Some aspects of theoretic-legal and conflictological analysis of stable functioning of the unrecognized state
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SOME ASPECTS OF THEORETIC-LEGAL AND CONFLICTOLOGICAL ANALYSIS OF STABLE FUNCTIONING OF THE UNRECOGNIZED STATE
We believe that problems of sovereignty in modern political life of the world shall be of great significance. It is conditioned, in particular, by aspiration of certain social groups to the detached existence. This problem is especially specified in connection with the similar processes which are happening in Russia and at its borders.
«The requirement of sovereignty and independence for ethnically designated territory, directed against the state power of the country»  is more often subjected to analysis from the position of political science in which it is considered as the concrete political phenomenon as the way of struggle for self-determination of the nation or a territorial unit. It is necessary to take into consideration, that seccessional requirements can be expressed in the aspiration of any territory to change jurisdiction of one state for jurisdiction of another (for example, Karabakh).
At the same time, it is necessary to note, that the analysis of aspiration of the territory to independence shall assume not only research of parameters of such a process, but also search of the ways of sanction of opposition between the central authority of «the state» and the territory aspiring to self-determination. We think, in this case the theoretical-legal and conflictological analysis of the considered phenomenon is necessary.
In the modern political reality seccessional requirements are quite frequent, thus the justification of the unilateral actions directed against the central authority according to A. Bjukenen «is based on representation what purpose in general the state exist for, under what conditions it has the right to supervise the territory and the people» .
We think it is possible to allocate three variants of seccessional requirements. First, the situation with the contractual resolution of the conflict between the region aspiring self-determination and the central authority is «completed seccession». As a result, a new state appears. The example, is determination of Eritrea from Ethiopia. Second, regions aspiring to determination can for different reasons be not capable to obtain the international recognition. As a result — restoration in any way of the supremacy of the central authority is «suppression of aspiration to sovereignty». For a example, conflicts connected with aspiration to independence of the Chechen Republic of Ichkeria, Gagausia, the same as — Katanga and Biafra. And, third — «stable functioning of the unrecognized state». It is expressed, on the one hand, in inability of the central authority to restore the supremacy on the entire territory, and on the other hand — in non-recognition as the subject of the international law effectively supervising the territory and the population of the region aspiring to determination. For example, the Pridnestrovskaia Moldavskaia Respublika, Abkhazia, South Osetia, Kosovo.
It is necessary to note, that analysis of the two first variants results in predicted conclusions — it is possible to speak about the separate state or a part of the state. The third variant assumes search of various ways of sanctions of the conflict situations, connected with the scientific analysis of the specified phenomenon.
Thus, from the position of the theory of the state and law stable functioning of the unrecognized state should be considered, first of all, in interrelation with the attributes of the state. The key attributes, shall be such as the territory, the sovereignty, the population. Active seccessional requirements have essential influence on redistribution of the contents of these attributes between the central authority and regions aspiring to self-determination. Thus, the region to which jurisdiction of the central authority is not actually distributed is excluded from the structure of the state territory. And on the contrary, the region aspiring to independence has the attribute of the territorial unit. Otherwise, the statement for aspiration to the state isolation from the basic state will not make sense. The sovereignty as well as the territory has the indivisible legal nature. In this sense the region aspiring to self-determination frequently at a greater degree corresponds to concept «state», than to «mother country» as the supremacy over territory of the region aspiring to independence is excluded from the sovereignty of the later. The population of such region at a greater degree possesses political-legal connection with the region, rather than with the central authority of «mother country». Thus, the Pridnestrovskaia Moldavskaia Respublika realises the supremacy of the power on its entire territory provides political and legal connection with the people residing on its territory by means of citizenship. On the contrary, the Republic of Moldova has no opportunity really to realise the supremacy of the power on the territory of the Pridnestrovskaia Moldavskaia Respublika which formally is a part of Moldova, and has no political-legal connection through relations of citizenship with the overwhelming the majority of the population of unrecognized state unit. And it was confirmed at the referendum which took place on September 17, 2006 when the people of the Pridnestrovskaia Moldavskaia Respublika supported independence, rather than functioning in the structure of Moldova. The same processes take place in Abkhazia and South Osetia.
