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Journal of International Law an International Relations
 

Belarusian Journal of International Law and International Relations 2002 — N 1

Summaries 


International Law

International Organizations

International Legal Personality of the Commonwealth of Independent States — Aueznur Kazhenov

The Peculiarities of the Inner Organizational Law-making Mechanism in the Commonwealth of Independent States — Igor Barkovsky

International Courts

Reservations to Unilateral Declarations Accepting the Jurisdiction of the International Court of Justice — Andrey Velichkovsky

Refugee Law

Evolution of the Non-refoulement Principle and Problems of its Consolidation in the Legislation of the Republic of Belarus — Vitaly Maslovsky

International Private Law

The Time Limit for Making the Award of International Arbitration Tribunal — Aliaksandr Danilevich

Comparative Law

Peculiarities of Pension Provision in the Federal Republic of Germany — Tatiana Postovalova

International Relations

On Belarusian-Russian Cooperation in International Organizations (the UN and OSCE) — Vladimir Snapkovsky

Current Russian Foreign Policy Dilemmas — Vadim Yelfimov

Belarus — France: Search for Avenues of Collaboration (Towards the 10th Anniversary of the Establishment of Diplomatic Relations) — Victor Shadursky

The International Political Activity of the League of Nations (Some Aspects of National and Foreign Historiography of the 1920—1990s) — Ludmila Drojja

UNHCR and Belarusian Non-governmental Organizations: Experience of Cooperation — Andrey Selivanov

The Initial Stage of the Cold War and the Shaping of the U.S. Concept of the World Leadership — Alexandr Plashchinsky

Documents and Materials

Refugee and Migration Issues: a Regional Approach (on International Seminar Materials) — Yury Morgun

International Economic Relations

Foreign Trade of Belarus in Mechanical Engineering Goods: State and Prospects — Vladimir Rudenkov

The New Economy as a Trend of the World Economy Development — Ludmila Klimovich

Foreign Direct Investments Role in the Economies of Industrially Developed Countries — Sergey Yakubovsky


English Summaries

"International Legal Personality of the Commonwealth of Independent States" (Aueznur Kazhenov)

The Commonwealth of Independent States (CIS) is a regional international intergovernmental organization established by sovereign independent states with the aim of coordinating their cooperation on a wide range of issues. The CIS Charter and other legal acts of the Commonwealth especially emphasize that the CIS is not a state or suprastate formation.

The international legal personality of the CIS is of a secondary and derivative nature. It is realized within the boundaries defined by the member-states in special constituent instruments. Nevertheless, in the beginning of the 21st century it is practically impossible to find an international intergovernmental organization of the CIS level, which would fail to have some features of the subject of the international public law. This fact brings us closer to the conclusion on admissibility of recognition of the objective nature of the international legal personality of the Commonwealth of Independent States.

The treaty capacity of the CIS coincides to a great extent with the legal capacity of other regional intergovernmental organizations. Its realization conforms to the requirements of the 1969 Vienna Convention on the international treaty law and the 1986 Vienna Convention on the law of treaties between states and international organizations or between international organizations. However, at present the CIS has signed only a few treaties in its name. It is to be expected that, as various forms of interstate cooperation within the CIS framework expand and develop, the number of such treaties will grow.


"The Peculiarities of the Inner Organizational Law-making Mechanism in the Commonwealth of Independent States" (Igor Barkovsky)

The article is devoted to the specific features of the inner organizational law-making mechanism of the Commonwealth of Independent States (the Commonwealth). The article reviews the peculiarities of the inner organizational law-making mechanism of the Commonwealth and gives a comprehensive analysis of the Procedure Regulations of the Council of the Heads of States and the Council of the Heads of Governments — the basic instrument regulating inner organizational law-making of the Commonwealth. It pays special attention to the issues of binding legal force of the decisions adopted by the supreme bodies of the Commonwealth. According to the author, the issue of legal binding force of the decisions of the supreme bodies of the Commonwealth is mainly caused by the absence of classification of the decisions of the Council of the Heads of States and the Council of the Heads of Governments into the acts determining the member-states policy on basic issues of the organization activity and the acts on inner organizational issues.

