Belarusian Journal of International Law and International Relations 2001 — N 3


International Law

Human Rights

Mechanisms of the Rights of the Child Protection — Oleg Starovoitov

Some Problems of the Protection Institute in Court Proceedings of the Sovereign Kazakhstan — Sergey Zhalybin

International Humanitarian Law

Organizational Legal Means of Ensuring Realization of Cultural Heritage Protection Norms During a Military Conflict in the International Implementation Mechanism of International Humanitarian Law — Vitaly Kalugin

International Organizations

The Evolution of the Consultative Status of the International Non-Governmental Organizations under the UN ECOSOC — Ekaterina Kuznetsova

International Criminal Law

Towards Raising the UN Role in Combatting Transnational Crime and its Organised Structures — Vladimir Merkushin

Comparative Law

Evolution of the Interpretation of the ’Customs Policy‘ Term in the Legislation of the Republic of Belarus — Alexandr Petrov

The Crisis of Parties Identity and other Peculiarities of the US Modern Party System — Kseniya Getman

Comparative Analysis of Private Security Guard Business Legal Regulation in France, Russia and Belarus — Vladimir Generalov, Sergey Goruliov

International Private Law

The Possibility of Choice of Non-National Law: Lex Mercatoria — Maxim Panasenko

International Relations

Some Geopolitical Aspects of the Theory of International Relations — Alexandr Chelyadinsky

Human Rights and International Policy — Yulianna Malevich

Belarus—Russia Military Relations: from Neutrality to Collective Security — Irina Pimoshenko

Women and Children-Refugees in Armed Conflicts — Elena Shakuro

The Problem of the Refugee Repatriation and Opening of the Polish Consulate in Minsk (1921—1924) — Valery Tsynkevich

Foreign Policy of the II Rzech Pospolita in 1932—1939 (Review of Polish Historical Scientific Literature of 1980—1990) — Ludmila Drojja

On Kazakhstan’s Nuclear Status in the Beginning of the 1990s — Vitaly Voronovich

International Economic Relations

The Tourist Complex in the Countries of Central and Eastern Europe under Reforms — Leonid Gaidukevich


English Summaries

"Mechanisms of the Rights of the Child Protection" (Oleg Starovoitov)

The article analyzes the existing mechanisms of the protection of the rights of the child both at the international and national level.

Most of the existing international monitoring bodies and procedures on human rights, operating within the mandate of the UN and its specialized bodies, are applicable in the case of the rights of the child as well. In accordance with their legal nature they are divided into non-treaty monitoring mechanisms set up on the basis of the UN Charter and convention monitoring bodies envisaged by the provisions of the international conventions on human rights.

The first group embraces the main UN bodies (the General Assembly, the Security Council and ECOSOC being the lead authorities on the monitoring of the rights of the child protection), functional commissions of the ECOSOC (the Commission on the Rights of the Child and the Commission on the Status of Women) and the subcommissions established by these commissions (the Subcommission on Promoting and Protecting Human Rights) as well as topical and special procedures on investigations of the breaches of human rights and the procedure on investigating the breaches of human rights in separate countries (e. g. a Special Rapporteur on the Rights of the Child to Education, the Working Group on Forced Labour, a Special Rapporteur on Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia).

The second group is represented by the following agencies: the Human Rights Committee, the Committee on the Elimination of the Discrimination of Women, the Committee against Torture, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. The main difference between these two groups lies in their competence: the competence (mandate) of the convention bodies extends only to the States Parties to the appropriate international convention, whereas the non-treaty monitoring mechanisms are applied in all UN member states irrespective of their being parties to the conventions in question.

Special international mechanisms on the protection of the rights of the child include the Committee on the Rights of the Child, a Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography and a Special Representative of the Secretary-General for Children in Conflict.

