Journal of International Law an International Relations

 

Journal of International Law and International Relations 2009 — N 1

Summaries 


International Law

International Humanitarian Law

Underwater Archaeological Heritage Protection: International Legal and National Aspects — Igor Martynenko

Theoretical Issues

Preventive and Preemptive Self-defense: Differences. Legitimacy of Use — Yuliya Sinitsyna

International Private Law

Corellation of the Copcept "Unfair Competition" and the Grounds for Application of Anti-dumping, Countervailing and Safeguard Measures under the Legislation of the Republic of Belarus — Natalia Tykotskaya

Conflict Law Regulation of Contractual Relations in Surrogate Motherhood Sphere — Natalia Bayborosha

Documents and Materials

UNHCR Executive Committee General Conclusion on International Protection (N 107 (LIX) — 2008) (only russian)

International Relations 

The Concept of Integration in International Relations: Theoretical Aspect — Alexandr Chelyadinsky

Establishing Regional System of Administration in the Belarusian-Ukrainian-Russian Border Area (1917—1939) — Mikhail Starovoitov

The People's Commissariat for Foreign Trade Selling Abroad Historic and Cultural Artefacts of Belarus (the 1920s—1930s) — Nikolay Klepikov

Evolution of the European Union Policy Towards the Countries of the Southern Mediterranean in the 2000s — Alesya Sadovskaya

The Relations between the Republic of Belarus and the Bolivarian Republic of Venezuela (1997—2007) — Konstantin Andrievsky

Inernational Experience

The Experience of Sweden and Finland in Refugee Integration — Sergey Matus, Tatiana Tumashik (only russian)

Documents and Materials

The Results of the Project EU—UNHCR «Strengthening the Protection Capacity in the Republic of Belarus» (only russian)

Role of the Belarusian Mass Media in Formation of Tolerance in Society — Andrey Selivanov (only russian)

International Economic Relations

The Influence of Social Capital on the Configuration of the Market System of the Republic of Belarus in the Context of National Security — Sergey Solodovnikov, Olga Zhukovskaya

Analysis of System of Trade Finance in Transition Economies — Vasily Uglov

Synergetic Principles of the Organizational Economic Mechanism Formation to Pursue the Policies during Climate Changes — Vladimir Shevchyonok

Documents and Materials

On Some Issues of Foreign Trade Operations of the Economic Subjects of Belarus in View of the Changes in Belarus Hard Currency Regulation — Sergey Kobrinsky (only russian)


FULL ISSUE 


English Summaries


«Underwater Archaeological Heritage Protection: International Legal and National Aspects» (Igor Martynenko)

The article considers the principles of international legal protection of underwater cultural heritage. With the UNESCO Convention on the Protection of the Underwater Cultural Heritage coming into force in 2009, the problem of legal regulating of search and investigation of the sunken objects of cultural heritage has become relevant for the Republic of Belarus. In view of this the author states the necessity for Belarus to accede to this international legal act, noting the existence of the said objects in the country. These include not only sunken ships and planes but also typical Belarusian settlement sites which were later flooded, the relics of pagan times and cult stones, the traces of battles, arms, graves, havens and piers, the remnants of bridges, old roads and bridges which happen to be underwater now.

The article studies the attempts of legal regulation of underwater archeological investigation which led in 2007 to the adoption of the said Convention. The author formulates the most complicated civil law problems of determining property rights for the artefacts, found underwater, citing the precedents in international legal cases.
The article sets forth the principles fixed by the international community regulating the activities concerning underwater cultural archaeological heritage.

While analyzing the international legal acts regulating this sphere the author proves the grounds for the necessity to develop a special Act of the Republic of Belarus «On Protection of Archaeological Heritage» to include the underwater heritage objects into the Register of Historical and Cultural Heritage of the Republic of Belarus which would create additional legal guarantees for the protection of historic heritage of Belarus as a part of the world cultural heritage.