The article notes an important place taken in the Commonwealth internal law by the norms regulating the status of the organization staff. The author believes that the legal status of officials of the Commonwealth bodies can be fixed in a special normative legal act on the legal status of officials of the Commonwealth bodies. This instrument is to give the definition to the term “the officials of the Commonwealth bodies”, to the foundations of their legal status, and to the principles of the service in the Commonwealth bodies, etc.

The author makes the following conclusions on the basis of the analysis of the existing views on the definition of the inner law of the international organizations, normative legal acts adopted within the CIS framework and the treaty practice of its bodies:

— Normative legal acts adopted within the Commonwealth framework do not fix the general notion of the inner law of the organization. At the same time, some of the Commonwealth bodies have certain authority for realization of the inner organizational regulation revealing the process of the organization inner law formation.

— In general, the inner law of the Commonwealth can be defined as the aggregate of legal norms regulating inner organizational issues of the Commonwealth functioning and adopted by the organization bodies on the basis of normative legal instruments enacted within the Commonwealth framework.

— Proceeding from the regulation object, the inner law of the Commonwealth can include the following decisions of the Commonwealth bodies: those regarding procedure regulations of the supreme bodies of the Commonwealth, budget issues, the organization staff regulations, establishment (abolition) of the organization subsidiary agencies, appointment of heads of the Commonwealth bodies and improvement of the structure and activities of the Commonwealth bodies. Besides, it may also contain the norms resulting from treaty practice of the Commonwealth bodies and regulating inner organizational issues of their functioning.

The issues of the inner organizational law-making activity of the Commonwealth require further deep and comprehensive study since the activity of this regional international organization depends on the efficiency of the inner organizational regulation.


"Reservations to Unilateral Declarations Accepting the Jurisdiction of the International Court of Justice" (Andrey Velichkovsky)

The article examines the reservations to the acceptance of compulsory jurisdiction included in declarations made by States under Article 36(2) of the Statute of the International Court of Justice and discusses the practical application by the Court of the principle of reciprocity to such reservations in contentious cases.

It has been considered that, due to acceptance conditioned by so many, diverse, and complicated reservations, the compulsory jurisdiction of the Court has been declining in significance. The recent trend of acceptance of the compulsory jurisdiction does not support such a conclusion. As of the end of 2001, 64 declarations of acceptance were in effect (in 1991 ѕ 54 declarations).

Since the practice of making declarations with reservations has continued, further study of the Court’s jurisprudence in dealing with such reservations seems necessary. This article attempts to show that reservations in unilateral declarations do not necessarily contribute to the decline of the compulsory jurisdiction. In fact, reservations quite often provide for the flexibility which many States consider essential in accepting the jurisdiction of the Court. Thus, the right to include a variety of reservations in unilateral declarations may in fact contribute to the wider acceptance of compulsory jurisdiction.

On the basis of the analysis of the Court’s practice in considering reser­vations to declarations of acceptance of the compulsory jurisdiction and in applying the principle of reciprocity with respect to those reservations, the article evaluates the practical significance, usefulness and effectiveness of different types of reservations and draws some conclusions as to the necessity and desirability of including them in declarations of acceptance.


"Evolution of the Non-refoulement Principle and Problems of its Consolidation in the Legislation of the Republic of Belarus" (Vitaly Maslovsky)

The article analyses the evolution of the non-refoulement principle in international law in its development starting from refugee treaties under the auspices of  the League of Nations. Analysed international instruments include relevant provisions of the 1951 Convention Relating to the Status of Refugees (to which Belarus acceded in 2001) and other UN conventions and declarations, regional instruments, as well as Conclusions on International Protection adopted by the Executive Committee of the UNHCR Programme.

Analysis of the above documents and of the positions taken by key scholars of international refugee law (G. Goodwin-Gill, J. Hathaway and others) leads the author to the conclusion that the  non-refoulement principle is a norm of customary public international law. The scope of protection under this principle includes also the obligation of a state to provide asylum seekers with access to the territory of the country of refuge.

