Belarusian Journal of International Law and International Relations 2000 — N 3


International Law

International Law and Domestic Law

Correlation Between International Treaties and Internal Legislation — Ivan Saleyev

Human Rights

European Human Rights Monitoring Mechanism and Universal Conventional Bodies — Alla Shirmont

Some Aspects of the American Concept of Human and Civic Rights and Liberties: Genesis and Development — Diana Manevskaya

International Criminal Law

Functioning of Permanent International Criminal Court (Investigation, Prosecution, Execution, Legal Aid) — Igor Fisenko

Improvement and Development of International Cooperation in the Fight against Counterfeiting — Suleiman Mukashev

International Organizations

Regulation of Multiple Nationality within the Framework of European International Regional Organisations — Alexey Grigoriev

Documents and Materials

The Special Course Syllabus “Human Rights Law” (only russian)

European Council on Refugees and Exiles’ Position on the Integration of Refugees in Europe (September 1999) (only russian)

International Relations

The Conflict in Kosovo: Consequences and Lessons — Alexandr Sharapo

The Problem of Regional Stability in Central and Eastern Europe at the End of the XX Century — Mechislav Chesnovsky

International Organisations in the System of International Relations — Vladimir Snapkovsky

International Economic Relations

Forms and Methods of Export Stimulation in the Republic of Belarus (on the Basis of World Experience) —  Valentina Migas, Alexandra Nechai

Post-Soviet States Integration: Possibilities and Prospects of Development — Nikolay Shumsky

Unity Problems in the Social Economic Conceptions of Left Democrats in Germany: the Present-day Realities and Prospects — Boris Sorvirov


English Summaries

"Correlation Between International Treaties and Internal Legislation" (Ivan Saleyev)

The author considers the problem of hierarchical relationship between international treaties and normative (regulation) acts of different levels in force on the territory of Belarus. This problem is of relevant importance because the legislation of the republic regulating this relationship is imperfect and contradictory and allows of various interpretations.

The Constitution of Belarus does not contain any direct indication on the place of international treaties within the system of normative instruments of the republic. The norm can be found there, on the basis of which the Constitutional Court determines the conformity of the internal legislation of Belarus with the international legal instruments ratified by the Republic of Belarus. However, according to the author, this only shows the existence of two hierarchies of normative instruments in the country — one designed for the Constitutional Court (providing the precedence of the ratified international treaties over internal legislation) and the other for all other bodies and officials of the state (no precedence).

Literal interpretation of the norms of some legislation in Belarus may lead to believe that international instruments rank equal to laws, edicts or decrees and do not carry absolute precedence over internal legislation norms. In case of conflict between normative legal acts of equal legal force, the provisions of the act adopted last are in effect. This interpretation logically presupposes that sometimes precedence can be given to a law, an edict or a decree absolutely, even if the relevant document had been signed before the international treaty came into force.

Some laws of the republic contain indications on the precedence of international law norms over the corresponding norms of the legislation of the republic in some branches of law. It is evident, however, that the precedence of international law in these branches exists merely till another new normative instrument of greater legal force is adopted.

The author notes that the legislation of the Russian Federation has taken a different route. Absolute precedence of international law norms is recognized in Russia.

The author goes on to consider the correlation of laws, edicts and decrees. The Supreme Economic Court of the Republic determined that in case of conflict of decrees (edicts) and laws, decrees and edicts have precedence over laws. The author believes this to contradict the recognized norms of law, the system of separation of powers and the legislation currently in force in the republic and substantiates his point of view by arguments.

Summing up, the author comes to the conclusion about the necessity to perfect the legislation of the Republic of Belarus; he believes it necessary to give a clear definition of the hierarchical correlation of the legislative acts of the republic and points out the substantial difference between the legal norms of the Republic of Belarus and the Russian Federation on the issue of determination of the legal force of an international  treaty as a source of law.

"European Human Rights Monitoring Mechanism and Universal Conventional Bodies" (Alla Shirmont)

Protection of human rights is one of the main objectives not only of states but also of the international community as a whole. International and regional organizations have done much to embody human rights and freedoms in international agreements and conventions and to develop monitoring mechanisms of their observance.

