Belarusian Journal of International Law and International Relations 1998 — N 3


International Law

Theoretical Issues

Towards the Correlation of International and National Law (Theoretical Aspects) — Alla Zybailo

Peaceful Settlement of International Disputes

International Arbitration Procedures and Modern Trends of Their Evolution in International Law — Andrey Popkov

International Legal Responsibility

International Criminal Responsibility of States — Igor Fisenko

The Commitments of the Republic of Belarus on Stopping Serios Violation of International Humanitarian Law and Their Implementation in Criminal Legislation — Vitaliy Kalugin

International Organizations

On the New Provisions of the Amsterdam Treaty of 1997 Related to the Closer Cooperation of the EC Member States — Vladimir Astapenko

The European Community Law: the Underlying Principles — Yuri Lepeshkov

International Private Law

Arbitration Agreement: Theoretical  Issues of Practical Value — Natalia Shelkoplyas

International Relations

Foreign Policy Mechanism and Diplomatic Service of Rzeczpospolita and Grand Duchy of Lithuania in 1569—1795 — Alexandr Tikhomirov

The History of Chinese Eastern Railway and Russian Colony in Manchuria at the End of XIXth — the Beginning of the XX Century — Nadezhda Ablova

Cultural Cooperation of Belarus with the Countries of Central and Eastern Europe (1956—1985) — Victor Shadursky

Issues of Coming-into-Being of the Union of Belarus and Russia — Alexandr Sharapo

The International Regime of Non-Proliferation: Political Aspects of Its Functioning — Vladimir Yelfimov

International Economic Relations

An Analysis of Forms and Instruments of State Regulation of Capital Flows — Yelena Vassilyeva

State Regulation of External Trade Relations — Alexandra Nechai

Conceptual Fundamentals of Foreign Borrowing of the Republic of Belarus — Yelena Davydenko


English Summaries

“Towards the Correlation of International and National Law (Theoretical Aspects)” (Alla Zybailo)

The article is devoted to the problem of correlation between international and national law.

The article analyses the concepts of the supporters of the dual and monist doctrines on the correlation of international and national law. The author supports the position of the existence of some connection between two legal systems which  does not have mutual subordination but is characterised by mutual coordination, correlation and complementation. The author generalizes the points of view of Soviet and Russian scientists concerning the concepts of ‘implementation’ and ‘transformation’ of the norms of international law and comes to a conclusion that national legal implementation creates only legal premises for their realization; transformation does not transform the norms of international law into norms of national law; it leads only to some changes in the provisions of international agreements during the process of their application within the state.

“International Arbitration Procedures and Modern Trends of Their Evolution in International Law” (Andrey Popkov)

The article considers basic conceptual approaches to the improvement of arbitration procedures in international law. The main attention is paid to modern tendencies of developing institutionalized international arbitration. The author connects the future of institutionalized arbitration with arbitration process between States and private parties (mixed arbitration), arbitration procedures in the framework of the regional international organizations and specialized arbitration. An attempt to define the legal nature of mixed arbitration and to investigate the issue of differentiating legal and political disputes within regional arbitration procedures is made in the article.

“International Criminal Responsibility of States” (Igor Fisenko)

The article analyses the issue of the character of international criminal responsibility of states and different approaches to its content.

The idea of special regime of international responsibility of state for committing international crimes is considered now to be widely recognized. It was discussed during the preparation of the documents drafts in the International Law Commission. It has been noted that in the existing and operating international conventions devoted to combating international crimes the problem of responsibility has not been solved and this is considered to be their essential drawback. International legal and arbitration bodies have never, in fact, discussed the issue about differences in the regimes of responsibility for international illegal activities of various gravity.

Such a situation in the international law makes for a serious controversy in the doctrine on international criminal responsibility of states. One influential trend in the doctrine recognizes the criminal character of this kind of responsibility. It is represented by V. Pella, de Varbles Donnedieu, H. Lautenpacht and their present-day followers (e. g. M. Farhad).

The concept of international criminal responsibility of states as a holistic concept is represented only by one author - V. Pella, while the others proceed from the practical value of this concept which lies in the idea of not leaving unpunished the state - the main subject of international crimes. The main aim of this concept is considered to be the substantiation of a special regime of responsibility of states for international crimes and the wish to single it out from the general theory of responsibility of states for the actions which violate international law.

In reality two main components for the execution of criminal justice as regards the states have not been created. They are the International Criminal Court and international criminal code. Due to these reasons the practical enforcement of criminal responsibility of states today is not possible. The states bear political responsibility for the international crimes which lies beyond the framework of obligations to compensate the damage and stipulates preventive and punishment measures.

