Belarusian Journal of International Law and International Relations 1998 — N 4


International Law

Theoretical Issues

Humanitarian Intervention and Humanitarian Assistance — an Echo from the Past and a Prospect for the Future — Gerard Tanja (only russian)

Peaceful Settlement of International Disputes

The Concept of International Arbitration and Its Historical Evolution — Andrey Popkov

International Criminal Law

The System of Criminal Prosecution for International Crimes: International Commissions and the International Criminal Courts — Igor Fisenko

International Private Law

The Immunity of the State and the Protection of Intellectual Property Rights — Ruben Galstyan

Regional Patent Organizations — Yelena Leanovich

The Legal Aspects of International Collaboration in Information and Telecommunications Technologies — Yulia Kudravets

State Law of Foreign Countries

Local Self-government and Government Abroad (Some Theoretical Issues) — Michail Chudakov

International Relations

The Policy of Russia Towards Central and Eastern European Countries: Warsaw Point of View — Mechislav Chesnovski

The European Union Security and Defence Policy — Ludmila Khukhlyndina

The role of Ethnic-Religious Contradictions in the Bosnian Crisis in the 90s of the XX Century — Katya Bencheva

The Political Situation on the Chinese Eastern Railway after the Collapse of the Russian Empire — Nadezhda Ablova

The Regional-International Aspect of the Kurdish Problem — Dibo Kava

International Economic Relations

Open Economy Models — Ludmila Petrovskaya, Pavel Shipuk

Company Longevity — Ludmila Klimovich


English Summaries

“The Concept of International Arbitration and Its Historical Evolution” (Andrey Popkov)

International Arbitration is one of the oldest alternative methods of peaceful settlement of international disputes. In its modern form arbitration is a result of historical evolution. The emergence of international arbitration is indissolubly connected with the search for legal means of arbitrariness and violence limitation in international relations. Since ancient times arbitration has played an important role in the system of peaceful settlement of international disputes. The first cases of arbitration are known from the practice of the states of Ancient Greece, Ancient East and Ancient Rome. Frequent application of arbitration in the Middle Ages has resulted in the formation of a separate institute of international law. However, we can speak about the formation of the concept of modern international arbitration, only since the end of the XVIII century, i. e. after the successful arbitration settlement of the disputes concerning English-American relations on the 1974 “Jays Treaty” basis. Since that moment the arbitration registration has been involved into regular state practice. The first attempts of codification of international arbitration process norms were realized during the Hague Conferences of 1899 and 1907. These conferences adopted the Hague conventions on peaceful settlement of 1899, 1907 international conflicts. Further development of international arbitration process was realized within the framework of the activities of the League of Nations, the UN and regional international organizations.

The problem of international arbitration is becoming more topical on the eve of the Centennial of the First Peace Conference and the completion in 1999 of the UN Decade of International Law. In 1999 it is planned to hold the centennial Third Peace Conference and a number of other events on regional and international scale. The main objective of the Third Peace Conference will be the development of recommendations on the elaboration of international legal norms which have been formed on the basis of the Hague Conventions and declarations of 1899 including the norms of international arbitration process.

The article analyzes all the above-mentioned aspects of historical development of international arbitration and the formation of its concept. Special attention is devoted to the potential possibilities of obligatory arbitration in the settlement of international disputes. The author assumes that it is necessary to elaborate a new multilateral legal document within the UN framework which will compensate for the drawbacks in the arbitration theory. The author believes that the 1999 centennial Third Peace Conference would contribute to this process.

“The System of Criminal Prosecution for International Crimes: International Commissions and the International Criminal Courts” (Igor Fisenko)

The article “The System of Criminal Prosecution for International Crimes: International Commissions and the International Criminal Courts” is devoted to the issue of the institutional provision of prosecution for the commitment of international crimes. It analyzes the organization and activities of international bodies in the investigation of international crimes and international criminal legal bodies.

Among the range of investigation organizations the article considers the International Fact-Finding Commission which has been established under Article 90 of the Additional Protocol I of 1977 to the Geneva Conventions on the protection of war victims. The author notes that the Commission has been in existence for quite a long time but has never acted. Moreover, an alarming trend to establish new special commissions viewed as an alternative to the International Commission is emerging. In this connection the commissions on establishment of facts are considered which were established by the UN Security Council regarding the former Yugoslavia and Rwanda.