Functions of the region aspiring to self-determination coincide with the theoretic and legal list of functions of the state. We mean political, economic, law-enforcement, military and social functions. And forms of realization of these functions are traditional — law-making, law-execution and justice. Practically in all the regions there is the parliament, the government or the president, and the organs of the judicial power, including the Constitutional Court (for example, the Pridnestrovskaia Moldavskaia Respublika).
The political system of the territories aspiring to self-determination is formed on the basis of general-theoretical fundamentals — the state, political parties and movements, opposition, criminal community. And the central state is considered as foreign. And in all statutory and individual legal acts of region aspiring to independence such context is read.
The presence of the system of formally fixed rules of behaviour — law — is the basis of appeal to the world community concerning recognition as the state. More over, if in the legislation, the universal values are determined as priority. Thus, in the preamble of the Constitution of the Pridnestrovskaia Moldavskaia Respublika adherence to the universal values, aspiration to live in peace with all peoples according to the conventional principles and norms of the international law is proved.
Thus, characteristics of the region aspiring to independence in the framework of «the stable functioning of the unrecognized state» meets all other theoretical and legal parameters of the state and the law! But the conclusions from the report of the Bureau of lawyers of New York, concerning the situation in region of Moldova and Pridnestrovie contradict it. One of its authors, K. Borgen, has noted, that «the region of Pridnestrovie does not comprise enough convincing elements to assert about his right to self-determination or determination» . However, the given judgments allow to doubt of absence of «enough convincing elements».
Conflictologically the aspiration of the region to independence is expressed in the open opposition of the sides of the conflict (the central authority of «mother country» and the region aspiring to self-determination) on the question on belonging of the supremacy of the power on the territory of such region. And the participants of the conflict can frequently not recognize existence of each other or recognize with clauses that assumes negotiating or consultations with participation of intermediaries or through the later in general.
The object of the sessecional conflict is the supremacy of the power on the territory leaving or left from under jurisdiction of «mother country». Thus it is necessary to start with the requirement of indivisibility of the resource acting as the object of the conflict. In this case claims on the supremacy of the power of the region aspiring to self-determination are inherent both to the territory, and to the central authority. And recognition by any side of divisibility of the specified resource leads to attenuation or full termination of the conflict. The analysis of the modern political situation shows, that belonging of the power represents itself as the object of the conflict after real actions of the subjects directed to its legal assignment, force gain and political deduction.
One side of the considered conflict is the political structure supervising territory aspiring to the sovereignty, and the other side is the central authority. It is typical, that from positions of the conflictological the analysis (as against legal) it does not play any role whether the sides recognize existence of each other. Thus, the character of the interest of the sides is directly opposite and can be achieved extremely due to the opponent. In case it does not happen, the conflict attenuates and subsequently stops (Gagauzia, the Chechen Republic).
The third element of the conflict is environment. In the geopolitical sphere it is characterized by the concrete arrangement of the political forces stimulating development of the conflict or, on the contrary, supporting its termination, and besides by non-uniformity of distribution of ethnically or politically homogeneous population on the territory of the country. Thus, the aspiration to sovereignty in the Pridnestrovskaia Moldavskaia Respublika is supported by essence of the Russian policy directed to protection of the Russian-speaking population.
National and cultural environment of secessional conflicts is also formed by the number of the reasons: «the historical past of ethnoses, presence of historical, cultural, cult and other monuments of ethnos on the certain territory (cult values of the nationality tutsi on the territories occupied hutsi in Ruanda); illegibility or absence of demarcation of existing borders, making new demarcation between ethnoses (for example, the problem of North and South Korea); return to the historic native land of earlier deported ethnos (repatriation of the Kazakhs from Mongolia, Iran, Afghanistan, countries of CIS); independent change of borders (the problem in relations between Western Sahara and Morocco); violent inclusion of the territory of ethnos into the neighbour state (for example, attempt of joining Kuwait to Iraq); partition of the ethnos among different states (the problem of Taiwan)» .