“The Commitments of the Republic of Belarus on Stopping Serios Violation of International Humanitarian Law and Their Implementation in Criminal Legislation” (Vitaliy Kalugin)

The article is devoted to the issue of the realization of international commitments of the Republic of Belarus on stopping serious violation of the international humanitarian law, following the Geneva Conventions on the Protection of War Victims of 1949 and its Supplementary Protocol I of 1977. The article gives a historic review of the development of the institution of  personal responsibility for the commitment of war crimes, and cites the list of serious violations of international law. Both the Criminal Code in operation and the Draft Criminal Code of the Republic of Belarus, adopted in the first reading by the House of Representatives of the National Assembly of the Republic of Belarus are considered from the point of view of their meeting the stipulations of international humanitarian law.

The article puts forth some proposals aimed at the perfection of the regulations of the Criminal Code Draft of the Republic which stipulate the punishment of war crimes.

“On the New Provisions of the Amsterdam Treaty of 1997 Related to the Closer Cooperation of the EC Member States” (Vladimir Astapenko)

The article “On the New Provisions of the Amsterdam Treaty of 1997 Related to the Closer Cooperation of the EC Member States” is devoted to the flexibility procedures that are to be incorporated in the text of the Treaty on the European Union upon the entering into force of the Treaty of Amsterdam. The author considers the starting conditions which led the participants of the Intergovernmental conference to the elaboration of the special arrangements for the enhanced cooperation, then he examines new articles on flexibility proposed to the Treaty on the European Union and the Treaty establishing the European Community. Special attention is given to the criteria which are to be fulfilled in order to start closer cooperation and appropriate procedures to be applied. The author concludes that although some flexibility is provided for by the Treaty of Amsterdam it would be rather difficult to expect that this possibility could be actively used by the present or future Member States of the European Union.

“The European Community Law: the Underlying Principles” (Yuri Lepeshkov)

The present article is devoted to the legal foundations for the European Communities  activities. The author attempts to explore the content of the underlying principles of the EC Law: the principle of the supremacy of the EC law over the international law of the member-states and the principle of direct action of the norms of the EC Law on the territory of the member-states. The article pays great attention to the analysis of the well-known rulings of the EC Court which, in fact, have strengthened the above mentioned principles and contributed to their further use in practice. The article also explores the role and significance of the fundamental principles of EC Law in the sphere of international relations regulation within the framework of European Communities.

“Arbitration Agreement: Theoretical  Issues of Practical Value” (Natalia Shelkoplyas)

The article devoted to the theoretical aspects of the arbitration agreement as a specific type of agreement which has the legal proceedings effect. The author underlines  the existence of two types of arbitration agreement: arbitration clause and arbitration memorandum and focuses on exploration of arbitration clause as the most frequently used in practice during the singing of commercial contracts with foreign partners.

The article states the necessary conditions for the drawing up of the arbitration clause, the arbitration type and the categories of disputes submitted to it, the requirements for the arbitrator, the laws, which apply to the disposal of the dispute, rules of procedure and the order of arbitration expenses distribution on the basis of analysis of regulations of foreign arbitration legislation, IKA Modern Law, Arbitration Rules of UNISTRAL and European Commission on International Commercial Arbitration of 1961. The author comes to the conclusion that the main advantage of arbitration over court trial is the democratic nature of arbitration. However, a lighter degree of freedom requires a higher degree of responsibility and extra efforts of the parties in self-regulating the arbitration process.

“Foreign Policy Mechanism and Diplomatic Service of Rzeczpospolita and  Grand Duchy of Lithuania in 1569—1795” (Alexandr Tikhomirov)

The article explores the mechanism of the foreign policy of Rzeczpospolita (RP) in 1569—1795 and reveals the peculiarities of the interaction of the organs of the state of RP (the King, The Sejm, the Chancellor, the hetmans, etc.) in the realm of foreign policy implementation. Attention is drawn to the political system peculiarities affecting the diplomatic service organization which resulted in separate diplomacies of the king and of the Republic. It is noted that the aspirations of magnates and szlachta to preserve the old order of “the golden liberties” hindered progressive restructuring of the diplomatic service of RP. Neglecting the advanced experience in diplomacy organization reduced its efficiency, made RP dependent on other countries and eventually led to its liquidation as a sovereign state. The article pays significant attention to the role played by the Grand Duchy of Lithuania (GDL) in the foreign policy of RP and stresses that up to the end of the XVIIth century the ruling elite of the GDL strove to retain autonomy in diplomacy, forcing the Polish Kingdom to take the GDL’s interests into consideration. The structures in the administration of the GDL entitled to foreign relations endured up to the end of the XVIIIth century. Especially important was the role of the GDL diplomacy in the relations of RP and Russia. At the same time the diplomats of the GDL within the term of RP existence did not limit themselves to the eastern direction but maintained contacts with the states of the Western Europe (Sweden, France etc.).