At the national level a number of countries have recently established the institution of ombudsmen or commissioners on the rights of the child. The first country to introduce the office of an ombudsman on the Rights of the Child was Norway in 1981. Now such offices are in operation in over 20 countries. Most of these offices are in Western Europe (Germany, Denmark, Belgium, Austria, Norway, Finland, Sweden, Iceland, Luxemburg, Spain). Such institutions have also been created in Latin America (Guatemala, Columbia, Costa-Rica, Peru), Israel and New Zealand.

1996 witnessed the establishing by the presidential decree of the National Commission on the Rights of the Child in Belarus. The objectives of the Commission are: 1) implementing of the state policy pertaining to children in the Republic; 2) monitoring compliance with the Convention and Belarusian legislation on the rights of the child; 3) coordinating the activities of state bodies and NGOs on protecting the rights and interests of children; 4) developing the children support programmes and submitting them in due form to the President and the government; 5) approving national reports of the children’s rights issues which are to be submitted to the UN Commission on the Rights of the Child for consideration; 6) coordinating development and approval of legislation and other normative acts on the issues of protecting the rights and interests of children; 7) running events and activities to support children in distress; 8) informing children, their parents and the public on compliance with the UN Convention on the Rights of the Child, with the law "On the Rights of the Child" and other normative acts; providing for the study of this legislation in educational establishments. At present the necessity of establishing the office of the ombudsman on the rights of the child in Belarus is being discussed.

As the article points out, there is a sufficient number of procedures and mechanisms at the international level which pertain, directly of indirectly, to the protection of the rights of children. Despite the fact that there are many such bodies, or precisely due to it, there are certain difficulties in ensuring effective protection of the rights of children. Most of them are hardly ever used for protecting the rights of children, often due to the fact that human rights agencies, individuals and even state bodies find it difficult to distinguish between their many functions and application of the appropriate mechanisms to a specific violation of the right of a particular child (and this concerns the cases when they are aware of the existence of these bodies). Besides, these bodies often duplicate their activities and functions on certain matters and lack coordination in others (which is especially typical of convention control mechanisms).

That is why it is desirable to bring children’s rights implementation measures into accordance with the existing standards in human rights protection through the incorporation of individual complaints consideration into the Convention on the Rights of the Child structure. It can be done by developing and approving a Protocol additional to the Convention, which would fix this function for the Committee on the Rights of the Child. This suggestion is argued for by the recent adoption of the protocol additional to the Convention on Elimination of Discrimination against women which allows individuals to submit complaints to the appropriate Committee. The right to individual complaints is fixed in the African Charter on the Rights and Welfare of the Child which recognizes that the Committee will accept complaints from individuals, groups of individuals and NGOs claming violations of the rights envisaged by the Charter (Art. 44(1)). Work is currently underway to develop a protocol additional to the International Covenant on Economic, Social and Cultural Rights.

It would be expedient to envision also the establishment of a special non-treaty body which would prevent violations and protect the rights of children irrespective of the state’s participation in the international agreement in question. Suggestions are put forward at present about the creation of a non-treaty ombudsman position both within the UN framework and outside it. But there seems to be a more acceptable variant to create within the UN an office of the High Commissioner on the Rights of the Child in analogy with the Office of the UN High Commissioner for Refugees which has shown itself to be very effective. One of the main objectives of such an agency would be early and speedy response to children’s rights violations and reporting them to the UN bodies before these violations can spread.

"Some Problems of the Protection Institute in Court Proceedings of the Sovereign Kazakhstan" (Sergey Zhalybin)

In this work the author analyzes the professional advocate’s participation in criminal proceedings, and suggests ways and methods of improving advocacy.

The article above allows to comprehend the problems connected with the most important part of a society’s life — human rights and freedoms.

The author concludes that the advocacy is the main institute protecting human rights by virtue of its conceptual structure. Thus, the more perfect and competent in law the advocacy is, the higher is the level of legal constitutional culture of the society at large.

"Organizational Legal Means of Ensuring Realization of Cultural Heritage Protection Norms During a Military Conflict in the International Implementation Mechanism of International Humanitarian Law" (Vitaly Kalugin)

The article is devoted to examination of the legal content of the means of ensuring realization of international humanitarian law norms regulating cultural heritage protection during a military conflict. The necessity of the examination has become topical since the recent changes in international legal regulation of cultural heritage protection: the adoption of Protocol II to the 1954 Hague Convention on cultural heritage protection during a military conflict.

