State and state-like education. Legal personality of state-like entities. Subjects of federal states

Only the presence of all three of the above elements (possession of rights and obligations arising from international legal regulations; existence as a collective entity; direct participation in the creation of international legal norms) gives, in my opinion, a reason to consider this or that entity as a full-fledged subject international law. The absence of at least one of the listed qualities in the subject does not allow us to speak about the possession of international legal personality in the exact meaning of the word.

Basic rights and obligations characterize the general international legal status of all subjects of international law. The rights and obligations inherent in subjects of a certain type (states, international organizations, etc.) form special international legal statuses for this category of subjects. The totality of the rights and obligations of a particular subject forms the individual international legal status of this subject.

Thus, the legal status of various subjects of international law is not the same, since the scope of international norms that apply to them and, accordingly, the range of international legal relations in which they participate are different.

International legal personality of states

It must be taken into account 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 registered as 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.

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.

International legal personality of international organizations

A separate group of subjects of international law is formed by international organizations. It's about on international intergovernmental organizations, i.e. organizations created by the primary subjects of international law.

Non-governmental international organizations, such as the World Federation of Trade Unions, Amnesty International, etc., are established, as a rule, by legal entities and individuals (groups of individuals) and are public associations “with a foreign element”. The statutes of these organizations, unlike the statutes of interstate organizations, are not international treaties. True, non-governmental organizations may have a consultative international legal status in intergovernmental organizations, for example, in the UN and its specialized agencies. Thus, the Inter-Parliamentary Union has the status of the first category in the UN Economic and Social Council. However, non-governmental organizations do not have the right to create norms of international law and, therefore, cannot, unlike intergovernmental organizations, have all the elements of international legal personality.

International intergovernmental organizations do not have sovereignty, do not have their own population, their own territory, other attributes of the state. They are created by sovereign entities on a contractual basis in accordance with international law and are endowed with a certain competence, fixed in the founding documents (primarily in the charter). The 1969 Vienna Convention on the Law of Treaties applies to the constituent documents of international organizations.

The charter of the organization defines the goals of its formation, provides for the creation of a certain organizational structure (acting bodies), and establishes their competence. The presence of permanent organs of the organization ensures the autonomy of its will; international organizations participate in international communication on their own behalf and not on behalf of their member states. In other words, the organization has its own (albeit non-sovereign) will, different from the will of the member states. At the same time, the legal personality of the organization is functional in nature, i.e. it is limited by statutory goals and objectives. In addition, all international organizations are required to comply with the basic principles of international law, and the activities of regional international organizations must be consistent with the purposes and principles of the UN.

The fundamental rights of international organizations are as follows:

• the right to participate in the creation of international legal norms;
• the right of the organization's bodies to exercise certain powers of authority, including the right to make binding decisions;
• the right to enjoy the privileges and immunities granted to both the organization and its employees;
• the right to consider disputes between participants, and in some cases with states not participating in this organization.

International legal personality of state-like entities

Some political-territorial formations also enjoy international legal status. Among them were the so-called. "free cities" West Berlin. This category of entities includes the Vatican and the Order of Malta. Since these formations are most like mini-states and have almost all the features of a state, they are called "state-like formations".

The legal capacity of free cities was determined by the relevant international treaties. Thus, according to the provisions of the Vienna Treaty of 1815, Krakow was declared a free city (1815-1846). According to the Versailles Peace Treaty of 1919, Danzig (1920-1939) enjoyed the status of a "free state", and in accordance with the peace treaty with Italy in 1947, the creation of the Free Territory of Trieste was envisaged, which, however, was never created.

West Berlin (1971-1990) had a special status granted by the quadripartite agreement on West Berlin in 1971. In accordance with this agreement, the western sectors of Berlin were united into a special political entity with their own authorities (Senate, prosecutor's office, court, etc.), to which some of the powers were transferred, for example, the issuance of regulations. A number of powers were exercised by the allied authorities of the victorious powers. The interests of the population of West Berlin in international relations were represented and defended by consular officials of the FRG.

