Conscientiousness in compliance with international obligations. Conscientious fulfillment of international obligations
This principle is based on the norm ras1a]ing zeguapya, known since ancient times (meaning contracts must be respected). Article 2 of the UN Charter speaks of the obligation of UN members to comply with their obligations. This principle was enshrined in the Vienna Convention on the Law of International Treaties of 1969, the Declaration of 1970, the Helsinki Final Act of the CSCE of 1975 and other documents.
14. The concept of subjects of public international law.
Subjects of international law are bearers of international rights and obligations arising from international treaties and international customs. This property is called legal personality.
Any subject of international law has legal capacity, legal capacity and delictual capacity.
The legal capacity of a subject of international law means his ability to have legal rights and obligations.
The legal capacity of a subject of international law is the acquisition and implementation by the subject independently, through his actions, of rights and obligations. Subjects of international law bear independent responsibility for their actions, i.e. have delictual capacity.
The following can be distinguished characteristics of subjects of international law:
1) the ability to act independently, to
dependent implementation of international rights and is obliged
news;
2) the fact of participation or the possibility of participation in international
native legal relations;
3) participation status, i.e. certain nature of participation
in international legal relations.
Subject of modern international law- it is a real or potential subject of international legal relations, possessing international rights and obligations, certain norms of international law and capable of bearing international legal responsibility.
Types of subjects of international law:
1) a state with sovereignty;
2) nations and peoples fighting for independence;
3) international universal organizations;
4) state-like organizations.
15. The state as a subject of international public law
States are the original and main subjects of international law, which determined its emergence and development. The state, unlike other subjects of international law, has universal legal personality, independent of the will of other subjects. Even an unrecognized state has the right to defend its territorial integrity and independence and govern the population on its territory.
The first attempt to codify the international legal characteristics of a state was made in the Inter-American Convention on the Rights and Duties of the State of 1933.
The characteristics of the state are:
Sovereignty;
Territory;
Population;
The determining role of states is explained by their sovereignty - the ability to independently implement foreign policy in the international arena and power over the population of their territory. This implies equal legal personality of all states.
A state is a subject of international law from the moment of its establishment. Its legal personality is not limited by time and is the largest in scope. States can enter into treaties on any subject and at their discretion. They develop norms of international law, promoting their progressive development, ensure their implementation and terminate the operation of these norms.
States create new subjects of international law (international organizations). They determine the content of the object of international legal regulation, contributing to its expansion by including issues that previously fell within their internal competence (for example, human rights).
16.Legal personality of peoples and nations.
A nation or people (a general term referring to a multinational population) is a relatively new subject of international law, which received recognition as a result of the principle of self-determination of peoples being enshrined in the UN Charter. The right of a people to self-determination means, according to the 1970 Declaration, the right to freely determine their political status and pursue economic, social and cultural development without any outside interference.
Political status means either the creation of a state, if the nation did not have one, or annexation or unification with another state. If there is a state within a federation or confederation, a nation can secede from it.
Not all nations and peoples can be recognized as subjects of international law, but only those who really fight for their independence and have created bodies of power and administration that are able to represent the interests of the entire nation and people in international relations.
Thus, the legal personality of a nation is closely related to the achievement of self-determination of the state. It manifests itself in the conclusion of agreements with other states on assistance, participation in the activities of international organizations as an observer.
17.Legal personality of international organizations.
International intergovernmental organizations are derivative subjects of international law. They are called derivative entities because they are created by states by concluding an agreement - a constituent act, which is the charter of the organization. The scope of legal personality, as well as its provision, depends on the will of the founding states and is enshrined in the charter of the international organization. Therefore, the scope of legal personality of international organizations is not the same; it is determined by the constituent documents of the international organization. The UN has the largest legal personality. Its members are 185 states. The Republic of Belarus is one of the 50 founding states of the UN, having signed its Charter at the San Francisco Conference in 1945.
The legitimacy of any international organization is determined by the compliance of its constitutional principles with the principles of the UN Charter. In the event of a conflict between the international obligations of a state under the UN Charter, priority is given to the UN Charter.
The legal personality of an international organization exists regardless of the will of the member states, even if its constituent documents do not directly say that the international organization has legal personality, and a special one, i.e. limited by the goals of the organization and its charter.
As a subject of international law, any international intergovernmental organization has the right to conclude treaties, but only on issues provided for by the UN Charter, to have representative offices in member states (for example, the UN representative office in the Republic of Belarus).
Thus, an international (interstate) organization is an association of states created on the basis of an international treaty to fulfill certain goals, having an appropriate system of bodies, possessing rights and obligations that are different from the rights and obligations of member states, and established in accordance with international law.
18.Legal personality of state-like entities.
State-like entities are endowed with a certain amount of rights and responsibilities, act as participants in international communication, and have sovereignty.
Examples of state-like entities include free cities (Jerusalem, Danzig, West Berlin), the status of which was determined by an international agreement or a resolution of the UN General Assembly (for Jerusalem). Such cities had the right to conclude international treaties and were subject only to international law. These subjects were characterized by demilitarization and neutralization.
The Vatican is a state-like entity, created on the basis of the Lateran Treaty in 1929. It participates in a number of international organizations and conferences and is headed by the head of the Catholic Church - the Pope.
19.International legal personality of individuals
The problem of recognizing an individual as a subject of international law is debatable and largely controversial. Some authors deny the legal personality of an individual, others recognize in him certain qualities of a subject of international law.