Several provisions of the present Law on Refugees of the Republic of Belarus are described as not compatible with the country’s obligations on the protection of refugees from refoulement. The norms concerned include extended formulation of exclusion clauses, procedure of registration of applications for refugee status which bars asylum seekers’ access to refugee status determination. Absence in the respective national regulations of clear prohibition of deportation or extradition of a genuine refugee also constitutes a gap in the implementation of the non-refoulement principle in Belarusian legislation.

The interpretation of Belarusian legislation allows the resolution of collisions between international and national norms on non-refoulement in favour of the former. Nevertheless, there is a need to bring the circle of persons and the scope of protection under this principle established by national legal acts in line with the 1951 Refugee Convention.


"The Time Limit for Making the Award of International Arbitration Tribunal" (Aliaksandr Danilevich)

A number of questions concerning fixing the time limit for making the award of international arbitration tribunal are considered in the article. The author particularly touches upon the matter of specifying such limit in legislation regulating arbitration procedure or its determination by agreement of the parties, and also considers possible ways of the extension of the time limit and the consequences of its expiration.

The problems under consideration have not found a regular solution in theory and are differently settled in legislations of different states which naturally provokes scientific and practical interest to them.

Apart from the legislation of Belarus the author presents the corresponding legislation of Italy, Russia, Ukraine, England etc. This allows him to compare legal regulation of the matters concerning the time limit for making the award in different countries, to reveal some regularity in their settlement and make certain conclusions.


"Peculiarities of Pension Provision in the Federal Republic of Germany" (Tatiana Postovalova)

Pension system in FRG was reformed several times (1957, 1992, 1996, 2001).

At present the state pension system includes two types of insurance: compulsory and voluntary. The state system of compulsory insurance envisages 10 types of  pensions. Voluntary pension insurance is used to fill in the deficiency of general length of service; to retain the right to disablement or incapacity pensions and to rehabilitation services in case of the deficiency of general length of service, pension increase, etc.

The lack of financial resources in the system of state pension insurance has led to introduction of the system of private pension insurance with the state support. The Law on the state support of private pension insurance was adopted in 2001. It envisages the state financial support towards the future additional pension of employees.

Limitations on the length of insurance acquired outside the EU borders have been introduced. The 1960 Law on pension guarantees for foreign citizens has undergone substantial alterations. The principle of pension rights equality of immigrants and native Germans has been substituted by the principle of provision at the living wage rate.

The law on pension insurance envisages a range of privileges for the families with children with the aim to improve the demographic situation.


"On Belarusian-Russian Cooperation in International Organizations (the UN and OSCE)" (Vladimir Snapkovsky)

The article reviews some unexplored topical issues of cooperation and relations of the Republic of Belarus and the Russian Federation in international organizations, mainly within the UN and OSCE. It analyses the traditions of diplomatic cooperation of Soviet republics, organizational mechanisms of the international cooperation of the CIS member-states and the Belarus-Russia Union State. The article cites some examples of coordinated actions of the two states in various UN bodies. The author focuses on joint and coordinated actions of Russian and Belarusian diplomacy in OSCE and indicates Russia’s support to the Belarusian government in its human rights policy criticised by OSCE and most of its member-states. He notes a special role of Russia in the establishment of the OSCE mission in Belarus. The author also gives a brief analysis of the coordinated actions of the governments of Russia and Belarus in other international organizations. The article concludes with a statement that Belarusian-Russian cooperation in the international arena, including international organizations, is realized on the basis of common interests of the ruling regimes of the given states.


"Current Russian Foreign Policy Dilemmas" (Vadim Yelfimov)

The article reflects the most important and urgent challenges, which Russia is facing, learning the new instruments of regulation, represented by the USA and NATO, under the conditions of globalization; searching her own place in the reconstructed system of international relations; getting through the decade of economic and political crisis to the unknown prospects of the 21st century. Today the stability in the relations between Russia and America is not the key factor of the international stability as a whole, but it is still crucial for Russia herself. In this context the issues of adapting Russian foreign policy to the "western" concept of help and partnership, on the one hand, and to the goals of economic recovery, recovery of lost influence in the world, on the other, — all these are becoming extremely relevant.