Thus, it is clear enough, that the secessional conflict is the typical social and legal conflict which sanction is possible by means of using classical ways — reconciliation, intermediaries, negotiations. However, the peculiarity of such conflicts is complexity of their sanction. Thus, the power resolution of the conflict is extremely dangerous and can create a number of precedents, and non force decision is interfered with various political and legal factors. At the same time it is indisputable, that the sanction of secessional conflicts without taking into account their theoretical, legal and conflictological component is unreasonable, as such sanction does not assume account of all possible factors describing the condition of the conflict, including the recognition as a side of the conflict of the political authority on the territory aspiring to self-determination. And we believe it should become a basis for the peaceful sanction of the the secessional conflicts.
The church and the state have different origin and nature, separate and special spheres of means and influence, and are independent from each other. However, this independence is not absolute. The state working within the limits of the competence, does not express judgment about subjects of Belief Study or about forms of divine worship — about divine service, the same as the church does not judge forms of the state system and activity of the government from the point of view of their political expediency. However, there are the spheres which can be indifferent neither for the church, nor for the state. First of all, it is public morality and the legal status of the church. The church preaches truth from Christ and teaches people moral precepts from the God, therefore it is not imperious, and cannot change anything in the doctrine, stop, or not stop preaching of the truth, whatever doctrines would not be ordered or not spread by the state instances. In this respect the church is internally completely free from the state. As to the legal status which this or that local church possesses, it is the power of the government which possesses the legal sovereignty on territory of the state. And it means i that solely this power shall determine the legal status of local church, giving it the opportunity of execution of its mission or limiting these opportunities. Thus, the state realizes its right, and the church has no right to refuse the state even discriminating it, in obedience as the church should in any conditions and under any circumstances commit such activity as salvation of people.
Mutual relations of the church and the state have developed in the context of history during which the state has developed and changed. In the 20th century the Russian orthodox church has passed a thorny road of ordeals, which started in 1917, and the state has passed the difficult way of formation of the attitude to religion and feelings of believers. During the monarchy the state made the indication of a religious belonging of the citizens as the legal compulsion, leaving a person freedom of choice of the religion, but not supposing the opportunity to refuse from confession of religion in general to choose and more over to preach atheistic belief. There have been entered the category of the state religion and organs of the government, supervising religious affairs and in documents of the citizens it was necessary to specify the religious creed. The declaration of the socialist state was followed by adoption of acts about separation the church from the state and of separation of school from church. It was forbidden to pass any local laws and resolutions which would constrain or limited the freedom of worship or would establish any advantages or privileges by the religious belonging of the citizens. The church was separated from the state, that is lost the status of the state church, with abolition of the government and it was not required to specify the religious belonging in the official documents of the citizens.
In the first legislation of the Soviet state, on the one hand, they had to take into account the necessity to reckon with the fact that the overwhelming part of the population was religious, on the other hand, there has begun the hostile relation of the new ideology to religion. At first sight, the tolerance to confession of religion was shown, but at the same time religion was considered as the private affair of the citizen, and that all possible public ways of familiarizing with it were forbidden.
Considering the orthodox clergy as one of the most reactionary forces of the Tsarist Russia, the organizers and inspirers of the white movement as the enemies, the bolsheviks from 1920 till 1931 — closed, ruined and blew up 80 church buildings and premises in Pridnestrovie. In Tiraspol, for example, seven orthodox churches were closed, and their buildings were blown up. The attitude of the bolshevik leaders of the country to the orthodox church in many respects changed during the Great Patriotic War when the Orthodox Church stood up as the patriots of the Fatherland, and the patriarchate was restored, and opening of the new and restoration of the churches began. However, this could not happen in Pridnestrovie as it was occupied by the fascists. Those orthodox churches opened by the Romanian invaders, were renamed in honour of the sacred, mostly esteemed in Romania. To tell the truth, restoration of the churches in Pridnestrovie being a part of Odessa region of the Ukraine, was carried out for Romanization of the territory. The Romanian patriarchy without coordination with the Moscow patriarch impudently and forcibly spread its jurisdiction on the occupied territory .