Thus, A. Ferdross (Austria) believes that “individuals, in principle, are not subjects of international law, since international law protects the interests of individuals, but does not give rights and responsibilities directly to individuals, but only to the state of which they are citizens” 2 . Other experts believe that an individual can only be a subject of international legal relations. “Individuals, being under the power of the state, do not act in the international arena on their own behalf as subjects of international law,” writes V. M. Shurshalov. “All international treaties and agreements on the protection of the individual, fundamental rights and freedoms of man are concluded by states, and therefore specific rights and obligations from these agreements arise for states, not for individuals. Individuals are under the protection of their state, and those norms of international law that are aimed at protecting fundamental human rights and freedoms are mainly implemented through states” 1. In his opinion, according to the current norms of international law, an individual sometimes acts as a subject of specific legal relations, although he is not a subject of international law 2.
Back at the beginning of the 20th century. F. F. Marten took approximately the same position. Individual individuals, he wrote, are not subjects of international law, but have certain rights in the field of international relations that arise from: 1) human personality taken in itself; 2) the position of these persons as subjects of the state 3.
The authors of the seven-volume “Course of International Law” classify the individual as the second category of subjects of international law. In their opinion, individuals, “possessing 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” 4 .
The English international lawyer J. Brownlie takes a contradictory position on this issue. On the one hand, he rightly believes that there is a general rule according to which an individual cannot be a subject of international law, and in certain contexts the individual acts as a subject of law on the international plane. However, according to J. Brownlie, “it would be useless to classify an individual as a subject of international law, since this would presuppose that he has rights that do not actually exist, and would not eliminate the need to distinguish between an individual and other types of subjects of international law.” rights" 5.
A more balanced position is taken by E. Arechaga (Uruguay), according to whom, “there is nothing in the very structure of the international legal order that could prevent states from granting individuals certain rights arising directly from any international treaty, or from providing for them certain rights.” then international means of protection" 1 .
L. Oppenheim noted back in 1947 that “although states are normal subjects of international law, they can consider individuals and other persons as directly endowed with international rights and obligations and, within these limits, make them subjects of international law.” He further clarifies his opinion as follows: “Persons engaged in piracy were subject to the rules established primarily not by the domestic law of various states, but by international law” 2.
Japanese professor S. Oda believes that “after the First World War, a new concept was formulated, according to which individuals can be held accountable for violations against international peace and law and order, and they can be prosecuted and punished under international procedure” 3 .
Oxford University professor Antonio Cassis believes that, in accordance with modern international law, individuals have an international legal status. Individuals have limited legal personality (in this sense, they can be placed on a par with subjects of international law other than states: rebels, international organizations and national liberation movements) 4 .
Of the Russian international lawyers, the most consistent opponent of recognizing the legal personality of an individual is S. V. Chernichenko. The individual “does not and cannot have any element of international legal personality,” he believes 5. According to S.V. Chernichenko, an individual “cannot be “introduced into the rank” of subjects of international law by concluding agreements allowing direct appeals of individuals to international bodies” 6 As noted above (§ 1 of this chapter), subjects of international law must: first, to be real (active, active) participants in international relations; secondly, to have international rights and obligations; thirdly, to participate in the creation of norms of international law; fourthly, have the authority to ensure compliance with international law.
Currently, the rights and obligations of individuals or states in relation to individuals are enshrined in many international treaties. The most important of them are the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 1949; Geneva Convention relative to the Treatment of Prisoners of War, 1949; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949; Charter of the International Military Tribunal 1945; Universal Declaration of Human Rights 1948; Convention on the Prevention and Punishment of the Crime of Genocide, 1948; Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 1956; Convention on the Political Rights of Women 1952; Vienna Convention on Consular Relations 1963; International Covenant on Economic, Social and Cultural Rights 1966; International Covenant on Civil and Political Rights 1966; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; numerous conventions approved by the ILO 1. For example, Art. Article 6 of the 1948 Universal Declaration of Human Rights states: “Everyone, wherever he may be, has the right to recognition of his personality before the law.”
Among the regional treaties, we note the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and 11 protocols to it; The CIS Convention on Human Rights and Fundamental Freedoms of 1995. Similar conventions exist in other regions of the world.
These treaties establish the rights and obligations of individuals as participants in international legal relations, provide an individual with the right to appeal to international judicial institutions with a complaint against the actions of subjects of international law, determine the legal status of certain categories of individuals (refugees, women, children, migrants, national minorities, etc. .).
International rights of individuals, arising from generally recognized principles and norms of international law, are enshrined in approximately 20 multilateral and a number of bilateral treaties.
For example, according to Art. 4 of the Supplementary Convention for the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, a slave who finds refuge on a ship of a state party to this Convention 1p50 GaSH becomes free. The International Covenant on Economic, Social and Cultural Rights of 1966 recognizes the right of every person to: a) participate in cultural life; b) use of the results of scientific progress and their practical application; c) enjoy the protection of moral and material interests arising in connection with any scientific, literary or artistic works of which he is the author.
In accordance with Art. 6 of the International Covenant on Civil and Political Rights of 1966, the right to life is an inalienable right of every person. This right is protected by law. No one can be arbitrarily deprived of life. Thus, in this article, international law guarantees the individual the right to life. Article 9 of the Covenant guarantees the individual the right to liberty and security of person. Anyone who has been the victim of unlawful arrest or detention has the right to enforceable compensation. According to Art. 16 Every person, wherever he is, has the right to recognition of his legal personality.
The CIS Convention on Human Rights and Fundamental Freedoms of 1995 states: “Every person, wherever he is, has the right to recognition of his legal personality” (Article 23).
The International Court of Justice in its decision of June 27, 2001 in the case of the LaGrand brothers against the United States noted that a violation of Art. 36 of the Vienna Convention on Consular Agreements of 1963 by the United States constitutes a violation of the individual rights of the LaGrand brothers 1 .