«Preventive and Preemptive Self-defense: Differences. Legitimacy of Use» (Yuliya Sinitsyna)

The present article considers the legality of pre-emptive and preventive use of armed force. On the basis of various aspects an analysis is carried out, which enabled to reveal the contents of terms to identify the main problems in the understanding of preventive and pre-emptive self-defense and to make practical recommendations.

Linguistic aspect. In the prevailing international practice, the above-mentioned terms meanings are different: pre-emption is interpreted as the elimination of direct or close threat and prevention is seems as the elimination of the threat, which has just formed.

Historical aspect. Prior to the adoption of the UN Charter all states had the right to war. However, the XX century began to form norms of international law, at first, to limit the right of war, but then to prohibit war. The process of renunciation of war was completed by the UN Charter adoption, which prohibits the use or threat of force.
Doctrinal point. There are three main approaches to the grounds and the interpretation of self-defense: 1) the narrow interpretation of self-defense. The basis for self-defense is an armed attack; 2) the expanded interpretation of the right to self-defense. The basis for self-defense is recognized to be an imminent threat of armed attack; 3) the basis for self-defense is also a remote threat — the concept of preventive self-defense.

Legal aspect. On the basis of analysis of the UN Charter and other documents, the conclusion was made on the possibility of the use of force by a State only in response to an armed attack, while the pre-emptive and preventive measures are within the exclusive competence of the UN Security Council.

Military-political aspects. This part analyses «The National Security Strategy of the United States» for 2002 and 2006.

Thus, one of the ways of resolving problems in interpretation of the grounds for self-defense is to fill gaps and to correct inaccuracies of formulations.


«Corellation of the Copcept "Unfair Competition" and the Grounds for Application of Anti-dumping, Countervailing and Safeguard Measures under the Legislation of the Republic of Belarus» (Natalia Tykotskaya)

The article provides the comparative analysis of the concept «unfair competition» with certain acts of foreign producers and exporters which may lead to application of the measures protecting the economic interests in the foreign trade in goods (anti-dumping, countervailing and safeguard measures) by the Republic of Belarus.

For this purpose the provisions of the Civil Code of the Republic of Belarus as well as of the Law of the Republic of Belarus «On Counteraction to Monopoly Activity and on Development of Competition» and the Law of the Republic of Belarus «On the Measures the Protect the Economic Interests in Foreign Trade in Goods» have been thoroughly considered. In particular it has been emphasized that in the case when some actions have not been legally defined as the forms of unfair competition it is necessary to proceed from the analysis of the «unfair competition» concept. In this connection special attention has been paid to the above-mentioned concept and its constitutive elements have been specified and characterized.

The content of the grounds for the application of the measures protecting the economic interests in foreign trade in goods has been compared with the attributes of unfair competition. It has been concluded that anti-dumping, subsidized or increased import may be considered as acts of unfair competition only if the simultaneous presence of all its components in these actions is ascertained.


«Conflict Law Regulation of Contractual Relations in Surrogate Motherhood Sphere» (Natalia Bayborosha)

The surrogate motherhood being a novelty in Belarusian legislation and a relatively young institute of some foreign states demands detailed legal regulation. Foreign element participation in surrogate motherhood program causes the objective necessity of such relations regulation in international private law.

Neither on international (universal and regional) nor on the national level there is conflict law to regulate surrogate motherhood. However, legal practice proves the necessity of working out and putting in force the conflict norms in the surrogate motherhood sphere (case X and Y (Foreign Surrogacy)).

It is obviously necessary 1) to propose the clause «Law applicable to the contract of surrogate motherhood» as the amendment to the Belarusian Family Code. To empower both the surrogate mother and the genetic parents to choose alternatively the following applicable law (a) law of the country of habitual residence of the surrogate mother, (b) law of the country of habitual residence of the genetic parents, (c) law of the country of the child birthplace. If the law applicable to the contract of surrogate motherhood with foreign element cannot be chosen, it is advisable to apply the law of the country of habitual residence of the surrogate mother; 2) to work out two Conventions on the CIS level: firstly, the Convention on law applicable to legal relations on family affairs (including surrogate motherhood conflict law regulation); secondly, the Convention on legal regulation of genetic medical technologies (including surrogate motherhood material regulation).