The author reveals the genesis of international legal regulation of issues dealing with realization of a complex of norms providing cultural heritage protection at the international level during a military conflict. The provisions of Executive Regulations as an integral part of the given international treaty laid for a long time in the basis of ensuring the realization norms of the 1954 Hague convention. When characterizing international control envisaged by the Executive Regulations as organizational legal means, Yu. V. Kalugin notes that it has a three-tier system complex consisting of a Special Rapporteur on cultural heritage (special representative) of the state-participant in the military conflict, the Patron state and the General Commissioner on cultural heritage.

International law development based on the willingness to strengthen cultural heritage protection has led to the elaboration of new means of the issue solution. The author refers the following to such complementary means of international implementation mechanism:

— Organization of international monitoring in accordance with the Executive Regulations to the 1954 Hague Convention on cultural heritage protection during a military conflict;

— Institutional mechanism defined in Chapter 6 of Protocol II (dated 26.3.1999) to the 1954 Hague Convention on cultural heritage protection during a military conflict;

— Joint actions, through the Committee mediatorship or individually, in coordination with the UN and UNESCO and in accordance with the UN Charter.

The article underlines that the international implementation mechanism of the international humanitarian law norms also envisages the means aimed to provide realization of international legal norms on cultural heritage protection alongside with organizational legal means of providing realization of the 1949 Geneva Convention and 1977 Additional Protocol I. The international community continues to perfect the mechanism framework during the codification process and progressive development of this branch of international law. The recent alterations of the international legal regulation on cultural heritage show that an active search is underway of the most effective approaches called upon to provide for international commitments on limitation of tragic consequences of military conflicts and preservation of cultural and historical heritage of mankind.

"The Evolution of the Consultative Status of the International Non-Governmental Organizations under the UN ECOSOC" (Ekaterina Kuznetsova)

The article is devoted to the review of the evolution of the consultative relations between the United Nations and International Non-Governmental Organizations (NGOs). The importance of the partnership between the UN and NGOs is self-evident. The recent mushrooming of the number of NGOs leads to questioning of the adequacy of the arrangements establishing the consultative status created in 1945.

The article first lists and discusses main criteria for the organization to be recognized as NGO. Then it proceeds with the description of the elaboration, formal establishment and substance of the consultative arrangements regime under the Charter’s Article 71 and consecutive ECOSOC Resolutions including ECOSOC Resolution 1296 (XLIV). The second part of the article looks at the activities of the ECOSOC Working Group on NGOs that had led to the reform of 1996, shaped by the ECOSOC Resolution 1996/31.

"Towards Raising the UN Role in Combatting Transnational Crime and its Organised Structures" (Vladimir Merkushin)

The article is devoted to the UN activities in preventing and combatting transnational organised crime.

The author considers functioning of the system of specialized agencies and institutions of the UN which develop the strategies for combatting transnational crime (ECOSOC, the Commission on Crime Prevention and Criminal Justice, UN Congress on the Prevention of Crime and the Treatment of Offenders and so on).

Norm and standard developing activities in the fight against crime are studied and assessed.

Most detailed attention is given to the analysis of the Convention adopted by the UN General Assembly — Convention to Combat Transnational Crime, the smuggling of the Illegal Migrants and Illicit Traffic in People (Women and Children). The interest for the convention is caused by the fact that it has concentrated and summarized the experience of states and international legal instruments in fostering joint efforts in preventing and combatting organized crime.

Despite the fact that the Convention contains some issues that have not been completely regulated, it fixes and specifies for each member-state such legislative and other measures which can be applied to recognize as criminal the acts specified under the convention when they are committed directly or indirectly as a part of a criminal group.