The article reviews the control bodies established by universal international agreements on human rights, including the Commission on Human Rights, Commission against Torture, their authority, efficiency and drawbacks in their activities. The article also studies the European monitoring mechanism.

The author attempts to prove that only a judicial body authorized to consider individual complaints and state complaints and entitled to binding final decisions may become a valid mechanism of protection of human rights.

The author believes that the monitoring mechanism created on the basis of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms is the most efficient system in the sphere of protection of human rights, compared with other procedures in the given sphere provided by universal international agreements.

The binding nature of the decisions passed is the necessary aspect of any monitoring mechanism in the human rights sphere, still inaccessible to any of the existing mechanisms. It gives the European procedure the necessary features of a true International Judicial Body. Large practical experience of consideration of claims by the European Court on Human Rights proves its efficiency. There are no attempts to duplicate the work of the European Court and the Committee against Torture founded by the 1987 European Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. The Commission against Torture is a non-judicial mechanism of preventive nature contributing to the collaboration of member-states of the Council of Europe in the sphere of protection of human rights. The jurisprudence of the European Court on Human Rights influenced positively the legal and socio-political systems of the Council of Europe member-states.

"Some Aspects of the American Concept of Human and Civic Rights and Liberties: Genesis and Development" (Diana Manevskaya)

The author makes an attempt in this article to outline the main provisions of American concept of civic rights and liberties and reveal their specific features in regard to the constitutional system of the USA. The article also shows the importance of the First Amendment to the Constitution of the USA of 1787 in the dynamic development in the civic society and building of democracy in the USA.

The article reviews various points of view on the concept of civic rights and liberties according to the American concept and the point of closest to the view of the author is singled out.

The article traces the history of how the American conception of civic rights and liberties was formed, its historical and ideological sources, a kind of foundation to serve as a basis for creating such important constitutional legal instruments as the US Constitution of 1787 and the Bill of Rights of 1791.

The First Amendment to the US Constitution is analysed as the main norm fixing such fundamental civic rights and liberties as the freedom of speech, freedom of the press and freedom of belief.

The article also emphasizes the importance of court rulings in interpretation and extended perception of civic rights and liberties in American society.

These topics are very relevant because, unfortunately, Soviet science used to treat the American concept of civic rights and freedoms as well as the whole constitutional system of the US rather negatively. The time has come to review many aspects in history and jurisprudence and this article attempts to contribute to a new understanding of American constitutional values by society.

"Functioning of Permanent International Criminal Court (Investigation, Prosecution, Execution, Legal Aid)" (Igor Fisenko)

The providing of realization of investigation and prosecution functions in the international criminal process is greatly important for the International Criminal Court.

The existence of a certain function requires its organisation. Organisation of investigation and prosecution within the activities of the court itself can be regarded as the most suitable variant for the International Criminal Court thatexists as a body with jurisdiction parallel to national courts. This institution is established to cooperate closely with national investigation bodies who send there the greater part of the information and data. Simultaneously, international investigations should cooperate with national bodies during their activities in the investigation area.

This is the conceptual investigation and prosecution mechanism within the framework of the International Criminal Court.

The author also studies the realization of the Court verdicts and the mechanism of legal assistance provided by the national bodies to the Court. The author believes that in case of verdicts for international crime their execution on the international level should also be introduced. Therefore the establishment of the international penitentiary centre is required. As a much cheaper alternative, the author suggests the criminals serving their sentence in the penitentiary bodies of the states that are prepared to receive them.

Mutual legal aid among the states is needed during the court examination of a case with international issues involved. It is even more significant in case of establishment of the international legal body called upon to examine complex cases. The fundamental supplementary principle that is basic for the International Criminal Court presupposes close cooperation of the Court and national legal instruments. This aid could actually be called unilateral, since the major flow of the information goes from national bodies to the court and involves as a minimum the establishment of the current living place, making depositions, collection of material evidence, service of summons and execution of other legal procedures.

The author concludes that the Statute envisages the whole system of bodies and institutions aimed to provide the functioning of the International Criminal Court. They are determined by the Court’s nature as a supplementary body to similar national institutions of this kind. At the same time, the concept of the International Criminal Court carries a great impulse for its further development that may lead to the development of the supplementary bodies of the court.

