nation in the field of international relations include the right to:

· the will of the people fighting for independence;

recognition of the legal personality of their bodies;

· international legal protection and receiving assistance from states and international organizations;

participation in the activities of international organizations and intergovernmental conferences;

participation in the creation of norms of international law;

Independent implementation of existing international legal norms.

IN last years V Russian science international law, other points of view appeared regarding the legal personality of peoples and nations. It is proposed to include only states and interstate organizations among the subjects of international law on the grounds that the legal personality of peoples, nations fighting for the creation of an independent state is not universally recognized. According to some Russian scientists, peoples who can realize one of the principles of international law - the right to self-determination, should be classified as "special subjects of international law". It seems that such judgments contradict the principle of self-determination of peoples and nations fighting for independence, which is universally recognized in modern international law and must be respected by the entire world community.

Speaking of national sovereignty, it can be defined that this is the sovereignty of the nation, its political freedom, the possession of a real opportunity to determine the nature of its national life, including, first of all, the ability to politically self-determine up to the separation of the formation of an independent state.

The sovereignty of a nation is manifested in a real opportunity to independently and sovereignly resolve issues related to its national freedom, state-legal organization, relations with other nations and nationalities. Each nation has the right to determine its own destiny, decide the question of a national-state organization, it has the right to become part of this or that state and unite with other nations in various forms of a state union, to leave this state and form its own independent national state. Each nation has the right to preserve and freely develop its own language, customs, traditions, relevant national institutions.

The sovereignty of a nation has as its precondition national needs, interests and goals arising from the objective conditions of its existence and being the most important stimulus for the development of the nation, its struggle for its liberation. National interests can be put forward, expressed by the leading class of the given nation, as well as national interests in the full sense of the word.

National sovereignty means the right to self-determination up to secession and formation of an independent state. In multinational states formed by the voluntary association of nations, the sovereignty exercised by this complex state, of course, cannot be the sovereignty of one nation alone. Depending on the way in which the united nations exercised their right to self-determination - by uniting into union states and by federation on the basis of autonomy or confederation, the state sovereignty exercised by this multinational state must guarantee the sovereignty of each of the united nations. In the first case, this is achieved by providing sovereign rights the subjects of the union that have ceded part of their rights to a multinational state. In the second case, the sovereignty of nations is ensured by protecting the autonomy of nation-states. But in both cases, the multinational state, represented by its supreme bodies is the bearer of the sovereignty not of any separate nation, but of the sovereignty that belongs to this particular multinational state, expressing both the common interests of all the united nations and the specific interests of each of them. The main thing is that a multinational state in any of its varieties should ensure the real sovereignty of each of the nations that make up it.

Consequently, the state, especially a democratic one, recognizing the natural rights of a person, stands guard over the freedom of any individual, regardless of his nationality, therefore, a national, ethnic, racial attribute should not become a criterion of state power. Thus, national sovereignty should be understood as a democratic principle, according to which every nation has the right to freedom, to independent and independent development, which must be respected by all other nations and states.

3. Pprinciple of self-determination of nations and peoples. Eits relation to the principle of territoryreal integrity of states

At a conference in San Francisco, the USSR came up with an initiative to include the principle of self-determination of peoples in the UN Charter, which was supported by representatives of Great Britain, the USA and China. As a result, this principle ceased to be an exclusively political principle and turned into a principle of positive international law (Article 1 par. 2 and Article 55 par. 1 of the UN Charter). In the Declaration on Principles of International Law (October 24, 1970), the content of this principle is revealed as follows: "By virtue of the principle of equal rights and self-determination of peoples, enshrined in the UN Charter, all peoples have the right to freely determine, without outside interference, their political status and exercise their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter." The same Declaration says that the means of exercising the right to self-determination can be "the creation of a sovereign and independent state, free accession to an independent state or association with it, or the establishment of any other political status."

In addition, the principle of self-determination of peoples was reflected in the documents of the Conference on Security and Cooperation in Europe - the Helsinki Final Act of 1975, the Final Document of the Vienna Meeting of 1986, the document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE in 1990, as well as other international legal acts.