While evaluating the role of the UN in developing strategies and coordinating the fight with organized crime on the whole, it is should be noted that the measures taken by this organization exert significant influence on developing and fostering international cooperation in preventing organised crime actions, promote consolidation of the international community and establishing lasting links between the criminal justice systems of practically all states in combatting this global social phenomenon.

To be still more effective in combatting transnational organised crime, the UN activities and the measures proposed by it, besides being universal and globally valid, ought to be practically applicable, especially in implementation into national legislations, further development and promoting cooperation among criminal justice bodies.

"Evolution of the Interpretation of the ’Customs Policy‘ Term in the Legislation of the Republic of Belarus" (Alexandr Petrov)

Customs policy and customs affairs in general are basic features of a state’s sovereignty. Legislative and executive powers pay special attention to this during elaboration of international legal position and solution of internal problems of the state.

On consideration of the interpretation and use of the "customs policy" term in the normative acts of Belarus, Russia, Ukraine, the CIS and EU adopted in the last decade, the author draws conclusion about the evolution of its interpretation by legislators. The author reviews the opinions of academics and practitioners on the content of the "customs policy" term and the application of customs policy instruments in the customs regulations sphere.

The author believes that it is advisable to take into account national and international experience at the interpretation of the "customs policy" term during the preparation of the new monitoring of the Belarusian customs code, which would contribute to its practical orientation.

"The Crisis of Parties Identity and other Peculiarities of the US Modern Party System" (Kseniya Getman)

The article considers the characteristic peculiarities of the modern party system of the United States. Namely, the crisis of the party identity, moderation and center-oriented programs of the Republican and Democratic parties, the change of traditional electorate of two major parties, the system of separated branches of government.

Having undertaken the comparative analysis of the platforms of the Republican and Democratic parties 2000, the author makes a conclusion that the strengthening of the center-oriented positions of both parties as well as flexibility and well-adaptability of party machines to the modern conditions are the main tendencies nowadays.

The article examines the influence of the constitutional mechanisms on the weakness of the party system of the United States (federalism, particularities of the electoral system, the legal status of the congressmen etc.) The problems of responsibility and accountability of the government in the system of separated powers are also analyzed.

In the point of view of the author, the reasons for the American political parties losing their identity are, first of all, the necessity to strengthen their positions through appealing to the wide categories of people as well as the enlargement of its electoral base.

"Comparative Analysis of Private Security Guard Business Legal Regulation in France, Russia and Belarus" (Vladimir Generalov, Sergey Goruliov)

The article analyzes some aspects of legal regulation of the private security guard business in France, Russia and Belarus. Besides social economic factors the differences of the principle in private security guard business laws of the three states are caused by different approaches to legal regulation of the relations connected with weapons circulation in these states.

The impending bill "On security guard business in the Republic of Belarus" envisages the possibility of private security guard business only as a security service of juridicial persons having right to use special equipment (including gas weapons) and designed to protect the property and staff of these juridicial persons. Contract service on safeguarding of objects, individuals and public order may become the exclusive right of the special state bodies (for e. g. "the security guard association" at the Ministry of Internal Affairs of Belarus) that have fire-arms in service.

"The Possibility of Choice of Non-National Law: Lex Mercatoria" (Maxim Panasenko)

In recent decades modern foreign law doctrine and practice of commercial arbitration increasingly attach more importance to the instruments developed by international NGOs. A significant number of such instruments has been developed in international trade resulting in non-national trade law concepts: lex mercatoria. These concepts substantiate the necessity of regulation of international economic relations not only by international and national law norms but also by the rules fixed and recognized by the direct participants of the relations.

Nowadays lex mercatoria concepts are widely spread and thoroughly developed in foreign science, with this law being often attached an important role to in dispute settlement in international commerce. Nevertheless, it cannot be definitely stated that lex mercatoria is a generally accepted legal system. Academic work is underway in identifying the character of this law. At the same time, issues that are connected with lex mercatoria use are gradually settled within international instruments and commercial arbitration.

The author tries to trace motivation of the lex mercatoria supporters and opponents and clear up to what extent national legal systems recognize the right of the parties to the international economic relations to use lex mercatoria as a manifestation of the party autonomy and how this opinion influences the position of international commercial arbitration.

