Belarusian Journal of International Law and International Relations 1998 — N 2


International Law

The Theory of International Law

The Republic of Belarus under Integration — Yury Brovka

On Realization of the Principle of Equality and Self-Determination in the International Practice — Alexey Mankevich

The Problem of Raising the Efficiency of the Activity of the Permanent Court of Arbitration — Andrey Popkov

International Humanitarian Law 

Towards the Nation of  “the Refugee” — Ludmila Pavlova, Yury Sarashevsky

Bilateralism and Regionalism in the Protection of Minorities with Special Regard to the Hungarian-Rumanian Treaty on Co-operation & Minority Protection (Report) — Peter Kovach (only russian)

International Organizations

European Community: Towards the Legal Nature of  an International Organization — Yury Lepeshkov

International Criminal Law

The problem of Universal Jurisdiction and Extradition in International Criminal Law — Igor Fisenko

International Private Law

The Correlation of the International Private Law and International Economic Law — Mariya Loiko

Jurisdictional Immunity of States: Codification Prospects — Oleg Kravchenko

The Forum of the Young

Economic Sanctions in International Law: Some Issues of the Theory and Practice of Application — Kim Latypov

International Relations

The Evolution of the Social System and International Policy of Contemporary Poland — Mechislav Chesnovsky

Belarus, Russia and New Europe — Anatoliy Rozanov


English Summaries

“The Republic of Belarus under Integration” (Yury Brovka) 

The article considers the outlook for the development of Belarusian statehood in the conditions of integration projects implementation at the world, regional and subregional levels. It shows the peculiarities of the implementation of international legal personality of the Belarusian State at the different stages of its development. It gives a special attention to political and legal aspects of improving of interstate integration structures, both the current functioning ones and the ones being developed. The article marked out the parameters of the integration mechanisms, which should provide the optimal efficiency of cooperation among the states, participating in the integration process without detracting from their sovereignty and international legal personality.

“On Realization of the Principle of Equality and Self-Determination in the International Practice” (Alexey Mankevich)

The principle of equality and self-determination of peoples is one of the fundamental principles of modern international law. It is enshrined in the UN Charter and specified in other international legal documents. But its realization often goes contrary the principles of territorial integrity and border inviolability of states.

The right for self-determination means the right of every people to determine freely its political status and realize its development. This realization can lead to the formation of a new independent state through decolonization or separation from an existing state. Some peoples or the separated parts of one people can unite and form one state. This can be also preceded by separation. In philosophy, self-determination is understood as the realization by the peoples of the striving to gain the most favourable position concerning the environment. This, in particular, presupposes the formation of big states at the expense of the territories of other peoples.

The international community consists of states and protects primarily their interests. That is why it puts limitations on the possibilities of the realization of the self-determination right. Only the population of colonies is recognized to have this right in full. Its realization should not violate the territorial integrity and political unity of sovereign states. Though the latter should adhere to the self- determination principle and get the government which represents the whole people of the territory in question. The international community prefers the self- determination issues to be settled within the existing state borders and only by peaceful means. The opposite attempts were successful only in certain favourable international situations.

“The Problem of Raising the Efficiency of the Activity of the Permanent Court of Arbitration” (Andrey Popkov)

This article is devoted to the problem of increasing the efficiency of activity of the Permanent Court of Arbitration (PCA) at the contemporary stage. The complex of issues concerning the extension of the jurisdiction of the PCA and the improvement of dispute settlement mechanisms under its aegis are examined in the article. Some aspects of establishment of the Financial Assistance Fund for States Parties to the Hague Conventions of 1899 and 1907 on the Settlement of International Conflicts that face financial difficulties in recourse to the conciliation and arbitration procedures of the PCA are considered. The Steering Committee recommendations are analysed withing the PCA reformation process and preparation of the Third Peace Conference in 1999: Integration of the PCAin the United Nations system as a complementary means of dispute settlement; introduction the PCA Optional Rules with mechanisms set forth in the HAgue Convention of 1907; inclusion of Organizations as parties in PCA dispute resolution in newly-expanding fields, such as environmental law. The author makes a conclusion that the reformed PCA will meet the needs of modern international life and be able to become one of the most effective means of dispute settlement in the new century.