The author comes to the conclusion that the activities of none of the special commissions led to the results which had been expected, especially in the sphere of prosecution for the violations of international humanitarian law. It seems that this aspect will be a motivation to use the permanent mechanism of International Fact-Finding Commission.

However, the criminal court is the primary body for the prosecution for international crimes where the results of investigations can be offered in evidence.

The idea of the international criminal court establishment was discussed for a long time among international lawyers and was several times close to its realization. However, until recently the only precedent for the international criminal court establishment was Nuremberg and Tokyo international military tribunals. The last decade of the XX century can be regarded as really revolutionary in the sphere of prosecution for international crimes. In its first part two special international tribunals were established within the UN for the former Yugoslavia and Rwanda and in summer 1998 in Rome a historic event took place — the Statute of permanent International Criminal Court was adopted.

The article analyzes in detail the competence, organization and the mechanism of international criminal tribunal activities for the former Yugoslavia on the basis of the tribunal statute; it considers also the characteristic features of the tribunal for Rwanda.

The article also gives brief characteristics of the International Criminal Court to be established in accordance with the decisions of the Rome Conference of 17.06.98 which has adopted the International Criminal Court Statute.

“The Immunity of the State and the Protection of Intellectual Property Rights” (Ruben Galstyan)

The article “The Immunity of the State and the Protection of Intellectual and Industrial Property Rights” is devoted to one of several exceptions to the principle of the foreign state immunity: the exception which limits the foreign state immunity in the investigations regarding intellectual and industrial property rights. This exception is interesting in the light of the topical issue of intellectual and industrial property rights protection in the world of rapidly developing technologies, especially because this exception is given little attention to in special literature.

The main reasons for exercising jurisdiction in the investigations concerned with intellectual and industrial property are: every state has a certain system aimed at intellectual and industrial property rights protection. In case of granting to another state the immunity from court examinations aimed at disputes settlement concerning patents, copyright or trade marks, a probability of deflection of the mechanism of legal protection of the lawful interests of citizens can be very high. This mechanism or the protection system of different categories of rights for intellectual  and industrial property is valid only in case if the violation of the rights registered in the state of the court, took place on the territory of the state. That is why the second reason for jurisdiction enforcement is a territorial connection. If an assumed violation of intellectual and industrial property rights by a foreign state took place beyond the territory of the state of the court there is no ground for jurisdiction enforcement regarding the foreign state.

The exception analyzed can be applied in court investigations regarding establishing the rights of the foreign state concerning patent, trade mark, copyright and other objects of intellectual and industrial property, which fall under legal protection in the state of the court.

Besides, the given exception is valid in court examinations regarding violation or non-observance of the intellectual property rights of the foreign state either during commercial activities or the activities of public nature.

During the development of the Convention draft in the International Law Commission the representatives of a number of European States said that the introduction of the exception limiting the foreign state immunity in the investigations concerning the intellectual and industrial property rights in the draft of the International Law Commission will have a negative effect on their economic grouth. The author believes that the introduction of the given exception in the draft will not bring about these circumstances because it does not touch on the competence of the foreign state what concerns selection and implementation of the national policy by the state within its territory regarding intellectual and industrial property protection.

The author concludes that the given exception from the immunity principle of the foreign state is in compliance with the interests of states which strive to create an efficient system of protection of intellectual and industrial property rights and protect the interests of the owners of intellectual and industrial property rights and not affecting the sovereignty of the foreign state. This exception will allow every state to have its own internal policy on intellectual and industrial property and simultaneously, to observe and respect the laws on intellectual and industrial property protection which exist in another state where the activities of the given state are carried out.

“Regional Patent Organizations” (Yelena Leanovich)

Regional patent organizations are established in the process of intergovernmental patent cooperation in order to reduce expenses connected with patenting in several states. Granting of regional patent considerably reduces material and time expenses during the drawing up of rights for the objects of industrial property and contributes to a closer interaction of national legal systems of their protection.