In the Russian Federation, the rights and freedoms of man and citizen are recognized and guaranteed in accordance with generally accepted principles and norms of international law(Article 17 of the Constitution).
The issue of the legal personality of individuals is enshrined in bilateral treaties of the Russian Federation. For example, in Art. 11 of the 1993 Treaty on Friendly Relations and Cooperation between the Russian Federation and Mongolia states that the parties will do their best to expand contacts between citizens of both states. About the same norm
enshrined in the Treaty on Friendly Relations and Cooperation between the RSFSR and the Hungarian Republic of 1991.
1. International responsibility of individuals. The Charter of the International Military Tribunal of 1945 recognizes the individual as a subject of international legal responsibility. According to Art. 6 leaders, organizers, instigators and accomplices who participated in the formulation or implementation of a general plan or conspiracy aimed at committing crimes against peace, war crimes and crimes against humanity are responsible for all acts committed by any persons for the purpose of carrying out such plan. The official position of the defendants, their position as heads of state or responsible officials of various government departments should not be considered as a basis for exemption from liability or mitigation of punishment (Article 7). The fact that the defendant acted on the orders of the government or the order of his superior does not exempt him from responsibility (Article 8).
According to the Convention on the Non-Applicability of the Statute of Limitations for War Crimes and Crimes against Humanity, 1968, in the event of the commission of any crime, namely war crimes and crimes against humanity, whether or not they were committed during the war or in peacetime, as defined in the Charter of the Nuremberg International Military Tribunal, statutes of limitations do not apply.
The subjects of liability are representatives of public authorities and private individuals who act as perpetrators of these crimes or accomplices of such crimes or directly incite others to commit such crimes, or participate in a conspiracy to commit them, regardless of their degree of completion, as well as representatives of state authorities allowing their commission (Article 2).
The Convention obliges States Parties to take all necessary domestic measures, legislative or otherwise, aimed at ensuring that in accordance with international law create all conditions for the extradition of persons specified in Art. 2 of this Convention.
The individual is a subject of international legal responsibility, and according to the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, persons who commit genocide or any other acts (for example, complicity in genocide, conspiracy to commit genocide) are subject to punishment regardless of whether they are constitutionally responsible rulers, officials or private individuals Persons accused of committing genocide and other similar acts must be tried by the competent court of the state in whose territory the act was committed or by an international criminal court. Such a court can be created by states parties to the Convention or the UN.
2. Granting an individual the right to apply to international
new judicial institutions. According to Art. 25 European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950, any person or
a group of persons has the right to send a petition to the European Commission
on human rights. Such a petition must contain convincing
evidence that these individuals are victims of violations
the relevant State Party to the Convention
right Applications are deposited with the Secretary General
Council of Europe 1. The commission may accept the case for consideration
only after, in accordance with generally accepted
the norms of international law have exhausted all internal
means of protection and only for six months from the date of adoption
final internal decision.
According to Art. 190 of the 1982 UN Convention on the Law of the Sea, an individual has the right to bring a claim to a state party to the Convention and demand that the case be heard by the Tribunal for the Law of the Sea.
The right of an individual to appeal to international judicial bodies is recognized in the constitutions of many states. In particular, paragraph 3 of Art. 46 of the Constitution of the Russian Federation states: everyone has the right, in accordance with international treaties of the Russian Federation, to apply to international bodies to protect human rights and freedoms, if all available domestic remedies have been exhausted (Article 46).
3. Determination of the legal status of certain categories of individuals
Dov. According to the 1951 Refugee Convention, personal
The status of a refugee is determined by the laws of the country of his domicile or,
if he does not have one, by the laws of his country of residence. Con
Venice enshrines the right of refugees to gainful employment, choice
professions, freedom of movement, etc.
The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that every migrant worker and every member of his family everywhere has the right to recognition of his personality before the law. We are talking, of course, first of all about the recognition of international legal personality, since, according to Art. 35 of the Convention, states must not interfere with the international migration of workers and members of their families.
International law also determines the legal status of a married woman, child and other categories of individuals.
The above examples give reason to assume that states, for a number of problems (even if only a few), endow individuals with the qualities of international legal personality. The scope of such legal personality will undoubtedly increase and expand, since each historical era gives rise to its own subject of international law.
For a long time, the only full-fledged subjects of international law were states. In the 20th century new subjects are involved - intergovernmental organizations, as well as nations and peoples fighting for their independence. In the 21st century the scope of legal personality of individuals will be expanded, and the legal personality of other collective entities (for example, international non-governmental entities, transnational corporations, church associations) will be recognized.
Opponents of recognizing an individual as a subject of international law, as the main argument in support of their position, refer to the fact that individuals cannot enter into international public law treaties and thus cannot participate in the creation of norms of international law. Indeed, this is a fact. But in any area of law, its subjects have inadequate rights and responsibilities. For example, in international law, contractual legal capacity is fully inherent only in sovereign states. Other entities - intergovernmental organizations, state-like entities, and even nations and peoples fighting for independence - have limited contractual legal capacity.
As Prince E.N. Trubetskoy noted, a subject of law is anyone who is capable of having rights, regardless of whether he actually uses them or not 1 .
Individuals have international rights and obligations, as well as the ability to ensure (for example, through international judicial bodies) that subjects of international law comply with international legal norms. This is quite enough to recognize an individual’s qualities as a subject of international law
20. The concept of recognition and its legal consequences.
International legal recognition- This is a unilateral voluntary act of the state in which it states that it recognizes the emergence of a new entity and intends to maintain official relations with it.