The work explores the current mechanism of international globalization in the light of Russian interests and gives the analysis of current Russian foreign policy in the global terms.


"Belarus — France: Search for Avenues of Collaboration (Towards the 10th Anniversary of the Establishment of Diplomatic Relations)" (Victor Shadursky)

The article explores Belarusian-French relations after the establishment of diplomatic relations in January 1992. It analyzes the main trends of political interaction and economic and cultural collaboration of the two countries.

Considerable attention is given to the consideration of the reasons for and consequences of the deterioration of the French-Belarusian relations after the 1996 Belarusian referendum on introducing alterations into the main law of the country.


"The International Political Activity of the League of Nations (Some Aspects of National and Foreign Historiography of the 1920—1990s)" (Ludmila Drojja)

The article provides a retrospective review of academic opinion of national and foreign researchers on various directions of international political activity of the League of Nations in the 1920—1930s, on controversial articles of the League of Nations Statute on the issues of disarmament and aggression acts prevention in the prewar period.

The author describes the historiographic aspects of the USSR foreign policy doctrine, the peaceful initiatives of the Soviet diplomacy declared during the League of Nations sessions in 1934—1939s.


"UNHCR and Belarusian Non-governmental Organizations: Experience of Cooperation" (Andrey Selivanov)

Ever since its establishment the UNHCR has been working  in close cooperation with NGOs. The Charter of the UNHCR provides directly for its rendering help to refugees with the support of the governmental bodies and NGOs. The author describes the collaboration of the UNHCR and NGOs in the Republic of Belarus, since 1993, when it started. The article carries examples of active and comprehensive collaboration aimed at addressing the refugee problems in Belarus.


"The Initial Stage of the Cold War and the Shaping of the U.S. Concept of the World Leadership" (Alexandr Plashchinsky)

Being not the most influential power at the beginning of the 20th century the United States has achieved the status of the only superpower by its end. In view of this the author analyses some aspects of the realization of the American strategy aimed at the world leadership.

The article deals with the issues of the foreign policy instruments used for the successful implementation of the above-mentioned strategy, particularly at its initial stage. The origins of the "Pax-Americana" as well as its pre-conditions are examined.

The author emphasizes the important role of the bipolar confrontation for the U.S. evolution. It is noted that after World War II the economic power of the United States became the major factor for the re-evaluation of its role on the world arena and created the necessary basis for foreign expansion. The challenge from communism and the need to answer it became the motivation for American globalism. In this regard the author scrutinizes the turn from "isolation" toward the active foreign engagement as well as its major reasons.

It is pointed out that the Soviet Union represented the main geopolitical obstacle for the American leadership. Therefore, the article touches upon the two methods which the U.S. diplomacy intended to use for "breaking down the Soviet system".

The author proves that the first post-war decade was crucial for the shaping of the "world predominance" strategy. In this context the significance of year 1947 is especially stressed upon.

The article also views the Marshall Plan and the North Atlantic Alliance as the major foreign policy tools for ensuring the implementation of the U.S. global strategy and its geopolitical interests.


"Refugee and Migration Issues: a Regional Approach (on International Seminar Materials)" (Yury Morgun)

The refugees and migration issues are of an interstate and international nature. It is generally recognized that they can be solved only by involving both national and international effort. An integral part of such effort is regional and transboundary cooperation of the states. The UNHCR organized a seminar for the personnel of central and regional migration and customs services of five neighbouring states — the Republic of Belarus, Lithuania, Moldova, Poland and Ukraine with the aim of encouragement of the solution of refugees and illegal migration issues in the East European region.

The article presents the modern situation of the refugee and illegal migration issues both in the region and in each of the neighbouring states based on the recent data cited in the reports of the speakers from the five countries, the International Organization for Migration and the Swedish migration service.

It analyses the state of national legislation on refugees and migrants in the neighbouring states and the specifics of its application, the established structures, institutions for work with migrants; the measures, methods and approaches of each country in their work with refugees and illegal migrants, the peculiarities of consideration of migrants’ cases and cases relating to persons seeking asylum. It reflects not only the state legislative measures of responding to the problem but also critical issues that personnel of executive migration service divisions and border guards face daily in their work. The article analyses most complex aspects of the refugees and migration issues that these countries have in common and which require concerted action of the countries of the region and international organizations in order to counteract negative trends in the sphere of illegal migration.