“Towards the Nation of  “the Refugee” (Ludmila Pavlova, Yury Sarashevsky)

The article explores the process of the formation of the definition of "the refugee" in iternational law. The institution of refugees originated as an internal institution of grauting asylum to the people who were persecuted by the authorities of the countries of which for political reasons they were residents. The international legal protection of refugees was first legally codified within the framework of the League of Nations as the answer to the massive forced displacement of people in the wake of World War I, the collapse of the Ottoman Empire, the establishment of the Bolshevik power in Russia and the fascist regime in Germany and the beginning of its aggressive annexationist policy. That is why the Agreements of 1926, 1928, 1933 and 1938 which contain the definitions of "the refugee" were bound to certain events and regions. The concluding stage in constituting the international mechanism for securing the rights of refugees has become the activity of the UN in ther area. The authors see the reasons defermming this situation in the following two factors: - the objective one - the necessity of the help of the international community to repatriate a multitude of regugees and DPs after World War II; - the subjective — the responsibility of the UN organs (the General Assembly and the Economic and Social Council) as ensnrined in the Charter for the promotion of human rights. As the result of the UN activity the convention of 1951 on the refugee status was adopted and special organs were set up: the Office of the UN High Commissioner for Refugees (UNHCR) and its Execitive Committee, bound according to the Charter of 1950 to provide international protection and to render assistance in seeking the solutions of the problems of the refugees. The definitions of refugees as formulated in the Convention of 1951 and the Charter of UNHCR have embodied the notions of the preceding agreements recognizing as such only the category of political refugees persecuted for their race, religious beliefs, citizenship, belonging to a certain social group or political persuasions. Similar to the Agreements of the League of Nations these definitions contained geographical and regional constraints. With the Protocol of 1967 adopted, the conventional definition of "the refugee" has acquired the universal character. The article emphasizes that the developments of the 50 s- 70s connected with local armed conflicts, contradictions between nations, national liberation movement which enveloped the African and Asian Continents and, following the collapse of the USSR and the Jugoslavian Federation, also a member of post- Soviet regions, brought about a massive stream of refugees who are not covered by the definition of 1951. The UN failed to adopt resolutions concerning broader interpretation of the notion of 'the refugee' because of the opposition of several European countries (Great Britain, Switzerland), the USA and Australia which sought to protect themselves from the influx of new refugees. The UN organs: the General Assembly and the ECOSOC merely confirmed post factum the extention of the UNHCR mandate to provide humanitarian aid to the refugees. The radical changes of the notion of "the refugee" which take into account the causes (armed conflicts between nations) were reflected in the OAE Convention of 1969, the Cartagena Declaration of 1984 and the CIS Agreement of 1993 with the latter introducing a new category of refugeestorced migrants (the citizens of the receiving state) into international legal usage. The European regional organizations (the Council of Europe and the European Union) directed their efforts at developing a single policy of the European States concerning non-refoulement of those categories of the refugees which are not covered by the definition of the Convention of 1951. Following the analysis of the current state of the problem the article comes to the conclusion that to raise the effectiveness of the mechanism of securing refugees' rights it is necessary to introduce changes in the definition of "the refugee" according to the Convention of 1951, taking into consideretion the supplements, accepted in regional conventions through the adoption of the Supplementary Protocol which would include the article of the responsibility of the states.

“European Community: Towards the Legal Nature of  an International Organization (Yury Lepeshkov)

The present article aims at analysing the international legal aspects of the legal nature of the European Community as a unique regional organisation. This issue has been incessantly debated by international lawyers for almost fifty years, always giving rise to new points of view, indeed, sometimes right opposite ones.

An attempt is made in the article to compare and analyse different points of view on the legal nature of the Community. First and foremost, it concerns the notions of the adherents of the idea of the EC as a state-like organisation and also the supporters of the view on the EC as one of the so-called 'supra-national' international organisations. It is very important that the article gives a comparative analysis of the EC and 'classic* models of state-like establishments (particularly, a federation or a confederation).

The article investigates the issues of international legal personality of the EC and analyses the peculiarity of the organisational structure and competence of the EC organs; an emphasis is made on the necessity of differentiating between such notions of the European Community and the European Union, which, though often used to denote the same phenomenon, are not the same from the legal point of view.

“The problem of Universal Jurisdiction and Extradition in International Criminal Law” (Igor Fisenko)

The article analyses the universal jurisdiction as a special type of exterriyorial jurisdiction which does not reguire 'personal' connection of the state establishing jurisdiction with the crime. The universal jurisdiction follows the general condemnation of that crime and bears a contractual character.

The universal jurisdiction is an exception concerning common crimes. In the case of crimes of international character the universal jurisdiction is the rule. It follows from the general condemnation of these crimes and the criminality of the activities of many states. The rule today is the universal jurisdiction including the international crimes. Here though the criminality in the international criminal law is not a condition, in this case the universal jurisdiction appears to be a type of international criminal jurisdiction.