The Vatican City is a city-state located within the capital of Italy, Rome. Here is the residence of the head catholic church— The Pope. The legal status of the Vatican is determined by the Lateran Agreements signed between the Italian state and the Holy See on February 11, 1929, which are basically still in force today. In accordance with this document, the Vatican enjoys certain sovereign rights: it has its own territory, legislation, citizenship, etc. The Vatican actively participates in international relations, establishes permanent missions in other states (there is also a representative office of the Vatican in Russia), headed by papal nuncios (ambassadors), participates in international organizations, in conferences, signs international treaties, etc.

The Order of Malta is a religious formation with its administrative center in Rome. The Order of Malta is actively involved in international relations, concludes agreements, exchanges representations with states, has observer missions in the UN, UNESCO and a number of other international organizations.

International legal status of subjects of the federation

In international practice, as well as foreign international legal doctrine, it is recognized that the subjects of some federations are independent states, whose sovereignty is limited by joining the federation. The subjects of the federation are recognized to have the right to act in international relations within the framework established by federal legislation.

The international activity of subjects of foreign federations develops in the following main directions: the conclusion of international agreements; opening representative offices in other states; participation in the activities of some international organizations.

The question arises whether there are norms in international law on the international legal personality of subjects of the federation?

As is known, essential element international legal personality is contractual legal capacity. It represents the right to directly participate in the creation of international legal norms and is inherent in any subject of international law from the moment of its inception.

The issues of concluding, executing and terminating treaties by states are regulated primarily by the Vienna Convention on the Law of Treaties of 1969. Neither the 1969 Convention nor other international documents provide for the possibility of independent conclusion of international treaties by subjects of the federation.

Generally speaking, international law does not contain a ban on the establishment of contractual relations between states and subjects of federations and subjects among themselves. However, international law does not classify these agreements as international treaties, just as contracts between the state and a large foreign enterprise are not. In order to be a subject of the law of international treaties, it is not enough to be a party to an international agreement. It is also necessary to have the legal capacity to conclude international treaties.

The question arises about the international legal status of the subjects of the Russian Federation.

International legal status of subjects of the Russian Federation

However, the processes of sovereignization that engulfed the newly independent states raised the question of the legal personality of the former national-state (autonomous republics) and administrative-territorial (regions, territories) formations. This problem has become especially important with the adoption new constitution RF in 1993 and the conclusion of the Federal Treaty. Today, some subjects of the Russian Federation have declared their international legal personality.

The subjects of the Russian Federation try to act independently in international relations, conclude agreements with the subjects of foreign federations and administrative-territorial units, exchange representations with them and fix the relevant provisions in their legislation. The charter of the Voronezh region of 1995, for example, recognizes that the organizational and legal forms of the region's international relations are forms generally accepted in international practice, with the exception of treaties (agreements) of the interstate level. Taking part in international and foreign economic relations on its own or with other subjects of the Russian Federation, the Voronezh Region opens representative offices on the territory of foreign states to represent the interests of the region, which operate in accordance with the legislation of the host country.

The normative acts of some constituent entities of the Russian Federation provide for the possibility of them concluding international treaties on their own behalf. Yes, Art. 8 of the 1995 Charter of the Voronezh Region establishes that international treaties of the Voronezh Region are part of the region's legal system. Norms of a similar content are fixed in Art. 6 of the Charter of the Sverdlovsk Region 1994, Art. 45 of the Charter (Basic Law) of the Stavropol Territory of 1994, art. 20 of the Charter Irkutsk region 1995 and other charters of the constituent entities of the Russian Federation, as well as in the constitutions of the republics (Article 61 of the Constitution of the Republic of Tatarstan).