"Foreign Trade of Belarus in Mechanical Engineering Goods: State and Prospects" (Vladimir Rudenkov)

The economy of the Republic of Belarus during the independence period has not gone through serious restructuring, it has not overcome its transitive nature due to its limited own natural resources and constant dependence on raw materials, fuel and energy import. It has an unfavourable trade balance in foreign trade, especially with Russia, and is mainly oriented on export of finished goods while increasing its trade turnover. Within the period 1995—2001 the trade turnover with Russia grew by 1,78 and the unfavourable trade balance by 1,68.

The Belarusian industrial complex is based on production with medium and low technologies though in fact it manufactures complex material and energy consuming goods. At the external trade balance of 150 USd per capita the produce in machinery industry comprises not more than 25 % of it. In 2001 only 10 % of the export and 26,7 % of the import of the machinery produce was connected with up-to-date and high technologies. It shows that the increase in production and renovation of industrial and technical base is directly related to the import of high technology products from the West.

The appearance of revitalization and growth in Russia’s economy development which shares the same industrial foundations with Belarus, its orientation on domestic consumers creates new problems in promotion and sales of Belarusian goods on this market.

In this connection, the author’s guidelines for more active use of the intellectual potential of the republic, realization of ‘active’ industrial policy and introduction of new marketing strategies set prospects for preservation and consolidation of positions of Belarusian goods on Russia’s market and their competitiveness on other markets.


"The New Economy as a Trend of the World Economy Development" (Ludmila Klimovich)

The process of globalization of the world economy at the turn of the 20th century — the beginning of the 21st century is connected with the extensive introduction of new technologies into all spheres of human activity. It has shaped the concept of the New economy phenomenon, developed on the basis of the USA largest transnational companies that manufacture science consuming products. The use of electronic technologies in world economy has led to transformation of the market infrastructure and has formed a new phenomenon known as the Internet economy. Internet gives an opportunity to modernize the traditional economy, it changes the competition mechanism and the scale of the world space. TNCs use electronic business to expand their sales markets, to reform their corporate infrastructure and managerial methods. Young enterprises get access via internet to the world information resources which determines their global transnational strategy and competitiveness on the world market. Simultaneously the integration process of the Old and New economies is taking place.

The New economy can be considered from different aspects. Firstly, it is a community of hi-tech companies using internet as a main resource of their activity; secondly, it is web-technologies aimed at creation of new business models leading to shaping of a new market space based on internet, with rapidly developing segments of the world market: internet trade, internet exchange, internet banks.

A society that adapts global electronic technologies in its economy has better chances to advance to the leading place in the world economy. In this connection, countries with economy in transition and the Republic of Belarus in particular have new prospects.

Three formation models of the information technologies’ economy can be applied in the innovation development scenario in these countries. 1) national: manufacture and selling of the web-technologies mainly on the domestic market. 2) India type: offshore programming business. Taiwan, Singapore and Brazil are centres of this business. 3) Israeli-Scandinavian: export of finished information products and especially technologies. The analysis of these models allows to summarize the experience of the country’s integration into the hi-tech market and use those elements of every model that are mostly applicable for the current economic situation in Belarus.

Today we face the necessity of development of a balanced macroeconomic policy of incentives for the New economy technologies: setting up of technopolises and technoparks, support of an efficient education system, formation of the technical base for the Internet economy development, provision for attracting national and foreign investors in the hi-tech and science consuming products spheres.


"Foreign Direct Investments Role in the Economies of Industrially Developed Countries" (Sergey Yakubovsky)

The article deals with the study of the role of direct foreign investments in the economy of the well-developed countries. The national structure of inflow and outflow direct foreign investments is explored. The influence of direct foreign investments on the national gross domestic product, current accounts and balances of payments are analyzed. The investment attraction of the United States is compared with the European Union countries.

 
 
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