After the Great Patriotic War a number of orthodox churches working in wartime were not closed in connection with the improvement of relations of the authorities to the needs of the orthodox church. But, in 1955−1956, the situation changed. All the churches were closed. On the territory of the Pridnestrovie continued services two churches — the Church in the village of Voronkovo Rybnitsa district and the Church in the village of Podoima Kamenka District. The Russian orthodox church of the Pridnestrovie in the period of Khrushchev — ruling of the country, has undergone the worst sufferings even in comparison with the times of Stalin. The disintegration of the Soviet Union, formation of the Pridnestrovskaia Moldavskaia Respublika and the huge spiritual pulse connected with it, gave rise to patriotism and returning to historical and cultural beginnings which have greatly changed the status of the Russian orthodox church in this region, in the Pridnestrovskaia Moldavskaia Respublika .
At the moment of formation of vikarship in Pridnestrovie 27 churches worked in which 35 clergymen served. By the end of the year of 2000 the Tiraspol and Dubossar diocese comprised 68 perishes. At the beginning of 1990s active church construction began in Pridnestrovie. Radical changes in the attitude to religion took place. Activities of the religious organizations are regulated first of all by the Constitution of the Pridnestrovskaia Moldavskaia Respublika. The first Constitution was adopted on September 2, 1991 and was similar to the Soviet Constitution, but it regulated relations between the state and church in the new way. For example, in Article 49 of the Constitution of the PM SSR read, that the citizens of the PM SSR are guaranteed with the freedom of worship, that is the right to profess any religion or not to profess any religion, and each person shall have the right to distribute religious and atheistic views, to be engaged in religious or atheistic education of children, and carry out religious services. It is obvious, that we speak not only about the right of the citizens to conduct antireligious propagation, characteristic for the Soviet period of time, but the citizens are given the right to be engaged in religious propagation. The first half of 1990s is the time of democratization of social order, change of political and social essence of the state, and radical changes in the attitudes of the state to the religion.
The second Constitution of the Pridnestrovskaia Moldavskaia Respublika adopted at the all national referendum on December 24, 1995 proclaims the Pridnestrovskaia Moldavskaia Respublika the sovereign, independent, democratic, lawful state. First, Section I of the Constitution stipulates the secular character of the Pridnestrovie as one of the fundamentals of the constitutional system. Thus, according to Article 9 of the Constitution, the Pridnestrovskaia Moldavskaia Respublika shall be the secular state and no religion can be established state or obligatory, and all religious associations shall be separated from the state and shall be equal under the law . Second, Article 30 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates rights and freedoms of a person in connection with religion and guarantees freedom of worship. Each person shall have the right to profess any religion or to not profess any religion, and compulsory spreading of religion shall be inadmissible . We specify that the corresponding rights and freedoms are guaranteed by the Constitution to each person both to the citizens of the Pridnestrovskaia Moldavskaia Respublika, and to the foreigners, persons without citizenship, residing on the territory of the republic. Third, the Constitution forbids application of the religious factor for complication of relations among people. Part Three Article 8 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika forbids activity of public formations, their organs and representatives, directed against the sovereignty of the Republic, to the violent change of the fundamentals to the constitutional system, to undermining safety of the state, to creation of illegal armed units, to kindling racial, national and religious break . And Part One Article 27 of the Constitution guarantees each person freedom of thought and freedom of speech . We have mentioned only the articles directly reading about religion, however, religious rights and freedoms are provided by other legal acts stated in the Constitution.
It is necessary to note, that the Law of the Pridnestrovskaia Moldavskaia Respublika «About freedom of worship and religious organizations»  was adopted in 1995, it concretizes the constitutional regulations about the right to freedom of worship and equality of the citizens, irrespective of their attitude to the religion, and specifies some aspects of mutual relations between the state and the church in view of democratic processes happening in the society.