The regional patent organizations are very specific intergovernmental organizations due to the pecularities of their functions, the organizational structure and a special order of the activities financing. These pecularities are shown in the article on the basis of the analysis of the provisions of constituent documents of the European Patent Organization (EPO) and Euroasian Patent Organization (EAPO).

The information function, control and norm development functions which are typical of other international organizations have no special importance for EPO and EAPO. The dominant place in their activities is taken by the operative function aimed at granting of the regional patents and processing of regional claims.

The organizational structure of the EPO and EAPO consists of two bodies: the higher representative body (regional patent agencies). The regional patent agencies are not only the secretariat of EPO and EAPO, but they also perform the same functions as the national patent agencies.

The charges for sending in the applications, their expertise and granting of regional patents go to the regional patent organizations, that is why they are self-subsidized and pay their own way. The member-states of the regional patent organizations do not pay regular fees.

Intergovernmental patent cooperation is an integral part of the process of regional economic integration. The article analyzes a tendency for the establishment of close cooperation and interconnections among regional patent organizations, instituted for the aims of regional economic integration, on the basis of the study of the activities on bringing into force the system of the Community patent.

“The Legal Aspects of International Collaboration in Information and Telecommunications Technologies” (Yulia Kudravets)

The global means are at present in the process of permanent development and transformation. These changes have given people the opportunity to communicate on the worldwide scale and to share information, thus becoming a global community. Telecommunications have become an inalienable part of modern life; they play a significant role in political, economic and social life of society. Information services and systems are provided on the international scale, that is why a question concerning the establishment of a global system of communication is raised.

Such a new and continiously changing phenomenon as telecommunications technologies has generated legal issues which take the special attention of lawyers. At present the basic problem in this sphere is the definition of the notion of “telecommunications”. Some authors believe that communications are only the technical means of connection provision and the regime of their functioning. However, nowadays a different point of view has prevailed which considers telecommunications to be not only the technical means for creating and transmitting of information but also the process as such, by means of which sharing of information among the individuals with the help of a general system of symbols, signs or gestures is performed. Thus, telecommunications can be viewed as a complex many-sided phenomenon having legal aspects.

Telecommunications while assisting in solving some problems of a person make him face other problems, no less complex. In particular, the worldwide means of information transmitting and broadcasting touch on fundamental human rights because they can influence psychic and intellectual processes in his mind. Information dissemination by means of telecommunications involves the problem of provision of information confidentiality. The means of communication raise a number of problems concerning the provision of copyright and related rights, along with other spheres of law where rather serious legal issues concerning the use of telecommunications means emerge.

Traditionally, legal regulations and national telecommunications control were referred to the internal order of states. However, solution of the given problems is becoming impossible without international collaboration and interaction. The norms of national laws only are not enough to provide this solution due to the fact that the spread of technologies and means of long distance communications has overstepped national borders. That is why coordination of the activities and adoption of joint decisions take place simultaneously on three levels: on the international level under such organizations as the International Telecommunications Union, the International Organization of Satellite Communications, the International Organization of maritime satellite communications, the World Trade Organization; on the European level — by means of establishment of programme documents and guidelines of the European Commission; on the national scale — by applying the implementation mechanism and internal law norms unification. Information and telecommunications technologies touch on many legal issues impossible to solve without a single legal mechanism, which could serve the rights of proprietors and users of information and telecommunications systems and make information and telecommunications services valuable in the information market.

“Local Self-government and Government Abroad (Some Theoretical Issues)” (Michail Chudakov)

The article “Local Self-government and Government Abroad (Some Theoretical Issues)” looks at various aspects of the activities of self-government and government bodies abroad. It presents the concept of local government and self-government. Legal regulation of these activities is expounded and the structures and forms of these bodies are described.

A detailed analysis is given to the constitution clauses of Italy, Japan, the Federal Republic of Germany and France, which are devoted to the regulation of the legal status of local self-government bodies. The role and significance of the European Chapter on Local Self-government of October 15, 1985 is stressed; it affected greatly the European countries and, particularly, the ‘postcommunist’ countries of Central and Eastern Europe.

The article analyzes various systems and models of administrative-territorial division and the corresponding municipal organs. Thus, the ‘five-element’ French model is considered and other versions connected with it-’four-’, ‘three-element’ etc. are also mentioned. The article expounds the forms of the work of these representative organs of local self-government on the main issues with which they deal (the local budget adoption, the executive bodies elections etc.).