The history of international relations is familiar with cases of immediate recognition of new states and governments, as well as persistent refusals to do so. For example, the USA was recognized in the 18th century. France at a time when they had not yet completely freed themselves from dependence on England. The Republic of Panama was recognized by the United States in 1903 literally two weeks after its formation. The Soviet government was recognized by the United States only in 1933, that is, 16 years after its formation.
Recognition usually involves a state or group of states approaching the government of the emerging state and declaring the scope and nature of its relationship with the newly emerging state. Such a statement is usually accompanied by an expression of the desire to establish diplomatic relations with the recognized state and exchange representations. For example, in a telegram from the Chairman of the Council of Ministers of the USSR to the Prime Minister of Kenya dated December 11, 1963, it was noted that the Soviet government “solemnly declares its recognition of Kenya as an independent and sovereign state and expresses its readiness to establish diplomatic relations with it and exchange diplomatic representations at the embassy level "
In principle, an application for the establishment of diplomatic relations is a classic form of recognition of a state, even if the proposal for the establishment of such relations does not contain a statement of official recognition.
Recognition does not create a new subject of international law. It may be complete, final and official. This type of recognition is called recognition of her ^ge. Incomplete recognition is called ye Gas1o.
Confession be Gas1o (actual) occurs in cases where the recognizing state does not have confidence in the strength of the recognized subject of international law, and also when it (the subject) considers itself a temporary entity. This type of recognition can be realized, for example, through the participation of recognized entities in international conferences, multilateral treaties, and international organizations. For example, in the UN there are states that do not recognize each other, but this does not prevent them from participating normally in its work. Recognition of a country, as a rule, does not entail the establishment of diplomatic relations. Trade, financial and other relations are established between states, but there is no exchange of diplomatic missions.
Since recognition is temporary, it can be withdrawn if the missing conditions required for recognition are not met. Retraction of recognition occurs when recognizing the yoke of a rival government that has managed to gain a strong position, or when recognizing the sovereignty of a state that has annexed another state. For example, Great Britain withdrew recognition of Ethiopia (Abyssinia) as an independent state in 1938 due to the fact that she admitted<1е ]иге аннексию этой страны Италией.
Confession yeah doge (official) is expressed in official acts, for example, in resolutions of intergovernmental organizations, final documents of international conferences, in government statements, in joint communiqués of states, etc. This type of recognition is realized, as a rule, through the establishment of diplomatic relations, the conclusion of agreements on political , economic, cultural and other issues.
In the practice of recognizing states, there have been many cases where the form of recognition was directly indicated in the application for recognition. For example, in a note from Great Britain dated February 2, 1924, it was noted that the British government no longer recognizes the government of the USSR within the territory of the former Russian Empire, which is subject to its authority. Moreover, this note emphasized that “recognition of the Soviet Government of Russia automatically brings into force all agreements concluded between both countries before the Russian revolution, with the exception of those whose terms have formally expired.”
Recognition ai Nos is a temporary or one-time recognition, recognition for a given occasion, a given purpose.
Recognition of states. According to the fair opinion of D.I. Feldman, recognition of a state is at the same time a kind of offer to establish legal relations with the recognized state. Nevertheless, in principle, recognition is a political act of two states - the recognizing and the recognized 1. In the science of international law, the following two theories are formulated to explain the role and significance of recognition of states.
21.Types of recognition
There is a distinction between recognition of states and recognition of governments.
For recognition of states There are two theories: constitutive and declarative. The first proceeds from the fact that only recognition makes a state a subject of international law. According to the second, most recognized, recognition only states the emergence of a new state and facilitates contacts with it.
There is no obligation to recognize a state, but prolonged non-recognition can seriously complicate relations between states. Recognition can be explicit (a statement by a government recognizing a state), but can sometimes be seen in certain actions - for example, in a proposal to establish diplomatic relations.
There are two forms of recognition of states: de jure and de facto.
De jure recognition is complete, final, entails the establishment of diplomatic relations.
De facto recognition does not entail the establishment of diplomatic relations, and is an expression of uncertainty that this entity will exist for a long time.
Recognition of governments is a voluntary act of the government of an already recognized state, indicating that it, firstly, considers the government of another state capable of representing this state and, secondly, intends to maintain official relations with it. Government recognition can be either complete and final, or temporary, limited to certain conditions.
De jure recognition of the new government is expressed in a declaration and such recognition; it is retroactive.
De facto recognition does not mean full recognition of the competence of individual authorities; it can be expressed in the signing of agreements that are temporary or limited in nature.
22. The concept of succession
Succession- This is a transfer of rights and obligations as a result of the replacement of one state by another in bearing responsibility for the international relations of a territory. For example, the unification of Germany, the separation of Latvia, Lithuania and Estonia from the USSR in 1991, the collapse of the USSR, etc. In all these cases, the question arises about the impact of changes on international obligations, about the fate of property or, in other words, about legal succession.
Under the auspices of the UN, two conventions on succession have been adopted: the Vienna Convention on the Succession of States in Respect of Treaties of 1978 and the Vienna Convention on the Succession of States in Respect of State Property, Public Archives and Public Debts of 1983 (hereinafter referred to as the 1983 Convention). Both of these conventions have not become effective, but are actually being applied even without the required number of ratifications.
23.Succession in relation to international treaties.
Succession does not apply to treaties establishing borders and their regime, as well as obligations regarding the use of any territory established in favor of a foreign state.
When a part of the territory passes from one state to another, the the principle of fluidity of contractual boundaries, according to which the scope of the treaty is reduced or expanded along with the borders of the state. The exception is those treaties that are directly related to the ceded territory. This also applies to UN membership. As for the state formed on the seceded territory, when deciding on the obligations of the new state under the treaties of the predecessor state, political factors play a large role, but traditionally the new state does not bear obligations under the treaties of the predecessor state.