As a matter of fact, the idea of the lawful state adopted in Russia in 1990s, is its next mobilization idea. At various time for decision of the system problems of the Russian state there have been put forward different ideas, for example, about the necessity of development of the Russian empire, realization of the socialist revolution, about finishing of construction of the people’s state, etc. The lawful state as the idea as against others of the similar concepts is universe directed to maintenance of Russia’s joining the number of the countries realizing human rights. Its task is to transform the Russian state into the political organization in which division of the powers is realized and the independent judicial power functions.
Certainly, each state builds the lawful state according to the own conditions. At the same time the process has common features. The author of reviewed work, specifing experience of other countries in development of legal statehood, points out the role of the constitutional legality in this process. Actually it justifies that the first chapter of the monography is devoted to the questions of development of the constitutional control in different political systems, including in the USA, Austria, Germany, France, Japan, etc.
Basing on the works of M.A. Mityukov and other researchers, the author shows steps of development of the importance of the constitutional regulation in the Russian empire, in the Soviet Union and in the Soviet republics. Simultaneously he traces the development of idea of the lawful state. He has collected the material showing gradual application in the practice of domestic state-legal development of some beginnings of the constitutional justice.
Gavryusov Yu.V. considers that the real break in the regulation of questions of the lawful state and constitutional justice is the Constitution of the Russian Federation, the Federal Constitutional Law «About judicial system of the Russian Federation», constitutions of the republics of the Russian Federation, charters of the subjects of the Russian Federation, the Federal Constitutional Law «About the Constitutional Court of the Russian Federation», laws of the subjects on organization and activity of organs of the constitutional control in the subjects of the Federation.
The Constitution of the Russian Federation and constituent documents of the subjects of the Federation, in unity, fix legal statehood as the system idea of development of the home political system. According to the features of time by generalization of experience of a number of other countries in them the legal statehood is affirmed as the national idea, called to transform traditional relations developed both in the Russian Federation and its subjects, and in the state, society and mutual relations between the subjects of the law.
As against other constitutions the Fundamental Law of the Russian Federation establishes methodological, theoretic-political, state-legal, moral-ideological, social and economic, organizational-technical preconditions of development of the legal statehood. Comprehensively is proved the necessity of purposeful and effective protection of the Constitution of the Russian Federation, constitutions (charters) of its subjects. The special importance of protection of the constituent documents in conditions of Russia is connected with the following, on the one hand, they are ideal achievement of time and not all with reflect of achieved relations, and on the other hand, realization of their positions will face with the Russian mentality in which neither the law, nor justice do not play the big role.
In the monography of President of the Constitutional Court of Republic of Komi, Candidate of Jurisprudence Gavryusov Yu.V. are compared models of the constitutional justice. According to the author, for the subjects of Russia as the federative state the most suitable is the model which assumes creation of the constitutional (charter) courts. Having allocated the most important attributes of the constitutional (charter) courts of the subjects of the Russian Federation, the researcher perfectly specifies that the constitutional (charter) courts of the subjects initially and integrally are capable to realize the judicial power of the subject. The organs providing their balance can act in the system of division of their powers. The constitutional (charter) courts are in the system of checks and balances. Fruitful are the instructions of the author that the constitutional (charter) courts of the subjects of the Federation personify the development of their statehood and constitutionally-legal status. The value of activity of the organs of the constitutional justice in development of the fundamentals of regional legislation in realization of law-educating activity is allocated. Scrupulous study of the questions of legislative regulation of organization and activity of the constitutional (charter) courts reveals many interesting specific features. Critically estimating approaches of the subjects in deciding of the concrete sides of the constitutional justice, the author is not declined to justify everything. The rejected decisions of the subjects are well argued and on each case there has been offered the approach corresponding to the nature of the regional constitutional justice.