"Some Geopolitical Aspects of the Theory of International Relations" (Alexandr Chelyadinsky)

The article attempts to determine the correlation of geopolitics and international relations in modern world, to reveal the main interests of states in the realm of foreign policy through geopolitical fields and points. The fundamental forms of monitoring are analyzed here at the example some particular cases.

"Human Rights and International Policy" (Yulianna Malevich)

The article broaches a question of interaction of human rights and international policy, reveals to what extent the international human rights can be considered as the source of legality for any state, discusses the ethics of the government interests to abide by equal criteria of human rights in international and domestic activities. The article also studies the role of the International Court in the interrelation of the state with individuals and between different states. The article touches upon the issues of humanitarian intervention and its role in settling international disputes and conflicts. It pays special attention to the analysis of the right to self-determination in modern conditions and the role of the UN Security Council in providing it.

"Belarus—Russia Military Relations: from Neutrality to Collective Security" (Irina Pimoshenko)

Belarus-Russia military relations have long been the subject of debate and even controversy, yet the history surrounding their military establishments immediately following the collapse of the USSR has been nebulous at best. In an attempt to assess early post-Soviet Belarus—Russia military relations, the author examines the trials and tribulations of the Shushkevich administration’s endeavour at maintaining military neutrality despite mounting pressure from the Belarusian military-industrial complex, its nascent Armed Forces and Moscow.

"Women and Children-Refugees in Armed Conflicts" (Elena Shakuro)

The article explores one of most important problem areas of the Beijing Platform of Actions which concerns the influence of armed and other types of conflicts on the situation of women, including those who stay under foreign occupation, women-refugees and forced migrants. It is specially pointed out that the achievement of peace is strongly connected with the ensuring of equality between men and women and that the aggression, foreign occupation, ethnic and other conflicts are today’s reality that affects men and women practically in every region.

Systematic ignoring of international humanitarian law per se can be sometimes observed, the law which forbids attacking civilians. Frequent violations of human rights take place during armed conflicts which affects civilians, especially women, children, old people and the disabled.

The article indicates that though whole communities suffer from terrorism, women and girls experience the consequences most strongly because of their social position and sex.

The research of the UN High Commissioner for Refugees is also discussed in the given article. The research was carried out in 1992 in Croatia in the group of 5825 kids at the ages between 6 and 15, among whom there were children from areas which were not strongly affected by the crisis, children who were witnesses of cruel combat action, displaced children and children-refugees. According to the information by the UNHCR, on average displaced children and children-refugees were more often than others in traumatic situations even more so than the children who live in the areas of increased risks. Displaced children and children-refugees more often experienced the state of emotional distress and every fourth child among the displaced children and every third among the children-refugees belong to the group of children suffering from deep emotional stress.

The article also noted that the number of victims among the civilian population, mostly women and children, exceeds the losses among the combatants. Though the severe treatment of women and girls may take different forms, the combatants very often rape women with impunity. Fear of these and other violations of women’s rights causes mass flows of refugees and other displaced persons who need international protection and also persons who are internally displaced within the country, mostly women, teenage-girls and children who are the objects of violence and exploitation while they leave, in the refugee centers, the countries of settlement and during the repatriation and after it.

The article names as a serious obstacle for the prevention of armed conflicts and, as a consequence, the appearance of refugees and forced migrants the lack of women in all stages of decision-making about peacemaking and peacekeeping, the reconciliation of the sides after the conflict and the reconstruction of devastation. The character of the conflicts in which as a rule civilian population suffers is changing. Wide access to the weapons made easier by their spreading aggravates armed conflicts.

Some countries adopted directions on protection of women refugees and approved laws that preclude gender persecution. They became the basis for the definition of the status of refugee.