«The Concept of Integration in International Relations: Theoretical Aspect» (Alexandr Chelyadinsky)

The article explores a theoretical approach to the concept of «integration» extending its general definition to modern international relations. The development of international issues is a natural result of the production growth which required more reliable contacts, links and relations among the subjects and elimination of numerous obstacles to cooperation. However, this process is only possible within the framework of supranational integrational groupings on the basis of political agreements and not merely on mutually beneficial economic, military and cultural cooperation as many would think. The author identifies eight elements in integration, cites historical facts from the record of various groupings, including the EU, and concludes by saying that integration is a lengthy and complicated process which can take both positive and negative turns. These are determined by the fragmentation of the contemporary world, coincidence of interests or by conflicts of the subjects of international relations.


«Establishing Regional System of Administration in the Belarusian-Ukrainian-Russian Border Area (1917—1939)» (Mikhail Starovoitov)

The article considers the main stages in establishing an extremely important administrative, social and economic division of the non-autonomous region (oblast) in the 1920-s—1930s. The new system was the result of the radical break-up of the pre-revolutionary administrative divisions to provide for the administrative-territorial reform on the basis of economic regions outline. The analysis of the archive data and published Soviet and Communist party records allows the author to show that the settlement of the territorial and administration issues in the Belarusian-Ukrainian-Russian Border Area (including merging of territorial units twice in the 1920-s only) caused discussions but not conflicts. In the 1930-s the region as an administrative unit became the Party stronghold.

An important role in the decision was played by J. Stalin who promoted and supported this administrative unit, even including it into the corresponding articles of the 1936 Convention both for political reasons and for the purpose of stabilization of territorial division. The author comes to a conclusion that the region (oblast) came to be the main administrative, economic and political unit not only in the system of administrative territorial division but in the whole administrative command system of the country including that of the Belarusian-Ukrainian-Russian Border Area.


«The People's Commissariat for Foreign Trade Selling Abroad Historic and Cultural Artefacts of Belarus (the 1920s—1930s)» (Nikolay Klepikov)

The article deals with the issue of safeguarding of national cultural heritage of Belarus in the 1920s—1930s when an unprecedented broad action to withdraw cultural property objects from museum stocks so as to sell them abroad later took place. It was caused by the Soviet government finding itself on the brink of financial catastrophe at that time and seeking for new resources to fill the treasury with hard currency. Starting with 1922 a whole system was created to withdraw old culture artefacts from churches, monasteries and state museums. The 1918 decree «On Nationalisation of Foreign Trade» fixed the state monopoly to trade with other countries. The issues of foreign trade in Belarus were within the jurisdiction of the Department of the Commissioner of Narkomvneshtorg (People's Commissariat of Foreign Trade) of the RSFSR at the Council of People's Commissars (Sovnarkom) of the BSSR. In 1922 a State Export-Import Trade Office was set up to deal with all foreign trade operations. It was this office which was to trade for many years in Belarusian cultural artefacts on foreign markets.

All that was done in breach of the legislation in force at that time. Back in 1918 the Sovnarkom adopted a decree «On Banning the Export of Old Culture Property». According to that decree the Foreign Trade Office (Narkomat) had no right to export cultural and historic artefacts without the consent of the Office (Narkomat) of Education.

But starting with 1922 in breach of all legal norms the Narkomvneshtorg was busy withdrawing and later selling national heritage at the auctions abroad.
The study of extensive historical data allowed to analyse the activities of the state agencies which took part in robbing museum exposition to fill the gold and foreign currency.