The right of peoples to self-determination is one of the fundamental human rights. Thus, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of December 19, 1966 (Article 1) say: “All peoples have the right to self-determination. By virtue of this right, they freely determine their political status and freely ensure their economic, social and cultural development ... All States Parties to the present Covenant ... shall, in accordance with the provisions of the Charter of the United Nations, promote the exercise of the right to self-determination and respect this right. "international legal personality sovereignty self-determination

The connection between the right to self-determination and human rights is drawn attention to in the UN General Assembly resolution entitled "The universal realization of the right of peoples to self-determination" (1994), which emphasizes that the realization of the right of peoples to self-determination "is a fundamental condition for the effective promotion and observance of human rights ". It is important to note that international Court The UN in a number of its decisions confirmed the thesis that the principle of self-determination "is one of the basic principles of modern international law."

So what is the specific content of the right of peoples to self-determination? In order to answer this question, it must be borne in mind that this right can be exercised in one of three forms:

1) the status of autonomy within the framework of the existing state (i.e. providing a certain people with appropriate representation in the central government bodies on an equal basis with the population of the entire state);

2) creation of own state;

3) secession from the composition (separation) of the state, which includes this people.

At the same time, it is of fundamental importance that the right to self-determination implies the freedom to choose between these three possibilities Pienkos J., Public International Law, 2004. . Without such freedom of choice it is impossible to talk about the true right of the people to self-determination. This is precisely the true essence of the principle of self-determination of peoples, which they are trying to emasculate for the sake of considerations of imperial policy and ideology.

In the science of international law, there are three main points of view regarding the relationship between the principle of self-determination of peoples and the principle of the territorial integrity of the state:

1) the principle of territorial integrity takes precedence over the principle of self-determination of peoples;

2) the principle of self-determination of peoples takes precedence over the principle of territorial integrity;

3) both principles have equal legal force.

As Polish authors Vladislav Chaplinsky and Anna Vyrozumska believe, "the right to self-determination cannot belong to national minorities and does not justify the right to secession. In practice, the principle of self-determination was subordinated to the principle of territorial integrity" Kzaplinsky V., Vyrazumska A.. International public law. Warsaw, 2004. .

An interesting position regarding the relationship between the principles of self-determination of peoples and territorial integrity was taken by the Constitutional Court of the Russian Federation, which, in its decision of March 13, 1992, stated: “Without denying the right of a people to self-determination, carried out through a legitimate expression of will, one should proceed from the fact that international law restricts it observance of the principle of territorial integrity and the principle of respect for human rights". This position rather supports the primacy of the principle of territorial integrity over the principle of self-determination. However, such an approach actually makes the principle of self-determination superfluous, or, at best, reduces this principle to the people's right to autonomy within a single state.

Moreover, as evidenced by the history of international relations (for example, the emergence of independent nation-states in Europe), the right to self-determination of the people prevailed in relation to the principle of territorial integrity. As Professor G.M. Melkov: "The principle of equal rights and self-determination of peoples, which was originally an instrument of struggle against colonialism in the New World and an example for peoples under colonial yoke on other continents, as well as the principle of respect for human rights and freedoms, first appeared in the US Declaration of Independence, adopted on 4 July 1776, in the Bill of Rights (the first ten amendments and additions to the US Constitution), adopted on September 17, 1787, and in the French Declaration of the Rights of Man and of the Citizen, adopted in 1789. Subsequently, these principles were reflected in the Decree of Peace , adopted in Russia on October 26 (November 8), 1917, and in the Declaration of the Rights of the Peoples of Russia, adopted on November 2 (15), 1917. In all these documents, the main provisions were the sovereignty of peoples and their right to self-determination, which were in no way associated with the need to respect the territorial integrity of the United States, England and Russia.

The second point of view seems to be more reasonable and more consistent with the meaning of the principle of self-determination. Here is what is said about this in the article "the right to self-determination" in the electronic encyclopedia Wikipedia: "Meanwhile, there is an opinion that the principle of territorial integrity is aimed solely at protecting the state from external aggression. This is the reason for its wording in paragraph 4 of Art. Article 2 of the UN Charter: "All Members of the UN shall refrain in their international relations from the threat or use of force against territorial integrity or the political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations", and in the Declaration of Principles of International Law: "Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country". Proponents of this opinion point out that the application of the principle of territorial integrity is in fact subordinated to the exercise of the right to self-determination - thus, according to the Declaration on Principles of International Law, in the actions of states "nothing should be interpreted as authorizing or encouraging any actions that would lead to the dismemberment or partial or complete violation of the territorial integrity or political unity of sovereign and independent states that observe in their actions the principle of equality and self-determination of peoples. "Thus, it is concluded that the principle of territorial integrity is not applicable to a state that does not ensure the equality of the peoples living in it and not allowing the free self-determination of such peoples.