"The Problem of the Refugee Repatriation and Opening of the Polish Consulate in Minsk (1921—1924)" (Valery Tsynkevich)

One of the results of the Soviet-Polish war and the Riga Peace Treaty of March 1921 was the diplomatic recognition of the Belarusian Soviet Socialist Republic (BSSR) by Poland. In August 1921 Polish representatives made several attempts to start negotiations with the BSSR authorities on the exchange of the diplomatic representatives. These attempts encountered opposition from Soviet Russia and failed.

Nevertheless, several commissions created in accordance with the Riga Treaty were opened in Minsk. One of the most active and important was the Division of the Repatriation Commission located in Moscow. Minsk was one of the two designated border crossing points for thousands of refugees, returning home to Poland from the Soviet republics. Therefore in July 1921 upon the request of Belarusian authorities a division of the Moscow repatriation commission was opened in Minsk. Its main responsibility was assistance to refugees and confirmation of Polish citizenship for those who wanted to return to Poland. From the Belarusian side assistance to refugees was rendered by the Belarusian Commission on Evacuation (Belevac) of the Central Commission on Evacuation of the People’s Committee on Internal Affairs of the Russian Federation. From June to October 1921 lists for 116 911 refugees were made in Minsk. After similar repatriation commissions started to work in several Russian and Ukrainian cities, the activity of the one in Minsk slowed down. From April to October 1922 13 449 persons registered in Minsk left for Poland, (12 047 of them — Belarusians by nationality) and 90 793 registered elsewere transited through Minsk. Registration of the refugees in Minsk was finished in the end of 1923.

Although the main responsibility of the Polish delegation of the Division of the Moscow Repatriation Commission in Minsk was rendering assistance to the refugees, mainly in providing documents proving Polish citizenship, Belarusian authorities regarded it in part as the Polish representation in BSSR. The notification on creating the USSR was made to the Polish Embassy in Moscow and Polish repatriation commission in Minsk.

Opening of the Polish consulate in Minsk was one of the conditions of the recognition of the USSR by Poland. In December 1923 Soviet authorities agreed on that condition — among several others — and a consulate in Minsk was opened officially in March 1924, several months prior to the signing of Soviet-Polish consular convention of July 18, 1924.

"Foreign Policy of the II Rzech Pospolita in 1932—1939 (Review of Polish Historical Scientific Literature of 1980—1990)" (Ludmila Drojja)

The article gives a brief survey of the most significant monograph studies of Polish historians published in 1980—1990s on basic directions of the foreign policy of the II Rzech Pospolita in 1920s till the beginning of World War II.

The author systematizes the works of Polish historians dividing them into three academic schools:

1. The Academy of Science of Poland, the Warsaw University.

2. Poznan Western Institue, A. Mickiewicz University, academic centers in Wroclav, Lodz, Szczetin.

3. The Krakov (Yagellon) University.

Besides, a significant part of bibliography of the given period is comprised by monographs, social and political journalism and also the memoirs of Polish authors published abroad (in the UK, the USA, France).

The article is followed by the bibliography list of 110 works.

"On Kazakhstan’s Nuclear Status in the Beginning of the 1990s" (Vitaly Voronovich)

The article traces the process of formation of conceptual foundations of the Republic’s of Kazakhstan foreign policy in the 1990s, mainly in the sphere of the country’s joining the Treaty on the Non-Proliferation of Nuclear Weapons.

The author is the first to give a thorough analysis of the reasons for Kazakhstan’s rejection of the nuclear status, of the decision-making mechanism of its political elite, focusing on the actions of President N. Nazarbayev — the central figure in domestic and foreign policy of the country.

The author reviews the plans of Kazakhstan administration on providing national security after nuclear weapons removal, by getting guarantees of the leading states and the formation of effective security system at the regional level.

"The Tourist Complex in the Countries of Central and Eastern Europe under Reforms" (Leonid Gaidukevich)

International tourism proved the dynamics of its development during the last decade of the XX century. These years were a difficult period of national economies reformation in the countries of the former socialist camp. Reforms in the tourist complex in the countries of Central and Eastern Europe, principles and results are reflected in the article that can be of interest both for specialists in the sphere of international tourism and for general public.

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