Moreover, in some constituent entities of the Russian Federation, regulations have been adopted that regulate the procedure for concluding, executing and terminating contracts, for example, a law Tyumen region“On International Agreements of the Tyumen Region and Treaties of the Tyumen Region with the Subjects of the Russian Federation” 1995. The Law of the Voronezh Region “On Legal Normative Acts of the Voronezh Region” of 1995 establishes (Article 17) that the state authorities of the region have the right to conclude agreements that are normative -legal acts, with state authorities of the Russian Federation, with subjects of the Russian Federation, with foreign states on issues of their common, mutual interest.

However, the statements of the constituent entities of the Russian Federation about their international contractual legal capacity do not yet mean, in my deep conviction, the existence of this legal quality in reality. It is necessary to analyze the relevant norms of legislation.

Federal legislation does not address this issue yet.

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

The Federal Law "On International Treaties of the Russian Federation" of 1995 also refers the conclusion of international treaties of the Russian Federation to the jurisdiction of the Russian Federation. It has been established that the international treaties of the Russian Federation concerning issues related to the jurisdiction of the subjects of the Federation are concluded in agreement with the relevant bodies of the subjects. At the same time, the main provisions of treaties affecting issues of joint jurisdiction should be sent for submission of proposals to the relevant bodies of the subject of the federation, which, however, do not have the right to veto the conclusion of the treaty. The 1995 law does not say anything about the agreements of the subjects of the Federation.

It should also be taken into account that neither the Constitution of the Russian Federation nor the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” dated July 21, 1994 fix the norms on checking the constitutionality of international treaties of the subjects of the Federation, although such a procedure is provided for international treaties of the Russian Federation.

In Art. 27 of the Federal Constitutional Law “On the Judicial System of the Russian Federation” dated December 31, 1996, which establishes the competence of the constitutional (charter) courts of the constituent entities of the Russian Federation, among the legal acts that may be the subject of consideration in these courts, international treaties of the constituent entities of the Russian Federation are also not named.

Perhaps the only norm of federal legislation that indicates that the constituent entities of the Russian Federation have elements of contractual legal capacity is contained in Art. 8 of the Federal Law "On State Regulation of Foreign Trade Activities" of 1995, according to which the subjects of the Russian Federation have the right, within their competence, to conclude agreements in the field of foreign trade relations with subjects of foreign federal states, administrative-territorial formations of foreign states.

However, the provisions on the recognition of certain elements of international legal personality for the subjects of the Russian Federation are enshrined in many treaties on the delimitation of powers.

Thus, the Treaty of the Russian Federation and the Republic of Tatarstan dated February 15, 1994 "On the delimitation of subjects of jurisdiction and mutual delegation of powers between the state authorities of the Russian Federation and the state authorities of the Republic of Tatarstan" provides that the state authorities of the Republic of Tatarstan participate in international relations, establish relations with foreign states and conclude agreements with them that do not contradict the Constitution and international obligations of the Russian Federation, the Constitution of the Republic of Tatarstan and this Treaty, participate in the activities of relevant international organizations (clause 11, article II).

In accordance with Art. 13 of the Agreement on the delimitation of jurisdiction and powers between the state authorities of the Russian Federation and the state authorities of the Sverdlovsk region of January 12, 1996. The Sverdlovsk region has the right to act as an independent participant in international and foreign economic relations, if this does not contradict the Constitution of the Russian Federation, federal laws and international treaties of the Russian Federation, to conclude relevant treaties (agreements) with subjects of foreign federal states, administrative-territorial formations of foreign states, as well as ministries and departments of foreign states.

As for the practice of exchanging representations with subjects of foreign federations, this quality is not the main one in characterizing international legal personality, however, we note that neither the Constitution nor the legislation of the Russian Federation has yet regulated this issue. These representative offices are not opened on the basis of reciprocity and are accredited by any authority of a subject of a foreign federation or territorial unit. These bodies, being foreign legal entities, do not have the status of diplomatic or consular missions and are not subject to the provisions of the relevant conventions on diplomatic and consular relations.