An important role in given in the article to the analysis of the municipal bodies’ competence. This competence is divided into the primary and the secondary ones. The primary competence includes main local problems — the secondary education system, building planning, health care, town infrastructure maintenance etc. The secondary competence involves the implementation of the decisions of higher bodies. The total of these competencies determines the real weight and place of these local bodies in the state mechanism of a certain country.

For the clearer presentation of competence a classification of the competencies of local bodies is given. The important question of the funding — the local bodies’ expenditure — is touched upon and the main sources of these funds are indicated.

The article explains the levers the central government has to influence the municipal bodies and the sanctions which this authority can impose on them in the case of conflict or disobedience. The ways of formation of the local executive bodies are also named.

“The Policy of Russia Towards Central and Eastern European Countries: Warsaw Point of View” (Mechislav Chesnovski)

The article follows in detail both Moscow’s attempts repulsed by Warsaw to reestablish its influence on the most significant European decisions through the Central European capitals, and the immediate reaction of the Polish politicians (which is mainly negative and defensive) to the Kremlin’s reintegration-aimed actions. As the background the problems of interdependence of European security and the national development of Russia are discussed. All that regularly stimulates Polish elite’s constant readiness for action against possible moves of Russian policy-makers.

In the Western direction Russia faces not only global, but regional international problems as well. They are: the shift of the geopolitical preferences from East to West in this strategically crucial region of Central and Eastern Europe, and weakening of the economic cooperation with the former partners in Warsaw Treaty Organization. Russia has concurred with the Soviet Empire breakdown. However, this does not mean the consent to incorporation of the former allies into the structures, which are still alien to Russia. In Warsaw’s opinion, the reintegration of the former Soviet sphere of influence is thought by Moscow to be the principal condition of the success of its regional policy. The second condition is the renewal of the structures, that would at least resemble the ones dismissed in the beginning of the 90’s (Warsaw Treaty and Council for Economic Assistance). Due to its own difficulties Moscow is reluctant to declare whole Central and Eastern Europe the sphere of its national interests. Some inconsistent moves in that direction just brought some uneasiness to the region’s capitals and a bit disquieted the West about the situation in this part of Europe.

That is why at the moment Russia is content with the minimum. Outside the CIS borders she is trying to create a belt of friendly states, linked to her economically and ready to take into account her interests regarding the main European issues. Therefore the incorporation of the Central-European countries into NATO and/or EU will, no doubt, find no support from the Kremlin.

The nuclear geopolitical role of Poland among the post-socialist European countries grants this former USSR’s ally Moscow’s special attention. In their turn, after the sharp turn to the West, the Polish foreign policy-makers constantly follow the reaction of the great Eastern neighbor, producing numerous scenarios of the anticipated Russian expansion into Central Europe. Polish foreign policis doctrine states that in any case there is a threat from Russia. In Warsaw’s perception the main goal of the Russian foreign policy is blocking any positive shifts in this region’s relations with the Western structures, that would supposedly be permanent and would bypass Russia.

“The European Union Security and Defence Policy” (Ludmila Khukhlyndina)

The article “The European Union Security and Defence Policy” deals with two European Union’s approaches towards the unified foreign policy and security. The promising areas for collective action are the OSCE process, disarmament and arms control in Europe, non-proliferation of nuclear weapons, control of arms technology transfer to third countries and arms export control.

This qualitatively new approach which is reflected in the Maastricht Treaty concerns a large range of political and military issues which have never been characteristic of the EU before. Now it is the EU which is becoming the centre of decision-making in European foreign policy, whereas the Western European Union (WEU) (as an integral part of EU), which has been inactive, is “to make and to enforce the decisions and measures of the Union in the area of defence” on the one hand, and, on the other, to be a means of consolidating the European pillar of the North Atlantic Alliance. The WEU structures are trusted with the unified security policy and the EU evolution.

Concurrently, the article analyzes various positions regarding the issues of the EU and WEU integration and different versions of the development of a single unified system of European security (Finnish-Swedish, French-German and British approaches).