"Improvement and Development of International Cooperation in the Fight against Counterfeiting" (Suleiman Mukashev)

The article reviews same topical issues of international legal regulation of the states’ cooperation in the fight against counterfeiting. It analyses the most important international legal acts on this problem and also the corresponding Belarusian legislative acts.

The author focusses on the possibility of the Republic of Belarus joining the 1929 Geneva Convention on fight against counterfeiting.

The article also contains suggestions on improvement of the legislation of the Republic of Belarus on counterfeiting issues aimed, at its complete conforming with international obligations of our country.

The author states that the Interpol National Central Office in the Republic of Belarus should be afforded a higher status.

"Regulation of Multiple Nationality within the Framework of European International Regional Organisations" (Alexey Grigoriev)

The present paper considers some issues of regulating of a quite complex legal institution, that of multiple nationality.

Currently, European integration in general and the phenomenon of multiple nationality in particular are arousing a lot of interest. This is caused to a large extent by both the relative stability of economic and political guarantees of rights and liberties of the citizens of Western Europe and by the search of Eastern European countries for their place and their road in the united Europe, by the necessity to overcome cultural and economic disunity of European states and also by the unabated interest in the structural elements of diverse and variously speeded integration in this region.

In this regard the institution of multiple nationality stands out against the background of all-European integration. It has been in existence in this region for many millenia and embraces practically all states of the continent. Multiplenationality creates at the same time both real possibilities and prerequisites for integration and real problems, causing sometimes protracted conflicts between states and peoples and separating their political interests.

The author sees multiple nationality to be a complex legal state expressed through a complicated legal relationship, which lends form to a multistructured social political, economic, cultural and moral relationship between states (representations of citizenship/nationality) and the person as regards responsible possession by a person of the complete or the basic set of rights and duties of nationality equal to the persons of his/her category of nationality in more than one state formation.

With this assumption the paper shows in general terms the causes for the emergence of multiple nationality and the ways of settling its problems. The citizenship of the European Union, which the author refers to a kind of multiple nationality, is a particular legal institution which could serve as a source for forming all-European and global citizenship.

Alongside with the study of the citizenship of the European Union the paper considers the institution of multiple nationality within the framework of the Council of Europe. The European region has accumulated abundant experience of regulating multiple nationality; part of which experience was embodied in the provisions of various international treaties concluded by the member-states of the Council of Europe. It would be effective to use in the countries of Eastern Europe and Asia.

The European Convention on Nationality from November 6, 1997 was a progressive step in the realm of developing nationality and multiple nationality, though it has a number of drawbacks and as a whole does not adequately take into consideration the existing needs in this sphere. A number of norms, for instance, the right of the state to terminate citizenship, declared in article 7 and other provisions of the Convention have not been specified. The drawbacks of legal regulation of these issues and the issues of state succession and nationality (article 16) arouse doubts in the compliance of provisions of the abovementioned convention with the requirements of articles 15 and 29 of the Universal Declaration on Human Rights. Unfortunately, the European Convention on Nationality is trying to unite disparate points of view into one, there arising as a result some apprehension as to the possibility of its arbitrary application.

The citizenship, being established within the framework of integration of the Republic of Belarus and the Russian Federation, is also a peculiar institution which could be transformed into a different type of citizenship.

The author considers that reasonable application of the institution of multiple nationality could facilitate the solution of a number of problems of contemporary international law, including the problems of international cooperation, human rights protection and development of integrational process. This experience could be promoted by all states and especially the former USSR countries who have various directions of solving the issues of multiple nationality.

"The Conflict in Kosovo: Consequences and Lessons" (Alexandr Sharapo)

The article is devoted to the issues connected with the current situation in south-eastern Europe as the result of the military action of NATO against Yugoslavia.

The article analyses the changes, which have taken place in this region after the aggression and, shows that the goals proclaimed by the USA and NATO have not been reached (the decline of the Yugoslavian economy, the existence of numerous refugees, exacerbation of the relation between various ethnic groups in Yugoslavia). And as a result of the military aggression there was an aggravation of the general situation not only in this country, but in the whole south-eastern European region.