24.Succession in relation to state property.
Basic rules on succession in relation to state property are contained in the 1983 Convention. These rules apply only to state property of the predecessor state. The succession regime does not apply to the rights and obligations of individuals and legal entities.
With regard to compensation for property passing to the successor State, the transfer of ownership must take place without compensation, unless otherwise agreed by the States concerned or provided for by a decision of the relevant international body (Article 11 of the 1983 Convention). However, the 1983 Convention provides that its provisions are without prejudice to any question of just compensation between the predecessor State and the successor State which may arise as a result of succession upon the division of a State or the separation from it of part of a territory.
The rules of succession establish a different regime for the transfer of movable and immovable property. When states unite, all state property of the predecessor states passes to the successor state. When a state is divided and two or more successor states are formed on its territory:
Immovable property of the predecessor state
nick passes to that successor state in the territory
the torii of which it is located;
Immovable property located outside of
lamy of the predecessor state, passes to the sovereign
successor States, as specified in the 1983 Convention,
"in fair shares";
movable property of the predecessor state
ka related to its activities in relation to the territories,
being the object of succession, passes to the corresponding
to the respective successor state; other movable property
ownership passes to successors “in equal shares.” In the event of the transfer of part of the territory of one state to another, the transfer of state property is regulated by an agreement between these states.
The provisions on succession to state property do not apply to nuclear weapons, which are also such property.
25.Succession in relation to state archives.
Concerning state archives, then the 1983 Convention provides for the obligation of the predecessor state to take measures to prevent damage to or destruction of archives that pass to the successor state. Succession does not concern archives that are located on the territory of the predecessor state, but belong to a third state according to the internal law of the predecessor state (Article 24 of the 1983 Convention). When states unite and one successor state is formed, the state archives of the predecessor states pass to it. When a state is divided, when several successor states arise in its place, part of the archives of the predecessor state, which must be located on the territory of the successor state for the purpose of normal administration of this territory, passes to this state. Another part of the archives that is directly related to his territory also goes to him.
When a part of its territory is separated from a state on which a new state is formed, part of the archives of the predecessor state, which for the purposes of normal administration of the separated territory must be located on this territory, passes to the successor state. Similar rules apply when the seceded part of the state merges with another state. By agreement between the predecessor and successor states, different rules of succession regarding state archives may be established, but the right of the peoples of these states to development and information about their history and cultural heritage must not be violated.
26.Succession in relation to public debts.
The 1983 Convention also regulates issues of succession of states in relation to government debts. Succession, except in special cases, does not prejudice the rights of those who provided the loan. When states unite and form one successor state, the public debts of the predecessor states are transferred to it.
When the state is divided into several parts, and unless the successor states agree otherwise, the public debt passes to them in an equitable share, taking into account the property, rights and interests that pass to them in connection with the public debt. A similar rule, in the absence of an agreement, applies when part of the territory of a state is separated and a successor state is formed on it, or when the separated part of the territory is united with another state, as well as when part of the territory is transferred from one state to another.
27.Succession in relation to the citizenship of individuals
Succession of states in relation to the nationality of individuals. As New Zealand lawyer O'Connell rightly notes, “the consequences of a change in sovereignty for the citizenship of the inhabitants (of the territory affected by succession) represent one of the most difficult problems in the field of legal rules on state succession” 1.
The problem of citizenship in the case of state succession requires the development and adoption of a universal convention. Although citizenship is primarily governed by the domestic law of a state, it has a direct bearing on the international legal order. It is no coincidence that on May 14, 1997, the Council of Europe adopted the European Convention on Nationality, which contains, in particular, provisions relating to the loss and acquisition of nationality in cases of state succession. Another body of the Council of Europe, the European Commission for Democracy through Law (Venice Commission), adopted in September 1996 the Declaration on the Effects of State Succession on the Nationality of Natural Persons.
The 1948 Universal Declaration of Human Rights was the first international document to establish “the right of every person to a nationality.” The International Covenant on Civil and Political Rights 1966 and the Convention on the Rights of the Child 1989 recognize the right of every child to acquire a nationality.
The UN International Law Commission has developed the “Draft Articles on the Nationality of Natural Persons in Connection with the Succession of States.” The main provisions of this document are as follows.
Any person who, at the date of State succession, had the nationality of the predecessor State, regardless of the manner of acquiring that nationality, is entitled to the nationality of at least one of the States concerned. Moreover, it does not matter whether they acquired the citizenship of the predecessor state by birth, by virtue of the principle D13 $oI (right of soil) or.
The affected States shall take all appropriate measures to prevent persons who, at the date of State succession, had the nationality of the predecessor State from becoming stateless as a result of such succession. Any international treaty providing for the transfer of territory must include provisions to ensure that no person becomes stateless as a result of such transfer.
Each State has the duty to enact legislation relating to nationality and other related matters arising in connection with State succession without undue delay. This is exactly what happened in the case of the emergence of a number of new independent states. For example, simultaneously with the division of Czechoslovakia, the Czech Republic adopted the Law on the Acquisition and Loss of Citizenship on December 29, 1992, and Croatia, with the declaration of its independence on June 28, 1991, adopted the Law on Citizenship.
The granting of citizenship in connection with the succession of States occurs on the date of the succession of States. The same applies to the acquisition of nationality through the exercise of an option if, during the period between the date of the succession of States and the date of the exercise of such an option, the persons concerned would become stateless. The successor State is not obliged to grant its nationality to the persons concerned if they have their habitual residence in another State and also have the nationality of that or any other State. The successor State shall not grant its nationality to affected persons having their habitual residence in another State against the will of the affected persons unless they would otherwise become stateless.