The results of the EU intergovernmental conference of 1977 and the Amsterdam summit are considered as well. It is stressed that as an outcome of the intergovernmental conference the commanding competence of the European Council has been enhanced. The so-called Petersbourgh objectives of the WEU (humanitarian and rescue actions, peacekeeping and military actions in crisis areas, including peace establishing measures) were inserted into the European Union Treaty as well.

The article concludes that the present attempts to mould a common foreign and security policy demonstrate that for the EU to realize its full influence it should be necessary to pool the analytic expertise resources, to improve the decision-making procedures, to present a common front in the international arena and to consolidate their international action.

“The role of Ethnic-Religious Contradictions in the Bosnian Crisis in the 90s of the XX Century” (Katya Bencheva)

The article “The role of Ethnic-Religious Contradictions in the Bosnian Crisis in the 90s of the XX Century” gives an insight into the issues connected with the role of confessions in the process of shaping national identity in Bosnia and Herzegovina. Religion has been the differentiating factor in the region and played a special role in the Bosnian Moslems growing apart with their acquiring a separate national identity. The article surveys a range of issues involving the definition of the ‘ethnos’ of Bosnian Moslems and ‘Bosnianism’ (Boshnyachestvo). Special attention is paid to the process of emergence of a Moslem nation in Bosnia and Herzegovina, to a number of problems and consequences connected with the recognition of this artificial construct. The article attempts to explain the causes for the conflict which broke out in early 90s of the XX century, exploring the historical development of Bosnia and Herzegovina and the specific ethnic and confessional interrelations in contrast to other Balkan regions. Not only political claims but also striving for national self-identification of the three national communities of Bosnia and Herzegovina underlies the recent crisis in Bosnia.

“The Political Situation on the Chinese Eastern Railway after the Collapse of the Russian Empire” (Nadezhda Ablova)

The article “The Political Situation on the Chinese Eastern Railway after the Collapse of the Russian Empire” presents a historical survey of the events of political life of the Russian colony in Manchuria after the revolutions of 1917. As soon as the news about the collapse of the monarchy reached Harbin on the 4th—17th of March 1917, the organization of the Workers’ and Soldiers’ Deputies Soviets started. A Committee of public organizations acting on behalf of the Provisional Government was set up as well. So a sort it ‘triumvirate’ emerged in the alienation zone of the Chinese Eastern Railway (CER): it was governed simultaneously by General D. L. Khorvat, the Soviet of Workers’ and Soldiers’ Deputies and the Committee of public organizations.

On December 12, 1917 the Harbin Soviet declared itself to be the sole agent of state power. General Khorvat called upon Chinese troops, with whose help the attempt to establish Soviet power on the Chinese Eastern Railway was foiled.

In April 1918 a meeting was convened in Peking to discuss the situation on the CER with the participation of Chinese officials and Russian representatives (Russian envoy N. A. Kudashev, D. L. Khorvat, A. V. Kolchak, A. I. Putilov). A decision was arrived at to form armed units to fight the Red Army. But the implementation of this decision failed: the atamans of the Cossack troops G. I. Semenov and I. P. Kalmykov did not want to subordinate to Admiral A. V. Kolchack.

As fate would have it, there were at once several pretenders to the role of the Saviour of Russia in Harbin at that time — Admiral A. V. Kolchack, ataman G. M. Semyonov, General D. L. Khorvat and others, less important public figures (P. V. Vologodsky, P. Ya. Derber). On July 9, 1918 D. L. Khorvat proclaimed himself the Provisional Supreme Ruler of Russia. True, already in October he transferred his ‘power’ to P. V. Vologodsky (the Provisional Siberian Government). After A. V. Kolchack also proclaimed himself the Supreme Ruler of Russia on November 18, 1918, Khorvat came to represent the Omsk government. As a result of mass strikes of workers and staff of the CER which lasted from the summer of 1919 to the middle of March of 1920. D. L. Khorvat lost whatever power he had at the CER as well: he had to resign as the chairman of the board. Since that time Chinese authorities started to lay their hands on CER. On October 2, 1920 the Transport Minister of China signed an agreement with the Russian-Asian Bank according to which Peking assumed the top control over the Railway, pending the future agreement with a stable Russian government. On September 23, 1920 the President of the Republic of China issued a decree according to which the subjects of the former Russian Empire resident in Manchuria were deprived of the right of exterritoriality. At the same time a Special District of Eastern Provinces was formed which included the CER alienation zone. But the attempts of Peking and Mukden to take the opportunity of the Civil War in Russia and to take the CER under their command encountered serious opposition: the interests of world powers (the USA, Japan, Britain, France etc.) came into collision with Chinese interests over the Railway.