At the same time, it should be borne in mind that there is no hierarchy between the basic principles of international law, which is generally characteristic of the principles of law as such. “Principles,” writes the American scholar Ronald Dworkin in his book On Rights in Seriously, “have a feature that norms do not have—they can be more or less weighty or important. When two principles come into conflict..., those who to resolve this conflict must take into account the relative weight of each of these principles.A precise measurement cannot, of course, be made here, and the decision in favor of the greater importance of any particular principle or strategy is often disputed. to the fact that he has such a feature and that it makes sense to talk about how weighty or important he is" Dvorkin R. Seriously about rights. M., 2004. S. 51. .

From this point of view, the principle of equal rights and self-determination of peoples should be considered in the context of other basic principles of international law, primarily such as the principle of territorial integrity, the principle of the non-use of force, the principle of the peaceful settlement of disputes, the principle of respect for human rights, as well as the principle of democracy, which sometimes regarded as general principle rights.

4. Task

East Pakistan, after the formation of the Islamic Republic of Pakistan in 1947, was practically in the position of a colony. The policy of the ruling circles of Pakistan was aimed at subjugating the Bengali people of East Pakistan and exploiting them. So, in the late 50's early 60's. 66% of the assets of all industrial enterprises, 70% of insurance companies and 80% of banking assets were located in West Pakistan. East Pakistan accounted for only 1/5 of government spending on industrialization and 1/6 on the development of culture and education. Positions for public service, V armed forces, the police were occupied mainly by immigrants from West Pakistan. West Pakistanis tried to impose as " national language»Bengali language Urdu, although this language was native only for 0.63% of the inhabitants of East Pakistan.

Specify the ways in which the people exercise their right to self-determination.

Who, on behalf of a nation fighting for its self-determination, speaks at international arena?

What rights does a nation fighting for its independence have in the field of international relations?

Do the Bengali people have the right to self-determination and the formation of their own state?

Solution

1. The 1970 UN Declaration on Principles of International Law states: “The establishment 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 a people, are forms of the exercise by that people of the right to self-determination ." To this it should be added that the granting of wide national-state and cultural autonomy to the people within the framework of a multinational state is another form of its self-determination, a form that should now be given preference over the most radical form, which provides for the separation and formation of an independent state.

2. The nations fighting for their liberation are subjects of international law. In the international arena, they are represented by the organs of national liberation, which perform the functions of public authority. Recognition of the organ of a struggling nation is a statement of its international legal personality. For example, the recognition of the Palestine Liberation Organization as the representative of the Palestinian people. The PLO has enjoyed permanent observer status with the United Nations since 1974.

The recognition of the rebels meant that the recognizing state would recognize the fact of the rebellion and would not consider the rebels as armed criminals. The rebels were recognized the right to receive humanitarian aid from both States and international organizations and to the exercise of other fundamental rights.

In the event of an occupation, organs of leadership of the national resistance are created. Recognition of resistance organs means recognition of the authorities fighting against the occupiers. The need for such recognition arises in cases where the authorities that organized this struggle are in exile (French Committee of National Liberation, Czechoslovak National Committee). From the moment of recognition, the organs of popular resistance received the status of fighters, which made it possible to apply the rules of warfare to them and provide humanitarian assistance.

3. 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 of 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 that are born in the course of the national liberation struggle, and therefore they are considered full-fledged subjects of international law.

4. The principle of self-determination of peoples and nations as a mandatory norm was developed after the adoption of the UN Charter. One of the most important goals of the UN is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples..." (clause 2, article 1 of the Charter). This goal is specified in many provisions of the Charter. In Art. 55, for example, it is closely associated with the task of raising the standard of living, the decision international problems in economic and social areas, in the areas of healthcare, education, culture, human rights, etc.

The principle of self-determination has repeatedly been confirmed in UN documents, in particular in the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960, the Covenants on Human Rights of 1966, and the Declaration on the Principles of International Law of 1970. In the Declaration of Principles final act The CSCE especially emphasized the right of peoples to control their own destiny. After the collapse of the colonial empires, the question of the self-determination of nations in the sense of the formation of independent national states was basically resolved.