The same can be said about the membership of the subjects of the Russian Federation in international organizations. It is known that the statutes of some international organizations (UNESCO, WHO, etc.) allow membership in them of entities that are not independent states. However, firstly, membership in these organizations of the constituent entities of the Russian Federation has not yet been formalized, and, secondly, this sign, as already mentioned, is far from the most important in characterizing the subjects of international law.

Considering the foregoing, we can draw the following conclusion: although at present the subjects of the Russian Federation do not fully possess all the elements of international legal personality, there is a tendency for the development of their legal personality and their registration as subjects of international law. In my opinion, this issue needs to be resolved in federal legislation.

International legal status of individuals

The problem of the international legal personality of individuals has a long tradition in the legal literature. Western scientists have long recognized the quality of international legal personality for an individual, arguing their position with references to the possibility of attracting individuals to international responsibility, appeals of an individual to international bodies for the protection of their rights. Besides, individuals in the countries of the European Union have the right to file claims with the European Court of Justice. After the ratification in 1998 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, individuals in Russia can also apply to the European Commission on Human Rights and the European Court of Human Rights.

Soviet lawyers for ideological reasons for a long time denied that the individual has international legal personality. However, in the late 80s. and in the domestic international legal literature, works began to appear in which individuals began to be considered as subjects of international law. At present, the number of scientists who share this point of view is constantly increasing.

In my opinion, the answer to the question whether an individual is a subject of international law depends on what characteristics this subject, in our opinion, should have.

If we consider that the subject of international law is a person who is subject to international legal norms, which these norms endow with subjective rights and obligations, then the individual is certainly a subject of international law. There are many international legal norms that can directly guide individuals (1966 Covenant on Civil and Political Rights, 1989 Convention on the Rights of the Child, 1949 Geneva Conventions for the Protection of Victims of War, Additional Protocols I and II to them 1977 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, etc.).

However, the concepts and categories of international law, as already noted, are not always identical to the concepts of domestic law. And if we believe that the subject of international law not only has the rights and obligations arising from international legal norms, but is also a collective entity, and, most importantly, takes a direct part in the creation of international law norms, then the individual is classified as a subject of international law it is forbidden.

State-like entities have a certain amount of international legal personality. They are endowed with an appropriate amount of rights and obligations and thus become subjects of international law. Such formations have territory, sovereignty, have their own citizenship, legislative assembly, government, international treaties.

These, in particular, were the free cities, and now the Vatican.

Free cities. A free city is a state-city that has internal self-government and some international legal personality. One of the first such cities was Veliky Novgorod. The Hanseatic cities were also among the free cities (the Hanseatic League included Lubeck, Hamburg, Bremen, Rostock, Danzig, Riga, Derpt, Revel, Amsterdam, Koenigsberg, Kiel, Stralsund and others - a total of 50 cities). In the XIX and XX centuries. the status of free cities was determined by international legal acts or resolutions of the League of Nations and the UN General Assembly and other organizations. For example, the status of Krakow was established in Art. 4 of the Russian-Austrian treaty, Art. 2 of the Russian-Prussian treaty, in the additional Austro-Russian-Prussian treaty of May 3, 1815; in Art. 6-10 of the Final Act of the Congress of Vienna, June 9, 1815; in the Free City Constitution of 1815/1833. Subsequently, by an agreement of November 6, 1846, concluded by Austria, Prussia and Russia, the status of Krakow was changed, and it became part of Austria.

The status of the Free City of Danzig (now Gdansk) was defined in Art. 100-108 of the Versailles Peace Treaty of June 28, 1919, in the Polish-Danzig Convention of November 9, 1920 and in a number of other agreements (for example, in the agreement of October 24, 1921 and in the decisions of the High Commissioner of the League of Nations, subsequently recognized Polish government).

The status of Trieste was provided for in sect. III part 2 of the Peace Treaty with Italy in 1947 and in annexes VI-X to it. In October 1954, Italy, Great Britain, the USA and Yugoslavia initialed the text of the Memorandum of Understanding, on the basis of which Italy received the possession of zone A (Trieste with its environs), with the exception of a small part of the territory assigned to zone B, which remained in Yugoslavia.