The system of the universal jurisdiction presupposes the use of internal mechanisms by the states for the the court prosecution of the criminals according to their legislation or extraditing them to another state for the prosecution. The extradition is one of the two basic components of the universal jurisdiction and the effectiveness of the whole system depends on its effectiveness.

The article gives the definition of the extradition, reviews the restrictions, which hinder its implementation and makes a conclusion about their inapplicability to international crimes.

In any case the traditional institution of criminals' extraditions from one state to another is not the optimal variant of prosecution mechanism for the international crimes. It is very difficult to provide the uniformity of penalty in the system of universal jurisdiction and also the respect of the principle NON BIS IN IDEM.

In order to improve the situation in the mechanism of universal jrisdiction it is necessary to turn to the alternative prosecution mechanism — the international criminal court. The states should be given the freedom of choice between the international criminal court and extradition to another state or trials in their own courts.

The article concludes by a model for an international criminal court with the parallel jurisdiction and suggests the solution of a number of jurisdictional issues, concerning its establishment.

“The Correlation of the International Private Law and International Economic Law” (Mariya Loiko)

This article devoted to that aspect of the correlation between Private and Public International Law, which is connected with the forming and development of International Economic Law. The author analyses a number of theoretical conceptions in this field. In order to create the objective basis for the formulation of the final conclusions, the author defines the relevant questions in all mentioned conceptions. The article uses comparative analysis of the International Economic Law and International Trade Law as a scientific method of the examination. The author draws a conclusion about the impossibility to amalgamate the norms of International Public Law and domestic law (including the norms of International Private Law) in the framework of International Economic Law. The author supports the idea of the creation of a separate branch of science- International Economic Law, inter alia, in the conditions of the Republic of Belarus.

“Jurisdictional Immunity of States: Codification Prospects” (Oleg Kravchenko)

The article is devoted to the questions of elaboration of multilateral international treaty in the field of jurisdictional immunities of States. The Convention for the Unification of Certain Rules Concerning the Immunities or Vessels of 1926 and The European Convention on State Immunity of 1972 are analyzed. Draft multilateral treaties in this field worked out by the Institute de droit internationel, the Law School of Harvard University, The International Association of Lawyers and The International Law Association on the basis of comparative analysis. Special attention is given to consideration and analysis of the draft articles on jurisdictional immunities of States and their property elaborated by the International Law Commission. Some proposals on changing the draft articles are made. The positions of States on the adoption of the Convention on jurisdictional immunities of States and their property are studied. On the basis of draft articles provisions analysis and positions of States conclusions on prospects for the adoption of universal convention and Belarus participation are formulated.

“Economic Sanctions in International Law: Some Issues of the Theory and Practice of Application” (Kim Latypov)

The article is devoted to the consideration of some current legal issues of the international sanctions and the practice of their application.

The article makes comparative analysis of the views of national and foreign researchers on the notion and conditions of the application of economic sanctions. The author, opposing the broader interpretation of the content of that term, suggests considering as international economic sanctions only those measures of economic coercion, which are applied by the international organizations towards the states, that have violated the principles and standards of international law.

From the point of view of the rightfulness and effectiveness the author subjects to the critical analysis most of the actions of the economic coercion which have taken place during the last decades.

The article concludes that only the measures of economic influence applied within the framework of the institute of international responsibity of states meet the criteria of rightfulness and effectiveness. Some states' assumption of the right to apply economic coercion only at their own discretion leads to the arbitrariness in international relations.

“The Evolution of the Social System and International Policy of Contemporary Poland” (Mechislav Chesnovsky)

Large-scale changes are underway in the country which is barely over with being socialist and bearing the name of the Polish People's Republic: a transformation of the old economic and social system is progressing and new international goals are being outlined. Poland was the first among the countries of the former socialist camp to take this path. The social-political locomotive of this process was the legendary all-Polish trade-union 'Solidarity'. It was its leaders who took the risk of carrying out the "shock therapy" policy which turned out to be the most radical one in the post-socialist countries.

The reform didn't run smooth. The reformers pushed the solution of social problems to the background and lost the confidence of the people. The parliament elections of 1993 brought to power their recent opponents- communists who seemed to have been crushed. The main stronghold of the 'Solidarity' fell in 1995 — Lech Walesa gave up the President's place to the Social-Democrat Alexandr Kwasnewsky. But the most recent elections (1997) gave a sweeping success to the right-wing 'Solidarity' again. The reasons for the shifts in the political sympathies in Poland remain in the social and economic spheres. The big state plants are still in crisis, with up to 50% of all workforce in the country employed there, the systemic restructuring has manifested its positive results there least of all.