When the acquisition or loss of nationality due to State succession affects the unity of a family, the States concerned shall take all appropriate measures to ensure that the family remains united or reunified. In treaties concluded after the First World War, the general policy was to ensure that members of a family acquired the same nationality as the head of the family, whether the latter acquired it automatically or by option. The principle of family unity, for example, was enshrined in Art. 37, 85, 91, 116 and 113 of the Peace Treaty between the Allied and Associated Powers and Germany of 1919; Art. 78-82 Peace Treaty between the Allied and Associated Powers and Austria, 1919; Art. 9 of the Tartu Peace Treaty of December 11, 1920 regarding the cession of the Petsamo region by Russia to Finland; Art. 21 and 31-36 of the Treaty of Lausanne 1923
When part or parts of the territory of a State are separated from that State and form one or more successor States, while the predecessor State continues to exist, the successor State grants its nationality to: a) the persons concerned having their habitual residence in its territory; b) having a proper legal connection with the administrative-territorial entity of the predecessor state, which became part of this successor state.
The principle of habitual residence was applied in the creation of the Free City of Danzig (Article 105 of the Treaty of Versailles, 1919) and the dismemberment of the Austro-Hungarian Empire (Article 70 of the Treaty of Saint-Germain, 1919). It was later used during the separation of Bangladesh from Pakistan in 1971, and when Ukraine (Article 2 of the Law on Citizenship of Ukraine 1991) and Belarus (Article 2 of the Law on Citizenship of the Republic of Belarus 1991) became independent after the collapse of the USSR. The "place of birth" criterion was applied in the case of the separation of Eritrea from Ethiopia in 1993.
28.The law of international treaties, its sources and codification.
Law of international treaties - This is a branch of international law, which is a set of international legal norms governing the relations of subjects of international law regarding the conclusion, execution and termination of international treaties.
The main sources of the law of international treaties are the conventions developed by the UN International Law Commission:
Vienna Convention on the Law of Treaties
1969;
Vienna Convention on Succession of States in Relation
agreement on international treaties of 1978;
UN Vienna Convention on the Law of Treaties between Governments
donations and international organizations in 1986
The term "international treaty"
According to the Vienna Convention on the Law of Treaties of 1969, the term "treaty" means an international agreement concluded between States in writing and governed by international law, whether such agreement is contained in a single document, in two or more related documents, and also regardless of its specific name.
Law of the Republic of Belarus dated October 23, 1991 No. 1188-ХП “On international treaties of the Republic of Belarus” (as amended by the Law dated November 15, 2004 .\ g d 331-3 defines an international treaty of the Republic of Belarus as an interstate, intergovernmental or international agreement of interdepartmental nature, concluded in writing by the Republic of Belarus with a foreign state (foreign states) and (or) with an international organization (international organizations), which is governed by international law, regardless of whether the agreement is contained in one document or in several related documents, and also regardless of its specific name and method of conclusion (treaty, agreement, convention, decision, pact, protocol, exchange of letters or notes, etc.).
29. Procedure for concluding contracts.
The conclusion of an international treaty consists of two stages:
1) agreement of wills regarding the text of the agreement;
2) agreement of wills regarding obligation before
dialect
First stage concluding a bilateral treaty consists of conducting negotiations between the parties and reaching agreement with the developed text, and when concluding a multilateral treaty, this stage consists of developing and adopting the text of the treaty by an international conference or body of an international organization.
To participate in negotiations, a representative must have authority. Without the need to present credentials, the following are considered to represent their state:
a) heads of state, heads of government and ministers
foreign affairs - for the purpose of carrying out all acts regarding
those seeking to conclude an agreement;
b) heads of diplomatic missions - for the purpose of
adoption of the text of the agreement between the accrediting state
state and the state in which they are accredited;
c) representatives authorized by states to
present them at an international conference or in an international
native organization, or in one of its bodies, - for the purpose of
adoption of the text of the treaty at such a conference, in such
organization or such body.
Once the text of the contract has been agreed upon and adopted, it becomes necessary to somehow record that this text is final and is not subject to change by the authorized representatives. The procedure by which the adopted text of a treaty is declared final is called establishing the authenticity of the text. This is a special substage in the conclusion of an international treaty, since every government, before taking on obligations under the treaty, must know exactly what its final content is. The procedure for establishing the authenticity of a text is determined either in the text itself, or by agreement between the contracting states. Currently, the following forms of establishing the authenticity of the text of international treaties are used: initialing, inclusion of the text of the treaty in the final act of the international conference at which it was adopted, inclusion of the text of the treaty in the resolution of an international organization, etc. In addition, if after the adoption of the text of the international treaty there is its signing, then the conclusion of the contract, as it were, bypasses the stage of establishing the authenticity of the text.
Initialing - This is the authentication of the text of a treaty by the initials of the authorized contracting states as evidence that this agreed text of the treaty is final. Initialing can only apply to individual articles and is usually used when concluding bilateral agreements. Since it is not essentially a signing, since it does not express the state’s consent to be bound by an international treaty, no special powers are required for this procedure. Its purpose is to be evidence of the final agreement on the text of an international treaty. Once initialed, the text cannot be changed even by agreement between the authorized representatives. Initialing allows you to avoid possible disputes and misunderstandings regarding the final wording of the provisions of the contract. This is also its importance. But initialing does not replace signing a contract.
Second stage The conclusion of an international treaty consists of individual actions of states, which, depending on the terms of a particular treaty, may be different.