The status of Jerusalem was determined by General Assembly resolution No. 181/11 of November 23, 1947 (this resolution did not enter into force)2.

The scope of international legal personality of free cities was determined by international agreements and constitutions of such cities. The latter were not states or trust territories, but occupied, as it were, an intermediate position. Free cities did not have full self-government. However, they were subject only to international law. For residents of free cities, a special citizenship was created. Many cities had the right to conclude international treaties and join intergovernmental organizations. The guarantors of the status of free cities were either a group of states or international organizations (the League of Nations, the UN, etc.). An integral feature of a free city is its demilitarization and neutralization.

West Berlin had a special international legal status. After the end of World War II, as a result of the split of Germany, two sovereign states were formed: the Federal Republic of Germany and the German Democratic Republic, as well as a special political-territorial unit of West Berlin. The government of the USSR, in agreement with the government of the GDR, in 1958 proposed to give West Berlin, located on the territory of the GDR, the status of a demilitarized free city capable of carrying out international functions under the guarantee from four powers: Great Britain, the USSR, the USA and France

The international legal status of West Berlin was determined by the Quadripartite Agreement signed by the governments of Great Britain, the USSR, the USA and France on September 3, 1971. In accordance with this document, West Berlin had a unique international legal status. The state-political structure of West Berlin was determined by the Constitution, which entered into force on October 1, 1950. The international legal personality of West Berlin was of a limited nature. The city had its own diplomatic and consular corps, accredited to the respective authorities of the US, British and French governments. The USSR, with the consent of the governments of these countries, established the Consulate General. West Berlin had the right to participate in international negotiations, conclude agreements on communications, telegraph, regulate the travel of permanent residents to various areas of the GDR, etc. The FRG represented the western sectors of Berlin in international organizations and conferences. The special status of West Berlin was canceled in 1990. In accordance with the Treaty on the final settlement with respect to Germany of September 12, 1990, the united Germany includes the territories of the GDR, the FRG and all of Berlin. Vatican. In 1929, on the basis of the Lateran Treaty, signed by the papal representative Gaspari and the head of the Italian government, Mussolini, the "state" of the Vatican was artificially created (the treaty was revised in 1984). The creation of the Vatican was dictated by the desire of Italian fascism in its domestic and foreign policy to enlist the active support of the Catholic Church. The preamble to the Lateran Treaty defines the international legal status of the state "Vatican City" as follows: in order to ensure the absolute and explicit independence of the Holy See, which guarantees indisputable sovereignty in the international arena, the need to create a "state" of the Vatican was revealed, recognizing its full ownership in relation to the Holy See , exclusive and absolute power and sovereign jurisdiction. The main goal of the Vatican is to create conditions for independent government for the head of the Catholic Church. At the same time, the Vatican is an independent international personality. He maintains external relations with many states, establishes his permanent missions (embassies) in these states, headed by papal nuncios or internuncios (Article 14 of the Vienna Convention on Diplomatic Relations of 1961). Delegations of the Vatican participate in the work of international organizations and conferences. It is a member of a number of intergovernmental organizations (IAEA, ITU, UPU, etc.), has permanent observers at the UN, FAO, UNESCO and other organizations. According to the Basic Law (Constitution) of the Vatican, the right to represent the state belongs to the head of the Catholic Church - the pope. At the same time, it is necessary to distinguish between the agreements concluded by the pope as the head of the church on church affairs (concordats), from the secular agreements that he concludes on behalf of the state of the Vatican.

As subjects of international law

State-like formations

State-like entities have a certain amount of international legal personality. Οʜᴎ are endowed with an appropriate amount of rights and obligations and thus become subjects of international law. Such formations have territory, sovereignty, have their own citizenship, legislative assembly, government, international treaties.