The author proves the fact that it were the USA and NATO, that organized and carried out the aggression with the purpose of reaching their own goals-preservation of their influence in south-eastern Europe and prevention of accomplishing the same goals by Russia and other countries.

The article pesents various views on the Yugoslavian problem from the point of view of American-European relations, of the role of Russia and Belarus and the importance of their steps towards the resolution of the Yugoslavian problem; it analyses the short- and medium-term plans of the USA and the EU in this region and underlines that they pursue only their own objectives, without taking into consideration the opinions of other participants of international relations. The forms of the resolution of the Yugoslavian problem show that the main principles of the new NATO military conception are based on the non-acknowledgement of the basic articles of international law connected with the sovereignty and non-interference.

"The Problem of Regional Stability in Central and Eastern Europe at the End of the XX Century" (Mechislav Chesnovsky)

As a result of dismantling of the Socialist bloc structures in the early 90s of the XX century there emerged new states, with uncertain political and power orientation and the foreign policy which is difficult to predict. Subsequent state and territorial transformations in the Central and Eastern European region have not provided geopolitical stability and in fact have become the beginning at a still greater transformation. This, in its turn, was fraught with danger to the maintenance of stability in the region.

History is a witness to the lack of stability being an inherent feature of Europe. The main reasons for that persist unchanged: they are the difficulty to find a place for the united Germany in the common structure of Europe and the difficulty to fit into the international order those new states which emerged as a result of the former empires disintegration and to settle finally the issue of their borders. By virtue of the secircum stances the main sites of European stability still remain on the geopolitical axis extended from the western to the eastern end of the region, which involves primarily the bilateral and multilateral relations between Germany, Poland, Belarus, Ukraine and Russia and also the European and Euroatlantic influence on these relations. The northern and southern vectors, are not regarded as decisive, just like it was in the past with a few exceptions.

The nature of the geopolitical stance of every state mentioned affected the security of the whole region. The behaviour of the main agents of the regional process determined the resumption of some of the traditional confrontation stereotypes. A new demarcation line began to be delineated, which threatens to divide both the region and the whole continent. The NATO expansion to the east merely exacerbated this process. It turned out that the hegemonist ideas have been completely abandoned neither in Germany, nor in Russia. At the same time awareness is growing in the general public opinion in the region that it is necessary to use the opportunity provided by history to build the relations of mutual trust here. Implementing this will play the role of stabilizer in this region of Europe.

"International Organisations in the System of International Relations" (Vladimir Snapkovsky)

The article considers theoretical issues of current international relations development. The basis of the study is made up by the recent publications of Western authors. Main attention is given to the study of the role and place of international organizations in the system of international relations. The relations between the main agents of world politics — national states and international organizations — are investigated. The author analyses the evolution of international organizations in the XIX—XX centuries in the political (peace and development issues) and the non-political (social and economic cooperation) realms. The article gives a general evaluation of the activities of the European Concert, the League of Nations and the United Nations Organisation and presents the distinctive features of the contemporary international system as it has come into being after the end of the Cold War. The article also notes the transnational character of this system. The multilateral diplomacy, its role and place are explored and its differences in comparison with bilateral diplomacy are noted. Shortcomings in the activity of international organizations are analysed, primarily those of the UN, and the ways of raising their efficiency are suggested. The author comes to the conclusion of the rising importance of international organizations in the international system.

"Forms and Methods of Export Stimulation in the Republic of Belarus (on the Basis of World Experience)" (Valentina Migas, Alexandra Nechai)

The article is devoted to the analysis of world experience, mainly that of South-East Asia regarding transition from import substitution to export oriented model. The article analyses forms and methods of export stimulation in the Republic of Belarus on the basis of world experience.

A closer estimation of positive and negative consequences in the methods of export incentives allows to choose those which are more effective and less painful for the transitional economy and do not undermine the fundamentals of market economy and are less connected with subjective factors.