“The History of Chinese Eastern Railway and Russian Colony in Manchuria at the End of XIXth — the Beginning of the XX Century” (Nadezhda Ablova)

The article is devoted to the history of the construction of Chinese Eastern Railway and the establishment of Russian colony in Manchuria at the end of the XIXth – the beginning of the XXth century. After the defeat of China in the Japanese-Chinese war of 1894–1895 Russia succeeded in realization of the project of S. Ju. Witte of constructing a railroad in North-Western China. Rus-sian-Chinese Alliance Treaty and the “Contract of Construction and Operation of the Chinese Eastern Railway” were signed in 1896. The works on the Chinese Eastern Railway construction started in 1897, the construction of Harbin, the administrative centre of the Railway started in spring of 1898. In 1903 Harbin which sprang forth in the wilderness counted 44 576 residents, 15 579 of whom were Russians.

The conditions of the contract of 1896 have been realized in full. The Chinese Eastern Railway, constructed in Manchuria was not merely a railroad (with rails, sleepers, trains, railroad stations and their personnel). The implementation of the concept led to the establishment in Manchuria of the peculiar phenomenon: on deserted Chinese lands there grew a ‘state within a state’ – Chinese Eastern Railway with its marked borders, territory, multinational population, police and the army, the court and municipal administration and with this railroad Russia soon received a powerful instrument for implementing its policy in the Far East.

“Cultural Cooperation of Belarus with the Countries of Central and Eastern Europe (1956—1985)” (Victor Shadursky)

The article considers the evolution of the main trends and forms of contacts of  Belarusian Soviet Socialist Republic with the countries of socialist community in the cultural sphere during the period of 30 years. The work explores the mechanism of regulation of the international activities by the state-party administration and gives the analysis of foreign contacts of the republic which included the cooperation between the regions of BSSR and the administrative regions of the states-members of the Warsaw Treaty on the basis of bilateral plans, the partnership connections between single cities, enterprises and instructions, action in the framework of plans and treaties of the Belarusian Society of Friendship and Cultural Relationships with foreign countries and cooperation involving public organizations of the Republic. The article shows the content of international cooperation in literature, theatre, music and cinema, fine arts and also analyses the issues and difficulties which existed in creative sphere. The article provides vast factual material a significant part of which is introduced into scientific discussion for the first time.

“Issues of Coming-into-Being of the Union of Belarus and Russia” (Alexandr Sharapo)

The emergence of the Union between Belarus and Russia is taking place along with the activitizion of search for the most acceptable and mutually advantageous forms of cooperation among the CIS member-states. On the one hand, the idea of no viable alternative for establishing strong CIS is reaffirming itself among the member-states, on the other hand the recent years show the growth of the tendency of turning the relationships among the CIS member-states onto the bilateral basis. Thus the establishment of the Union between Belarus and Russia looks quite justified, it presents neither challenge nor opposition to the other CIS member-states, nor exerts any pressure upon them.

The way to that Union was not smooth and the shaping of the position of Treaty sides was not easy either.

Proceeding from the character of disagreements and discussions on this topic it is possible to outline the following set of the most characteristic and important issues of the further formation of the Union:

1. Forms in which the Union of Belarus and Russia  (a single state, a confederation and so on) should finally result

— the first opinion – a single state, rapid determined reintegration (supported by the ‘Left’ and ‘patriotic’ forces);

— the second opinion – a certain confederation with preserving the sovereignty of both states (supported by ‘centrist’ organizations).

2. The correlation of legislative acts of the Union with the national legislation, the level of their legal binding force or advisability

On the one hand, there are proposals to interpret the decisions of the Higher Council and other supranational bodies even without their ratification as binding for the Union as a whole, on the other hand there exists a proposal to synchronize the legislation first and to establish a general parliament of the Union.

3. The economic aspects

The existence of a big amount of discrepancies in the principles of the economic policy formation, the differencies in a number of conceptual issues – the open market or ‘market socialism’; the issues of reforms going at different rates.

4. The issues of external political and economic activities of the Union

The consideration of the reaction of the Western countries to the establishment of the Union, the issues of the subject of international law.