The crucial question for the present ruling elite is paying the voters' bill of credit. For the policy of regulated limitation of social rights has been traditional for the right-wing forces. Poland may be expected to encounter new surprises at the next elections, caused by the failure to meet the workers' expectations.

The daring and difficult stage of general civic, social, economic and political reformation culminated in adopting the Constitution of the Republic of Poland in 1997. The new fundamental law confirmed the transition from totalitarianism to democracy as it was dictated by the spirit of the epoch.

Poland seeks comprehensive economic cooperation and integration with the West, regarding this path as a guarantee of swift economic reforms and overcoming the barriers in development. Integration into the European Union ranks first. It has been spontaneously going on from the beginning of the 90s. In December 1997 the country got the approval for the next stage of the integration - the negotiations for joining the Community. Three important objectives should secure a high position of Poland in European and world economy: technological and structural modernization, discharching the debts and joining the EU. The implementation of this policy should take the period till 2010.

The foreign policy of Poland turned in the 90s from the East towards the West. The priority is joining the European collective security structures NATO and West European Union. There is an opinion that took shape in Polish society that this course is going to ensure the inclusion of the country into the European security system as a full-fledged partner but not as a liege.

Another foreign policy priority of Poland is friendly relation with neighbours. Its legal realization has already secured the conclusion of treaties on cooperation with neighbours; though all of them are new environment for Poland. Real friendly relations take time to shape, especially regarding Russia. The revival of neo-imperial Russian policy can not be discounted which might threaten the sovereignty of Poland.

The third priority of Polish foreign policy is an active part in all-European affairs complemented by real influence along the regional and Baltic axes.

If could be hindered by the German-Russian rapprochement which already took place in history. That is why Polish concept is based on the admission of the rapprochement of Russia and the Federal Republic of Germany only in the degree which is commensurate with the strengthening of the European positions of the Polish State.

Polish diplomacy considers as the indisputable achievements of the recent years in foreign policy the recognition of the western border of Poland by the government of the reunited Germany and the peaceful withdrawal of Soviet (Russian) troops from its territory and it hopes that the admission of the Republic of Poland to NATO will be the third success.

“Belarus, Russia and New Europe” (Anatoliy Rozanov)

The international image of Belarus is inseparably connected to the Russian factor. Belarus sees its future as very closely tied to that of Russia. According to the Belarusian authorities, Europe will enter the 21st century as a peaceful and stable continent only if its security system meets the following criteria. First, it should be able to withstand effectively both old and new threats to security, first of all such threats as regional conflicts, terrorism, organised crime etc. Second, the system of European security should be indivisible and take into account the interests of all states of the continent. All European countries should have equal rights in making decisions concerning the future of the continent not only de jure but also de facto. Third, it is necessary to choose a security model which would unite nations and not create a threat of new divisions of the European continent. The OSCE could become a basis of a system which would meet the above mentioned criteria. In this perspective, within the framework of the OSCE already existing institutions including NATO could have an adequate place. Belarus is opposed to efforts to make NATO a cornerstone of a new European security architecture. The Belarusian leadership believes that the OSCE could take the role of a co-ordinator of European and transatlantic institutions in securing peace and stability in Europe. Belarus seeks to be engaged in a constructive dialogue with NATO and to deepen co-operation in the framework of the Euro-Atlantic Partnership Council which will become an important instalment of strengthening confidence and prevention of crises in Europe. Belarus indicated its desire to be more actively involved in the Partnership for Peace and it has already taken steps to this end. Belarus considers that the enlargement of the Atlantic Alliance should be accompanied by its internal transformation from the military-political to the political-military dimension and that the countries whose interests the enlargement of the organisation affects to the greatest extent should get involved in a dialogue with NATO on a broader scale. Belarus regards the signing of the Founding Act between Russia and NATO as a first goodwill step towards the creation of a new European security architecture. Belarus is going to work to ensure that its interests are in a similar way taken into consideration in the context of NATO enlargement. The Belarus' government has proposed to use the dual track approach of developing practical co-operation with NATO and holding simultaneous and parallel talks on the elaboration of an agreement on relations of partnership and co-operation between Belarus and NATO. It is sometimes said that the enhanced co-operation between Belarus and Russia has been prompted by NATO's plans for eastward expansion. But a Russia-Belarus union has been discussed by political leaders of both countries for several years now, preceding any Western plans for expanding NATO eastwards. Belarus claims that its movement toward a closer integration with Russia is its regional contribution to the Euro-Atlantic security.

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