Among them were the so-called. Free Cities, West Berlin. This category of entities includes the Vatican, the Order of Malta and Mount Athos. Since these formations are most like mini-states and have almost all the features of a state, they are called "state-like formations".

The legal capacity of free cities was determined by the relevant international treaties. So, according to the provisions of the Vienna Treaty of 1815 ᴦ. Krakow was declared a free city (1815 - 1846). According to the Versailles Peace Treaty of 1919 ᴦ. Danzig (Gdansk) (1920 - 1939) enjoyed the status of a "free state", and in accordance with the peace treaty with Italy in 1947 ᴦ. The creation of the Free Territory of Trieste was envisaged, which, however, was never created.

West Berlin (1971 - 1990) had a special status granted by the quadripartite agreement on West Berlin 1971 ᴦ. In accordance with this agreement, the western sectors of Berlin were united into a special political entity with their own authorities (the Senate, the prosecutor's office, the court, etc.), to which some of the powers were transferred, for example, the issuance of regulations. A number of powers were exercised by the allied authorities of the victorious powers. The interests of the population of West Berlin in international relations were represented and defended by consular officials of the FRG.

Vatican- a city-state located within the capital of Italy - Rome. Here is the residence of the head of the Catholic Church - the Pope. The legal status of the Vatican is determined by the Lateran Agreements signed between the Italian state and the Holy See on February 11, 1929, which are basically still in force today. In accordance with this document, the Vatican enjoys certain sovereign rights: it has its own territory, legislation, citizenship, etc. The Vatican takes an active part in international relations, establishes permanent missions in other states (there is also a representative office of the Vatican in Russia), headed by papal nuncios (ambassadors), takes part in international organizations, in conferences, signs international treaties, etc.

Order of Malta is a religious formation with an administrative center in Rome. The Order of Malta takes an active part in international relations, concludes agreements, exchanges representations with states, has observer missions in the UN, UNESCO and a number of other international organizations.

Holy Mount Athos (Athos) is an independent monastic state located on a peninsula in Eastern Greece, in the Chalkidiki region. It is in the possession of a special Orthodox monastic association. Management is carried out jointly by representatives of each of the 20 monasteries. The governing body of Athos is the Sacred Kinote, which includes representatives of all 20 monasteries of Athos. And the highest church authority on Athos does not belong to the Athenian patriarch, but to the Patriarch of Constantinople, as in the Byzantine era. Entry into the territory of a state-like entity is prohibited for women and even for female pets. For pilgrims to visit the Holy Mount Athos, it is extremely important to obtain a special permit - “diamonitirion”. In recent years, the European Council has repeatedly demanded that the Greek government open access to Athos to everyone, including women. Orthodox Church strongly opposes this in order to preserve the traditional monastic way of life.

UDK 342 BBK 67

LEGAL SYSTEMS IN STATE-LIKE FORMATIONS

Vitaly Vasilyevich Oksamytny,

Head of the Scientific Center for Comparative Law, Head of the Department of Theory and History of State and Law

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

Email: [email protected]

Scientific specialty 12.00.01 - history of teachings about law and the state

Citation-index in the NIION electronic library

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

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

LEGAL SYSTEMS IN STATE-LIKE FORMATIONS

Vitally V. Oksamytnyy,

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

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

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

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

Special sources point to the existence of modern map There are more than 250 different countries in the world1, of which about 200 are recognized as independent states. The latter have sovereign territorial and personal supremacy, are recognized by all the international community and as such are full Member States of the United Nations.

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

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

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

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

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

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

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

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

The difference in understanding and application of these concepts exists, in particular, in European languages. Yes, in English language- with the words "country", which is closer to the concept of "country", and "state" (state). At the same time, in a certain context, as in the Russian language, they can act as interchangeable.

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

Until now, there are remnants of the colonial system, which in the era of political correctness, it is customary to call dependent territories within the framework of statistics adopted by the UN. More than 40 territorial possessions, dependent or "self-governing" territories, are scattered across the expanses of the Earth. And most of them, having certain independent legal

powers, insist on granting them a special state status.