In resolution 1514 (XV) of 14 December 1960, the General Assembly explicitly stated that "the continued existence of colonialism hinders the development of international economic cooperation, delays social, cultural and economic development dependent peoples and runs counter to the ideal of the United Nations of world peace." According to the same resolution and many other UN documents, lack of political, economic and social preparedness or lack of education should not be used as a pretext for refusing to grant independence.

The UN documents express the main normative content of the principle of self-determination. Thus, the Declaration on Principles of International Law of 1970 emphasizes: "The creation of a sovereign and independent state, free accession to an independent state or association with it, or the establishment of any other political status freely determined by a people, are forms of the exercise by this people of the right to self-determination."

By unleashing an essentially colonial, illegal war against the population of the eastern province on March 25, 1971, the ruling militaristic junta not only trampled on the legitimate right of the East Bengal nation to self-determination, but also flagrantly violated the principles and purposes of the UN Charter. The policy of the West Pakistani authorities, who tried to eliminate legal political opposition by mass terror and violence, turned out to be in conflict with the basic norms and principles of modern international law: the principle of self-determination of peoples, enshrined in the UN Charter, the principle of respect for human rights and fundamental freedoms for all, without distinction race, gender, language and religion, fixed in the UN Charter and in the Universal Declaration of Human Rights of 1948, the norms contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, etc.

The people of East Bengal, embarking on the path armed struggle, has not lost the right to international legal protection as a rebel, since nations that are potential subjects of international law become not “potential”, but “actual” subjects from the moment they begin to fight for their liberation.

The people of East Bengal clearly expressed their desire for independence, which had to be reckoned with by the central government, during the first general elections in the history of Pakistan.

Conclusion

Nations and peoples fighting for their independence are a category of subjects of international law that have certain rights in the field of international relations, implemented as a particular of such subjects is recognized by any states, and provided that it has territory, population, statehood and the ability to bear international responsibility in connection with the offenses in which he may enter with other subjects of international law.

The collapse of the colonial system led to the emergence of new independent states as a result of the self-determination of nations. The circle of subjects of international law is constantly expanding, and this process has not yet been completed. In 1990, the people of Namibia in southern Africa achieved state independence, continues in different forms process of self-determination of the Palestinian people.

During the consideration of the first question of this term paper, it was found that any subject of international law has: legal capacity, legal capacity, tortiousness.

After studying the second question, we can conclude that the legal personality of the struggling 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 conclusion from the third question of this topic under study is that the right of peoples to self-determination is one of the fundamental human rights. The principle of equal rights and self-determination of peoples should be considered in the context of other basic principles of international law, primarily such as the principle of territorial integrity, the principle of non-use of force, the principle of peaceful settlement of disputes, the principle of respect for human rights, as well as the principle of democracy, which is sometimes considered as a general the principle of law.

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.

Like sovereign states, nations fighting for their state independence have full international legal personality. 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 such 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.

List of used literature

1. Constitution Russian Federation. Adopted by popular vote on December 12, 1993 (as amended on July 25, 2003). - Help system guarantor.

2. Convention "On the Protection of Human Rights and Fundamental Freedoms (ETS N 5)" of November 04, 1950 (as amended on 11.03.94). - Help system guarantor.

3. International Covenant "On Civil and Political Rights" of December 16, 1966. - Help system guarantor.

4. International Covenant "On economic, social and cultural rights" of December 16, 1966. - Help system guarantor.

5. Ancelevich G.A., Vysotsky A.F. Modern international public law. - M.: International relations, 2003.

6. Ancelevich G.A., Vysotsky A.F. Modern international public law. - M.: International relations, 2004.

7. Biryukov P.N. International law. - M.: Jurist, 1998

8. Kalalkaryan N.A. Migachev Yu.I. International law. -- M.: "Yurlitinform", 2002.

9. Ivashchenko L.A. Fundamentals of international law. - M.: International relations, 2004.

10. Ivashchenko L.A. Fundamentals of international law. - M.: International relations, 2005.

11. International law: Textbook. Rep. ed. Yu.M. Kolosov, E.S. Krivchikov. -- M.: Intern. relations, 2000

12. Lazarev M.I. Theoretical issues of modern international law. - M.: Legal literature, 2005.

13. Pienkos J., Public International Law, 2004.

14. Kzaplinsky V., Vyrazumskaya A. International public law. Warsaw, 2004.

15. Dvorkin R. Seriously about rights. M., 2004. S. 51.

16. International law: Collection of lectures for universities / ed. Streltsova N.K. - M.: MGUPRAV, 2003.

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