The consent of a state to be bound by a treaty can be expressed by signing the treaty, exchanging documents forming the treaty, ratifying the treaty, accepting it, approving it, acceding to it, or in any other way agreed upon by the parties.
Signing the contract depending on the terms of the agreement, it may be the completion of the process of its conclusion (if the agreement comes into force from the moment of signing) or one of the stages of conclusion (if the agreement requires ratification or approval). Ratification - This is the act of approval of a treaty by one of the highest bodies of the state, which expresses consent to be bound by the treaty. Treaties that provide for it or in respect of which the corresponding intention of the parties is otherwise established are subject to mandatory ratification. Approval, acceptance those agreements are subject to which the parties have provided for this procedure and which are not subject to ratification. Joining - It is the act of consenting to be bound by a treaty already concluded by other states. The possibility of accession must be provided for in the agreement itself or agreed upon with its participants.
30.Form and structure of the agreement.
The form of the contract (oral or written) is chosen by the parties, but the dominant form is the written form.
An international treaty can be called differently: convention, agreement, pact, exchange of notes.
The agreement consists of three parts:
preamble(contains an indication of the motives and purposes of the agreement);
main part(determines the subject of the agreement, the rights and obligations of the parties);
final part(establishes the procedure for the entry into force of the agreement and the duration of its validity).
The language of the agreement is determined by the parties. Usually these are the languages of both contracting parties and one more - neutral. Treaties can also be concluded in the official languages of the UN. The so-called alternative rule: in any listing of contracting states, their representatives, and capitals, the first place should always be the state (representative, etc.) that owns this copy of the treaty, which includes texts in both languages.
31. Duration of the contract.
In international law, the principle “agreements must be respected” operates, according to which a party to a treaty must not only comply with this agreement, but also not enter into new ones that contradict an already concluded one. Failure to comply with this principle can lead to international legal liability.
The parties cannot rely on their internal law to justify non-fulfillment of the contract.
As for the validity of the treaty in time and space, according to the terms, contracts are divided into fixed-term, open-ended, indefinite-term, and according to the scope of validity in space - into universal (can apply to states around the world) and regional (the participation of states of one region is assumed).
The principle of faithful fulfillment by states of their international obligations- one of the oldest principles of international law, without which it is difficult to imagine the very existence of the international legal system. It is no coincidence that almost simultaneously with the first international treaties, the first means of ensuring them appeared. If states could be arbitrary about the need to strictly adhere to their obligations, all other norms and principles of international law would become meaningless. The very system of principles as generally binding norms inevitably presupposes strict implementation of the relevant rules and only if this condition is present does it become an effective regulator of international relations. Therefore, it is generally accepted that the principle of faithful fulfillment of international obligations is basis of modern international law.
Historically, the principle under consideration arose as a development of the formula pacta sunt servanda (contracts must be executed), which was adopted by public international law from Roman law. It is easy to see that the current formulation of the principle significantly expands the scope of its action. According to international legal doctrine, states must conscientiously fulfill not only treaty obligations, but also any obligations assumed in accordance with international law (for example, customary ones).
The UN Charter does not formally contain this principle, since it obliges states to strictly fulfill only those obligations that they have assumed in connection with membership in the Organization. Despite the importance of such obligations, the range of international responsibilities of any state is not limited to them. Therefore, the legal content of the principle of faithful fulfillment of international obligations is revealed more fully in the Declaration of Principles of 1970, the Final Act of the CSCE of 1975, as well as in the Vienna Convention on the Law of Treaties of 1969. The content of this principle includes the following basic provisions.
First, states must fulfill their international obligations in good faith. Conscientious fulfillment means accurate, timely and complete fulfillment of an obligation assumed in accordance with international law. In particular, states must implement international treaties in strict accordance with their spirit and letter, based on ordinary interpretation and in accordance with the basic principles of international law.
Secondly, when fulfilling an international obligation, no state has the right to invoke its national law. On the contrary, this principle requires all states to bring their domestic legislation into conformity with their international obligations, thereby ensuring the primacy of international law over national law.
Thirdly, the obligation to fulfill international obligations in good faith concerns only those obligations that do not contradict the basic principles of international law, and first of all, the system of international legal principles. Any rule of conduct that contradicts the spirit and principles of the UN Charter is legally void and therefore should not be enforced.
Fourthly, failure to fulfill international obligations by one state or another entails the onset of international responsibility - a system of measures aimed at restoring law and order. The principle of faithful fulfillment of international obligations is protected through the activities of special international bodies (judicial and arbitration), through multilateral and bilateral diplomacy, and in some cases, voluntarily by offending states.
Fifthly, international law contains an exhaustive list of grounds on which a state has the right to evade fulfillment of its international obligations. For example, the Vienna Convention on the Law of Treaties allows, in strictly defined cases, a state party to a treaty to refuse to perform it. Such cases cannot be considered a violation of the principle in question, since they are permitted by international law itself.
The practical implementation of the principle of conscientious fulfillment of international obligations often, as already noted, comes into conflict with the principle of non-interference in the internal affairs of a sovereign state. It should be emphasized once again: the obligations assumed by a state to the world community have absolute priority over its national interests and, therefore, cannot be attributed to the internal affairs of a given state. Therefore, the principle of faithful fulfillment of international obligations should be considered as the foundation of the system of international legal principles and international law in general. It is no coincidence that commitment to this principle in one form or another is enshrined in many international documents. For example, Article 1 of the 1994 Declaration on the Fundamentals of Relations between the Republic of Kazakhstan and the Kingdom of Spain contains the intention of the parties to build their relations on the basis of “... the voluntary fulfillment of their international obligations in accordance with international law.”