Revealing of the nature of the organs of the constitutional justice of the subjects of the Russian Federation makes one of the most important tasks of the work. The task is carried out on the basis of full and careful analysis of the practice of all working constitutional (charter) courts in the Russian Federation. And for this purpose there have been involved their decisions for the period at least, last ten years.
The framework of the review does not allow to specify in detail all the advantages of the monography. It would be necessary to allocate especially the three points which, in my opinion, represent important, specific, scientific-practical value.
Objective of the constitutional (charter) courts of the subjects of the Russian Federation is carried out in comparison with organization and activity of the constitutional courts of the districts of Germany. For this purpose there have been involved concerning this practice which exists in the given sphere in other federative states. In this sense the constitutional justice of the subjects of the Federation is proved as the part of the federal structure, as its essential attribute that enables to consider it as the institute of judicial power of the federative state.
In different works for the last years there have been actively studied the question about regional constitutional legal proceedings. However it still remains fragmentary. In the monography the constitutional legal proceedings are submitted as the complete constitutionally-legal formation having its essence, independent principles, functions, directions of development, rules of petition, subjects of application, procedure, stages, means of proving. The regional constitutional litigation is differentiated with the federal constitutional litigation realized by the Constitutional Court of the Russian Federation.
The principles of the constitutional legal proceedings — independence, collective nature, morality, competitiveness — are separated from the similar principles of civil and administrative legal proceedings.
Efforts of the author on identification of the regional constitutional legal proceedings with constitutionally-legal status of the subject of Federation are connected with the consideration of the order of decision-making by the constitutional (charter) courts, actualization of feasibility of their acts, and also with researche of the grounds and procedures of revision of legal positions of the constitutional (charter) courts.
The fact is, that the most debatable is the question, on the nature of decisions of the constitutional (charter) courts, their validity. Some authors recognize them the sources of law, others qualify them as lawful acts. In works of other authors it is proved, that there are elements both of lawful and normative acts. Proceeding from the common theory of law, Gavryusov Yu.V. believes, that decisions of the constitutional (charter) courts on interpretation of norms of constituent documents of the subjects should be considered as the indirect source of the law, derivative from the constitution or the charter (page 224), and concerning the resolution about admission of the statutory act not corresponding to the constitution (charter) «it is an independent source of the law» (page 227).
There has been made an attempt to understand the sense of the definition «legal position» of the constitutional (charter) court. There has been proved the point of view according to which legal positions can contain in definitions, and in resolutions of court, and in their motivated parts. The opinion on equality of validity of legal positions and resolutions of the constitutional (charter) courts is rejected. The estimation of the nature of legal positions of the constitutional (charter) courts differs depending on where they are expressed. In decisions they are «the independent source of the law» (page 234), and in definitions they are «the legal doctrine or the doctrine interpretation proceeding from lawyers theoretical explanation of legal norms» (page 236).
By present 56 subjects of the Federation have expressed the intention to have the organs of the constitutional justice. But only 15 subjects have already created such organs. In this connection the author studies, on the one hand, the condition of the legislation in the later, on the other, federal legislation, stating thus, quite proved critical remarks. Yu.V. Gavryusov touches the question on the reasons of backlog of the subjects in formation of the constitutional (charter) courts. He assorts that the circumstances specified in the works (V.A. Kryazhkov, M.A. Mityukov, A.M. Tsaliev), but as against other authors he connects the existing regulation with insufficient stability of the principle of division of powers in the subjects of the Russian Federation, and distribution at them some practice of «administrative perusal» ideas of the lawful state according to which the process of its development is presented in the context of interests of the working administration and its head.
The monography of Yu.V. Gavryusov is appreciable event in the substantiation of regional constitutional justice and brings the essential contribution to study of practice of the working constitutional (charter) courts of the subjects of the Russian Federation.
law church state conflict
1. История Приднестровской Молдавской Республики в 2-х томах. — Тирасполь, РИО ПГУ, 2001. — Т. 2 (вторая часть). — С. 426.
2. Приднестровье. — № 161. — 2005. — 22 августа.ПоказатьСвернуть