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

Among them, a special place is occupied by state-organized formations that claim to be completely independent, but are considered so-called unrecognized states, states in the making, quasi-states.

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

The reasons for their appearance can be both revolutionary upheavals, protracted inter-confessional and inter-ethnic conflicts, the national liberation struggle and the desire of individual parts of a complex state for independence and independence.

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

The rule of law is formed on the basis of the functioning of all the constituent parts of the mechanism of action of law (and it practically includes both “fixed” elements (for example, sources of law) and the processes of law-making, law-realization and law-interpretation). And therefore, the establishment of the legal order as the goal of the legal system involves considering the latter both in statics and in dynamics, which makes it possible to include in the content of the legal system the totality of its elements and the links between them.

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

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

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

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

Law-making as a cognitive and procedurally fixed way of preparing, formalizing and adopting generally binding rules of conduct in society;

Sources of law as official legal documents and / or provisions containing generally binding rules of conduct in a state-organized society;

A legal array that includes the legislation in force in a state-organized society as a system of officially established and interconnected normative acts general meaning;

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

The mechanism for exercising the right, in which the processes of its implementation are concentrated (legal relations, legal facts, law enforcement, solving gaps in the law, resolving legal conflicts, interpreting the law);

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

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

who have an official state status and in some cases recognized by some UN member states, are distinguished:

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

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

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

Unrecognized state formations that actually control their territory (in particular, the Pridnestrovian Moldavian Republic, the Nagorno-Karabakh Republic (Artsakh), Donetsk People's Republic, Soma Leland);

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

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

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

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

If the new law of the Republic of Moldova is guided by the traditions of the Romanesque legal family of continental (European) law, then the legislation of Transnistria since the moment of the proclaimed statehood followed the Russian model in general. The literature states, in particular, that “a feature of the legal regime of the territory of the PMR is a significant limitation (almost absence) of the influence of the legal system of Moldova and the effect on the territory of the Left Bank of Transnistria, in addition to the laws of the PMR, the laws of the USSR and the laws of the Russian Federation refracted through the acts of the bodies of the PMR (without any no matter the official initiative of Russia).

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

Such unrecognized states with their own law-making bodies and legislation can exist for decades. In particular, the current legal system of Taiwan, an island that its authorities officially call the "Republic of China," has been in force for nearly 70 years.

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

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

In mainland China, they believe that Taiwan should recognize the PRC and, according to the formula "peaceful unification and one state - two systems," become a special administrative region of China under the jurisdiction of a single government, having the right to a high degree of self-government while maintaining its social system. In 2005, the PRC Anti-Secession Law was passed. In Art. 2 of the document specifically emphasizes: “There is only one China in the world, located on the mainland and on the island of Taiwan. China's sovereignty and territorial integrity extend equally to its mainland and Taiwan."

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

While the People's Republic of China, based on the ideas of Mao Zedong and Deng Xiaoping, is building a "socialist rule of law state with Chinese characteristics", the Constitution of the Republic of China of 1947 (with subsequent amendments and additions) continues to operate in Taiwan. In accordance with it, the highest representative body is the National Assembly, which decides constitutional questions and elects the president and vice president. There are also separate Legislative and Judicial chambers that develop new laws and additions to the Constitution, and the Executive Chamber - the government. Many codes were developed under the strong influence of German, Swiss and Japanese law and were put into effect in the 20-30s of the last century. Subsequently, these laws were modified and consolidated into Lufa

quanshu - " complete book six laws”, which included legislative norms grouped into the following areas: constitutional, civil, civil procedure, criminal, criminal procedure and administrative law.

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

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

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

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

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

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

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

During the existence of the United Nations since 1945, about 100 territorial entities whose peoples had previously been under colonial or other external rule became sovereign states And

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

At the same time, despite the significant progress achieved in the process of decolonization, there are about 40 territories in the world under the external administration of a number of states. They are also referred to as territories with a transitional or temporary, "because it is in advance an inevitable termination of the existing status" legal regime.