«Evolution of the European Union Policy Towards the Countries of the Southern Mediterranean in the 2000s» (Alesya Sadovskaya)

The article is devoted to the analysis of the relations between the European Union and the Southern Mediterranean states in the 2000s, revealing new approaches to the policy of cooperation with the countries of the region within the EU. The author investigates the peculiarities of each period of EU policy towards this group of countries, consistently reveals main principles and problems of EU cooperation with the countries of the Southern Mediterranean within the frameworks of the Barcelona Process, European Neighborhood policy and the Union for the Mediterranean. The legal and contractual basis which defines the EU policy towards the above-mentioned countries is analyzed in the article.


«The Relations between the Republic of Belarus and the Bolivarian Republic of Venezuela (1997—2007)» (Konstantin Andrievsky)

The diplomatic relations between the Republic of Belarus and the Bolivarian Republic of Venezuela were established in 1997. The first stage of the bilateral dialogue lacked intensity which was connected with underestimation of the Latin American partner as an influence in regional policy. Stepping up of bilateral cooperation began after Hugo Chavez visited Belarus in 2006, which gave an impetus to the development of the relations in the political and economic sphere. The bilateral relations culminated in the President Alexandr Lukashenko's visit to Venezuela in Desember 2007 when a number of important treaties were signed to lay basis for further expansion of mutually beneficial cooperation.

«The Influence of Social Capital on the Configuration of the Market System of the Republic of Belarus in the Context of National Security» (Sergey Solodovnikov, Olga Zhukovskaya)

This article considers the mechanism of optimization of social-economic exchange (transactional costs decrease) under the influence of social capital in the context of economic security of the Republic of Belarus and in connection with global and national civilizational tendencies, economic, social-economic and social phenomena of the market segment of social life.


«Analysis of System of Trade Finance in Transition Economies» (Vasily Uglov)

This article examines one of the key issues of foreign trade policy of transition economies — the problem of setting up competent multivariate approaches to international trade finance evaluation for further determination of its strategy of improvement. Such analysis calls for identification of favourable and binding factors and indicators and their ranging.

The analysis carried out by the author using the elaborated model showed that the biggest results in developing the system of trade finance were achieved by the transition economies that managed to improve noticeably the state of their financial sector (Czech Republic, Hungary, China, Slovakia, Slovenia) backed by stable macroeconomic environment. The highest rate of trade finance system improvement was in the CIS countries and CEE countries and the lowest — in Asian transition economies. The latter as well as the south European countries were also characterized by a considerable dispersion in values of the aggregate index of trade finance system development. The growth of the aggregate index of trade finance system development leads to the growth of national export financing.

The positive trend of the aggregate index of trade finance system development in the Republic of Belarus shows the emergence of prerequisites for the full use of not only import finance by means of short-term post financing or attracted mid- and long term tied financing but also for development of the necessary financial instruments for export promotion.


«Synergetic Principles of the Organizational Economic Mechanism Formation to Pursue the Policies during Climate Changes» (Vladimir Shevchyonok)

Radical changes in the environment require adequate and flexible response of the part of the management of social economic systems which belong to the category of non-balanced open systems. Over the recent decades economic transformations set off a broad discussion of the anthropogenic factors influence on the climatic system and of the climate changes on social economic development. Application of synergy methodology in developing principles and methods of management allows to reveal the existence of universal qualitative regularities in the emergence, growth and decline of the structures in complex systems of various nature.

The article considers and analyses the dominant factors of formation of the organizational economic mechanism to pursue policies in the climate change sphere on the example of the Republic of Belarus and presents new principles of self-organization in the realization of the policy and activities in this field on the basis of the synergy approach. It also indicates the directions to attract international technical aid to solve the problem of the climate change.

The author shows that the synergy methodology in conjunction with the traditional approaches would permit to act on a conceptually new level in anticipating the development of economic and social systems. The article demonstrates the necessity of optimal combination of management, organization and self-organization as the criteria of the efficiency of the mechanism in question.


 

This publication was prepared in the framework of EU AENEAS — UNHCR project “Strengthening the Protection Capacity in the Republic of Belarus — phase II” 

project_0708

 

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