“The Regional-International Aspect of the Kurdish Problem” (Dibo Kava)

The Kurdish problem remains one of the most complicated ones in the Middle East since it simultaneously involves four countries of the region: Turkey, Iran, Iraq and Syria.

Kurds, whose number runs to 30 mln people, comprise the most numerous people on earth, which has no state of its own.

The Kurdish people’s fate is tragic. For over a hundred years and even now, 30 mln people have lived in different countries, where they are traditionally discriminated and persecuted, suffering even genocide. They experience the pressure of the deliberate policy of suppressing national self-identification and are not likely to get an opportunity of self-determination as a sovereign state in the near future.

“Open Economy Models” (Ludmila Petrovskaya, Pavel Shipuk)

The article “Open Economy Models” discusses one of the most topical issues in particular, the open economy models and the development of the stabilization policy on their basis. It shows the significance of the issues under consideration for the states of Eastern Europe and the CIS republics. The latter have opened their economies which requires the realization of the stabilization policy that depends on the level of the states’ pre-reform development, the scale of economic reforms and their consistency.

The article above analyzes the open economy according to the three blocs, representing the capital inflows and outflow, export and import of goods and services and currency circulation. The models of the open economy are studied in their intercorrelation. The article shows the real reflection of existing reality in the relations among the states on macroeconomic level and internal economic policy which is manifested in the rapid growth rate, the absence of inflation and unemployment and levelling of the balance of payments. The open economy can be seen through the interconnection of national markets with the world ones which is expressed in interrelation of markets of goods and services, capital and currencies. The categorial structure of the models of the open economy is elaborated according to them, which is considered to be the scientific innovation of the article.

“Company Longevity” (Ludmila Klimovich)

The article “Company Longevity” considers basic factors which provide the long-standing success of companies on the market. The characteristic features of the firms which have overstepped a centennial border are: a large size, constant changes of competition strategies, quick adaptation to the altering business environment, decisive policy in the sales market, humanization of the company administration system. A company needs some time to achieve the high level of production, it often has to pass through a set of reorganization measures and shifts in competition strategies which provide the long-standing success on the market. There are at least four main types of strategies of companies: commutant, explorant, patient and violent.

The commutant strategy presupposes maximum flexible satisfaction of local market needs and needs of the concrete client. Small firms which keep to these strategies as a rule do not have the up-to-date technologies. However, it does not prevent them from forming their market niche.

The explorant strategy is aimed at the radical innovations and establishment of new markets.

The patient strategy presupposes the production of a limited quantity of very specialized items of high quality of limited demand. This helps firms to avoid direct competition with leading corporations in the industry and to reserve stable position on the market of a certain product for a long time.

The violent strategy counts on reducing the production costs at the expense of mass output of rather cheap and good-quality goods; this allows to retain vast sales markets for a long time. There are three main varieties of firms-violents; they operate in the sphere of large, standard production of goods and services deriving their benefits from the saving on the production volume, large-scale scientific research and developed sales network. A gradual shift of these strategies allows a firm to develop its size from a small patient firm to the largest violent one. The experience of long-standing companies proves that the firms which invest resources in large mass production have the biggest chances to remain on the market. The most important condition of the longevity of a large company lies in the use of efficient sales strategies. The use of module design by “Hewlett-Packard” proves the necessity of combination of standard and differentiated approaches in communication policy.

Besides, large companies have need in organization of an efficient administration structure. A solution of this problem is connected with humanization of the whole management system, i. e. with attention towards individual members of staff, promotion of efficient and motivated managers from the corporation staff, combination of loyalty to traditions and innovations.

The complex use of all factors of successful development of the company allows it to retain stable positions on the market for a long time and to provide its longevity.

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