For example, giving large export subsidies often used instead of devaluation or in order to compensate the protectionism consequences turned out to be inefficient. Granting significant subsidies and privileges provoked the growth of abuse during the procedure. The measures providing special conditions for exporters including subsidies, introduction of lower currency rate may generate the problems of inefficient resources distribution which is extremely dangerous for post-socialist countries.

The article makes conclusions and some recommendations on the directions of international trade regulation in the Republic of Belarus. The authors underline that one of the major issues in export growth is the increase of competitiveness of the goods produced in Belarus owning to their quality improvement that is connected with production modernization and introduction of new high technologies.

"Post-Soviet States Integration: Possibilities and Prospects of Development" (Nikolay Shumsky)

The integration processes on the post-Soviet territory are complex and contradictory. The necessity and readiness to promote cooperation in various spheres and activities are declared within the framework of the CIS, hundreds of agreements are signed but practical results are much less impressive.

The article considers the specific peculiarities determining to a large extent the process of integration of the post-Soviet states: the system socio-economic crisis in the conditions of emergence of state sovereignty and public life democratisation, transition to the open market economy, transformation of socio-economic relations, substantial differences in the level of industrial development of the states and ties with just one state — Russia — dominating on the post-Soviet territory; the existence of more attractive magnet centres; unresolved inter-state and ethnic conflicts.

The article stresses the importance and the necessity of the CIS and points out the factors facilitating integrational process on the post-Soviet territory.

West European Integration experience is very instructive for the CIS countries. The article reviews the fundamental differences in the conditions of integration of the countries of Western Europe and the post-Soviet states and singles out the most important aspects of West European integration which have contributed to its success.

Proceeding from the analysis and assessment of the possibility to use the European Union’s experience for the CIS, the article substantiates the principles and main directions of the development of the post-Soviet states intergration:

integration of states is not an aim in itself but a possibility to pool their efforts in solving social and economic problems;

the main driving force of the integration processes in the CIS can only be a mutually profitable economic cooperation;

gradual integration stage-by-stage;

developing the "different speed" integration;

focussing of the strategy and priorities of the CIS development;

possibility for the CIS bodies to acquire a supranational mandate;

raising the role and authority of the CIS Arbitration Court;

rendering assistance to industries cooperation bodies;

information provision of the public support of the CIS activities.

The prospects of integrational interaction of the post-Soviet states within the CIS framework are discussed.

"Unity Problems in the Social Economic Conceptions of Left Democrats in Germany: the Present-day Realities and Prospects" (Boris Sorvirov)

The article is devoted to the analysis of the processes of the left democratic movement consolidation in the search for an alternative of the development of modern society of the FRG at the turn of the XXI century. In the situation when the foundations of world outlook conceptions, which had seemed immovable, have been shaken, the necessity of grounding new doctrines to allow to comprehend new realities, which have emerged, and to determine further ways for the development of society is becoming increasingly obvious. This process involves diverse standards of public thinking, including all democratic left forces.

The left democratic movement in Germany is a fairly complex social political and ideological phenomenon. The recent victory of the left at the parliamentary elections to the Bundestag, the shifts that have taken place in the democratic movement and the expansion of its base contribute to a greater animation in the discussion of their role in Europe and in the FRG in particular.

However, the implementation of the tasks of society democratisation and the very prospects of the left movement development depend to a great extent on their unity and collaboration, on their joint actions for their common ideals and interests.

The article analyses different points of view on the consolidation of the left, their conceptual views on society democratisation and overcoming negative trends in social economic development of the state. Though not always consistent in representing general human ideals and interests, the left strive, as witnessed by the facts, to give creative interpretation to new trends and phenomena in the contemporary reality of Germany, Europe and the world in general and, taking them into consideration, to adjust their strategy and tactics and to establish the common ground and common politics.

The attitude to Marxism and the view on socialism are the two most serious contradictions in the left democratic movement. But here, too, the ways of overcoming disagreement have emerged recently. The old discussions on these points are becoming immaterial and shift into the realm of historical reminiscences. The search for a new paradigm of human development and a new strategy for the left as a whole is coming to the fore. But the movement toward unity does not cancel the historical individuality of every left movement in the FRG. Starting from their separate positions they are moving in one direction, changing with the times.

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