5. Military cooperation

The development of the common position on the principal documents on disarmament, the issues of NATO expansion, the issues of urgency and even the necessity of close military and political integration and collective security.

“The International Regime of Non-Proliferation: Political Aspects of Its Functioning” (Vladimir Yelfimov)

The article explores the issues and pecularities of the functioning of the international nuclear non-proliferation regime during the last 30 years of its existence. Flexibility and efficiency of the political regulation instruments are becoming some of the key factors of international stability and security in the conditions of scientific-technical revolution and globalization of world processes. In this context the issues of adapting the nuclear non-proliferation regime to the realities of postconfrontation epoch are becoming extremely relevant.

Today the priority objective of the regime lies in counteraction to the horizontal proliferation of the nuclear weapons. The expansion of the ‘nuclear club’, the transformation of the ‘nearly nuclear’ states into the nuclear ones threatens not only the world today but it can deprive the world community of the very perspective of getting rid of nuclear weapons. Meanwhile, the regime, which was created during the confrontation of two superpowers and had only applied functions of the second echelon of the maintenance of the global power balance, with the disintegration of the latter faced the necessity of reformation. The non-proliferation regime, which had as its core the guarantees of nuclear superpowers, should now itself guarantee the security to its members and thus to provide its stability in accordance with trends towards the multipolar world. The most promising steps in this direction are the universality of norms and rules of the regime and also elimination of disproportions in rights and obligations of the nuclear and nonnuclear states.

“An Analysis of Forms and Instruments of State Regulation of Capital Flows” (Yelena Vassilyeva)

The article is devoted to the issue of the modern theory of state regulation of international capital flows and also to the analysis of the experience of some countries in that sphere. World experience shows that either insufficient or excessive inflow of capital is equally undesirable. A consideration of specific features of the specific instruments of this type of regulation, their possibilities in the solution of the specific issues, positive and negative consequences of their application is necessary for the successful regulation of the capital flows. The article explores the methodology of the comparative analysis of types and instruments of state regulation of the capital flows from the point of view of their efficiency which allows to select their optimal combination depending on the aims and objectives of the foreign investment policy and thus to avoid errors and difficulties which faced the host countries some time ago. Not only the comparison of the effectiveness of certain instruments but also the clarification of their efficiency depending on the stage of the operations, realized within the framework of investment activity, has practical importance.

The above mentioned classification of instruments of state regulation of foreign investments and the comparative analysis of different instruments from the point of view of their efficiency can be used for developing and improving the policy of attraction of foreign investments to the economy of the Republic of Belarus.

“State Regulation of External Trade Relations” (Alexandra Nechai)

The article is devoted to the theoretical analysis of the international experience of state regulation of external trade relations.

The article critically evaluates some variants of free trade and protectionist external trade policies and some possibilities of their implementation in the countries with transitional economy. The analysis is given from the position of the impact of tariff and nontariff methods of regulation on both the macroeconomic indeces of the national economy and the economic situation of the economic subject: producers, consumers and the state.

Special attention is paid to the necessity of interaction of internal and external economic methods of state regulation in the conditions of transitional economy taking into account the changing role of the state and the world trends.

The analysis of international experience of state regulation of the external trade relations gives an insight into the external trade policy of the Republic of Belarus.

“Conceptual Fundamentals of Foreign Borrowing of the Republic of Belarus” (Yelena Davydenko)

Resorting to foreign loans sovereign borrowers ensure the achievement of a number of important objectives, the principal of which being the following:

— balancing the balance of payments of the country,

— participating in international trade,

— maintaining the economy development rate.

These main macroeconomic objectives are interrelated and, in their turn, determine the necessity of setting up an efficient system of foreign loans and foreign debt management.

In the conditions of the Republic of Belarus foreign loans have some advantages over other foreign financing sources:

— a possibility of a quick use of considerable amount of finance in hard currency for economy needs,

— a possible access of the recipient country to the resources of international financial organizations,

— elaboration of effective procedures of project financing and investment project analysis entailing from getting foreign loans.

The foreign debt of the Republic of Belarus is formed under the pressure of a member of external factors which have caused the necessity of a sharp increase in foreign borrowing (the absence of its own raw materials and the severance of the traditional economic relations). As a result, the foreign debt structure is characterized by the predominance of the projects which are not self-repaid in hard currency and tight credit lines with hard repayment conditions.

Possible practical measures to improve the existing situation should be; the restructuring of the accumulated debt, the refusal to make use of the credit lines on the conditions overburdening the Republic and strict selection of projects against the newly drawn credits with the guarantees of hard currency self-repayment.

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