The principle of faithful fulfillment of international obligations is one of the fundamental imperative principles of modern international law. It arose in the form of the international legal custom pacta sunt servanda in the early stages of the development of statehood, and is currently reflected in numerous bilateral and multilateral international agreements.
As a generally accepted standard of conduct for subjects, this principle is enshrined in the UN Charter, the preamble of which emphasizes the determination of UN members to create conditions under which justice and respect for obligations arising from treaties and other sources of international law can be observed. According to paragraph 2 of Art. 2 of the Charter, all Members of the United Nations fulfill in good faith the obligations assumed under this Charter in order to ensure to all of them collectively the rights and benefits arising from being Members of the Organization. The development of international law clearly confirms the universal nature of P.d.v.m.o. According to the Vienna Convention on the Law of Treaties of 1969, every treaty in force is binding on its parties and must be performed by them in good faith. A party may not invoke the provisions of its internal law as an excuse for its failure to comply with the treaty. Scope of P.d.v.m.o. has expanded noticeably in recent years, which is reflected in the wording of the relevant international legal documents. Thus, according to the Declaration of Principles of International Law of 1970, each state is obliged to conscientiously fulfill the obligations assumed by it in accordance with the UN Charter, obligations arising from generally recognized norms and principles of international law, etc. obligations arising from international treaties valid in accordance with generally recognized principles and norms of international law. The authors of the Declaration sought to emphasize the need for conscientious compliance, first of all, with those obligations that are covered by the concept of “generally recognized principles and norms of international law” or stem from them. Different legal and socio-cultural systems have their own understanding of good faith, which directly affects states’ compliance with their obligations. The concept of integrity has been enshrined in a large number of international treaties, resolutions of the UN General Assembly, in declarations of states, etc. However, it should be recognized that determining the precise legal content of the concept of good faith in real situations can be difficult. It seems that the legal content of good faith should be derived from the text of the Vienna Convention on the Law of Treaties, mainly from the sections “Application of Treaties” (Articles 28–30) and “Interpretation of Treaties” (Articles 31–33). The application of the provisions of a treaty is largely determined by its interpretation. From this point of view, it can be assumed that the application of a contract will be fair if it is interpreted in good faith (in accordance with the ordinary meaning that should be given to the terms of the contract in their context, and also in the light of the object and purpose of the contract). P.d.v.m.o. applies only to valid agreements. This means that the principle in question applies only to international treaties concluded voluntarily and on the basis of equality. Any unequal international treaty, first of all, violates the sovereignty of the state and as such violates the UN Charter, since the United Nations is founded on the principle of the sovereign equality of all its members, who, in turn, have undertaken to develop friendly relations between nations based on respect for the principle equality and self-determination of peoples. It should be considered generally accepted that any treaty contrary to the UN Charter is void, and no state can invoke such a treaty or enjoy the benefits of it.
The principle in question, as if concluding the presentation of the basic principles of international law, originated and for a long time operated as the principle of compliance with international treaties - pacta sunt servanda ("treaties must be respected").
In the modern period, from a customary legal norm it has turned into a contractual norm, and its content has changed significantly and been enriched.
The preamble of the UN Charter speaks of the determination of peoples “to create conditions under which justice and respect for obligations arising from treaties and other sources of international law can be observed,” and in paragraph 2 of Art. Article 2 establishes the obligation of UN members to conscientiously fulfill the obligations assumed under the Charter, “in order to ensure to all of them collectively the rights and benefits arising from belonging to the membership of the Organization.”
An important stage in the contractual consolidation of this principle was the Vienna Convention on the Law of International Treaties of 1969. It notes that “the principle of free consent and good faith and the norm of pacta sunt servanda have received universal recognition.” In Art. 26 states: “Every valid agreement is binding on its participants and must be carried out in good faith by them.”
This principle received a detailed description in the Declaration of Principles of International Law of 1970, in the Final Act of the CSCE of 1975 and in other documents.
The meaning of this principle is that it is a universal and cardinal norm recognized by all states, expressing the legal obligation of states and other entities to observe and fulfill obligations adopted in accordance with the UN Charter, arising from generally recognized principles and norms of international law and corresponding international treaties and other sources of international law.
The principle of conscientious fulfillment of international obligations serves as a criterion for the legality of the activities of states in international and domestic relations. It acts as a condition for stability and effectiveness of the international legal order, consistent with the legal order of all states.
With the help of this principle, subjects of international law receive a legal basis to mutually demand from other participants in international communication the fulfillment of conditions associated with the enjoyment of certain rights and the performance of corresponding obligations. This principle allows us to distinguish legal activities from illegal, prohibited ones. In this aspect, it clearly manifests itself as a peremptory norm of international law. This principle, as it were, warns states about the inadmissibility of deviations in the treaties they conclude from the cardinal provisions of international law, expressing the fundamental interests of the entire international community, and emphasizes the preventive function of jus cogens norms. The principle of conscientious compliance with international obligations, linking mandatory norms into a single system of international legal regulations, is their integral part. However, if individual norms of jus cogens can be replaced by others on the basis of agreement between states, then such a replacement is impossible in relation to this principle: its abolition would mean the elimination of all international law.
In the process of developing this principle, it was provided that in the exercise of their sovereign rights, including the right to establish their own laws and administrative regulations, participating States would be consistent with their legal obligations under international law.
Essential features of the principle of conscientious fulfillment of international obligations are the inadmissibility of arbitrary unilateral refusal of undertaken obligations and legal liability for violation of international obligations, which occurs in the event of refusal to fulfill them or other actions (or inaction) of a party to the agreement that are unlawful. Violation of international obligations raises the question of responsibility not only for departure from the agreement, but also for an attack on the very principle of faithful fulfillment of international obligations.