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

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

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

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

In particular, to countries that independently carry out internal management, we will refer, for example, the Pacific island of Niue, officially referred to as "a self-governing state entity in free association with New Zealand", as well as an island in the Caribbean - Puerto Rico as an "unincorporated organized territory".

The former Spanish colony of Puerto Rico becomes a possession of the United States at the end of the 19th century. Subsequently, this island in the Caribbean Sea de facto lost the regime of a non-self-governing territory, having received from the mother country the status of "a state freely joined to the United States of America." This provision was enshrined in the Puerto Rico Constitution, adopted on July 25, 1952. In accordance with it, the supreme legislature belongs to the US Congress, which is in charge of matters foreign policy, defense, approval of laws, etc.

Regional power within the autonomy is exercised by a bicameral Legislative Assembly, elected by direct vote for a term of 4 years. The Puerto Rican Parliament is represented in the US House of Representatives by a Resident Commissioner with the right to initiate legislation, but not the right to vote. Executive power is exercised by the governor, elected since 1948 by Puerto Ricans also for 4 years. The Governor is Commander-in-Chief of the Armed Militia and chairs the Government Advisory Council, which includes 15 ministers he appoints.

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

and most of the other legal norms follow the Latin American models.

A specially created in the United States presidential commission on the status of Puerto Rico recommended that the inhabitants of the island be granted the right to self-determination. However, the referendum held in 2017, already the fifth in a row over the past half century, once again testified that, having three options to choose from (maintain the status quo, become independent state, ask the US Congress to join), the citizens of Puerto Rico do not seek full independence. Only 3 percent of Puerto Ricans who came to the polls supported the demand for independence. The vast majority of citizens voted to change the political status of the island by fully joining the United States as the 51st state5.

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

5th referendum in Puerto Rico. // URL: https://www.pravda.ru/world/northamerica/caribbeancountries.

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

Literature

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

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

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

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

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

6. The political system and law of the People's Republic of China in the process of reform. / Hand. ed. coll. L.M. Gudoshnikov. Moscow: Russian panorama, 2007.

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

Constitutional law of Russia

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

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

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

GPO is a special political-religious, historical or political-territorial unit, which, on the basis of international act or international recognition has a relatively independent international legal status. General terms (generalizing concepts) for designating the GPO are free cities or free territories, free territories or zones.

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

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

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

In 1947–1954 the Free Territory of Trieste, the subject of territorial disputes between Italy and Yugoslavia, had GPO status. It was created on the basis of the Peace Treaty with Italy in 1947. It was under the protection of the UN Security Council. In 1954, it was divided peacefully between Italy and Yugoslavia.

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

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

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

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

A Vatican passport is equivalent to a diplomatic one. To get it, you need to become a cardinal or legate of the Pope. Citizens of the Vatican either live and work permanently in the Vatican itself, or are abroad on a diplomatic mission for the Catholic Church. The privilege of being a citizen of the Vatican depends on a direct and permanent relationship with the papacy. When communication is interrupted, Vatican citizenship is lost. Only one person can break this connection until death: the Pope. He has a passport number one, he is the absolute ruler in the state of the Vatican and the sole authority of the Catholic Church.

The Holy See actively participates in international life, in the struggle for human rights. In 1965, it was adopted Nostra Aetate- Declaration of the Vatican on the refusal to accuse the Jews of responsibility for the crucifixion of Christ. In 2005, the visit of the head of Israel to the Vatican took place, in 2006 - the return visit of the Pope to Israel. At the VII conference on the revision of the Treaty on the Non-Proliferation of Nuclear Weapons (2005), the Permanent Representative of the Vatican to the UN noted that countries with nuclear weapons do not comply with their obligations on complete disarmament; clandestine production of nuclear weapons is growing, which risks falling into the hands of terrorists.

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

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

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

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