Belarusian Journal of International Law and International Relations 2001 — N 4


International Law

Theoretical Issues

International Law Implementation in the Republic of Belarus — Alexey Barbuk

Liability Institution in International Law

Codification in the Field of International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law — Victor Strochuk

Refugee Law

The Asylum Institution in the Republic of Belarus: the Theoretical Legal Aspect — Larisa Vasilieva

International Private Law

International Unification of Financial Leasing — Andrey Kolesinsky

Towards Juridical Persons’ Citizenship — Elena Smirnova

The Investment Code of the Republic of Belarus: Legal Aspects of an Investment Climate Formation — Alevtina Kamelkova

The Responsibility of the Parties in the International Treaty of Commercial Representation (Agent Contract) — Elena Babkina

International Taxation Issues — Tatiana Alexakhina

International Arbitral Tribunal Award — Aliaxandr Danilevich

International Relations

Terrorism and Modern International Relations — Alexandr Chelyadinsky

Summit Conference on Cooperation and Confidence Measures in Asia as a Reflection of New Approaches to the Regional Security Issues — Ludmila Khukhlyndina, Vitaly Voronovich

Soviet Diplomacy and Repatriants (1946—1955) — Vladimir Snapkovsky

The USA Historiography on the International Relations Evolution after the End of the Cold War — Svetlana Svilas

Social Democrats’ Foreign Policy Strategy Shaping in Poland — Leonid Loyko

The Attitude towards Refugees in Belarus — Vitaly Vyborny

Documents and Materials

The Final Document of the Fourth Belarusian and Russian Scholars “Round-Table” Discussion of the Belarus—Russia Relations Issues (only russian)

International Economic Relations

Currency Crises in the International System of the Fixed Currency Rates — Rainer Schweickert


English Summaries

"International Law Implementation in the Republic of Belarus" (Alexey Barbuk)

The present article provides the analysis of the existing mechanism of implementation of international law in the Republic of Belarus, as well as suggestions for its improvement. Though the Belarusian legal system is generally oriented at due fulfilment of international obligations, it might still be useful to reconsider the current Belarusian approach to some details of correlation between municipal and international law, as well as to the concept of self-executing norms of international law. The Constitutional Court should become the central national judicial body empowered to examine complaints from citizens which would provide the uniformity of application and interpretation of international law, the compliance of national legislation with all sources of "hard" international law. Another step to improve the implementing mechanism is to provide for the direct effect of the whole corpus of international law, unless it is prohibited to apply certain provisions by international law itself. In order to make direct application of international law effective, the national legal order must contain a well-elaborated system of legal remedies that might be used in municipal courts in any case of breach of an international rule. There are  several legal remedies in the legal system of the republic which can already be used for this purpose. But they are not enough to attain the desirable effect. Contributions not only of international lawyers, but also of specialists in constitutional law, civil, economic and criminal law and process, financial and administrative law are required for the elaboration of the system of legal remedies.

"Codification in the Field of International Liability for Injurious Consequences Arising Out of Acts not Prohibited by International Law" (Victor Strochuk)

The article analyses the work of the International Law Commission on the topic of international liability for injurious consequences arising out of acts not prohibited by international law.

A brief overview of the past work of the ILC is followed by the analysis of the main provisions of the draft convention on prevention of transboundary harm from hazardous activities adopted in the second hearing by the International Law Commission.

Special attention is paid to the concepts of jurisdiction and control of a state, significant transboundary harm and risk thereof. The threshold requirement for transboundary harm is considered by the author as reasonable in the conditions of modern civilization.

The obligations of States according to the draft convention are also discussed. The general obligation to prevent significant transboundary harm is viewed by the author as a sum of duties to give prior authorization, inform and hold consultations. The duty to inform implies provision of information to the affected State before the commencement of the potentially hazardous activity, exchange of relevant information during the course of activity and after the activity is completed, provision of information to the potentially affected public, and immediate notification of emergency related to the hazardous activity.

In the author’s opinion, the draft convention is a well-balanced system of measures to prevent significant transboundary harm.

"The Asylum Institution in the Republic of Belarus: the Theoretical Legal Aspect" (Larisa Vasilieva)

The article examines theoretical legal aspects of the formation of the asylum institution in the Republic of Belarus. There is a necessity to introduce amendments and addenda to present legislation and other normative acts in connection with Belarus joining the 1951 Convention relating to the Status of Refugees. The author notes that the theoretical basis of formation of the migration legal regime rests on an agreed conceptual basis and proposes to introduce into the new wording of the Republic of Belarus law on refugees such notions as "persons, seeking an asylum in the Republic of Belarus" and  "temporary asylum in the Republic of Belarus".

"International Unification of Financial Leasing" (Andrey Kolesinsky)

The complexity of international leasing consists in its being affected by a number of currency, customs, tax and other rules of state regulation not only of the country of origin but also of the country of the co-signatory. The scope of the spread of international leasing deals and participation therein of parties operating within the frameworks of their own legislations dictated the necessity of establishing the unified code of legal requirements for concluding and regulating such transactions, the code which would be coordinated with domestic legislations of separate countries. In order to eliminate the existing obstacles and make the code more assessible a numerous group for elaboration of the unified code of rules of international financial leasing application was set up within the framework of the International Institute on private law unification in 1974. The development of the convention took into account the existing national legislations; however, it was designed with the view of its becoming in its turn the basis for further legislation. Fourteen years of work of a number of specialists from different countries and international organisations resulted in adopting the UNIDRUA Ottawa Convention "On International Financial Leasing".

The present paper makes an attempt to reveal the process of designing the convention document and to focus on some points which might present some interest for the reader.

"Towards Juridical Persons’ Citizenship" (Elena Smirnova)

Succession issues attract a great interest of scholars and practitioners. The settlement of succession problems of population during territorial changes has been repeatedly treated in national and foreign literature. The succession of juridical persons as a hereditary continuity is not unknown for lawyers. The author merely draws an outline, inviting young scholars to treat in detail the problem, which has become relevant for many countries over the last decade.

"The Investment Code of the Republic of Belarus: Legal Aspects of an Investment Climate Formation" (Alevtina Kamelkova)

The Investment Code of the Republic of Belarus (hereinafter — the IC) is coming into force on October 9, 2001. The Code specifies main features of the investment climate of the Republic and, at the same time, contains some innovations, which cannot be perceived unambiguously.

Analysing the IC, the author comes to the conclusion about the forthcoming considerable centralization of the investment process, namely — the reinforcement of control functions and the intensification of the participation of the State authorities in it. The administrative system, which accompanies the investment activity, slightly varies by subjects, i.e. the President of the Republic of Belarus accumulates most of significant functions related to the investment procedure. He is entitled to take most of decisions on incentives, guarantees, etc. concerning both foreign and national investors. The Government was vested with more fragmentary functions. The role of the municipal powers in the investment process was not determined in the IC, which is fraught with some uncertainty.   

Article 79 of the IC is targeted to secure the predictability of the investment climate. Therefore, it states that any unfavorable changes should not be applied to the investor during a five-year period. In the meantime the IC does not specify any criterion for qualifying such changes as unfavorable. Thus, the realization of this norm can be complicated.

The proposed change of the form of the "venture with foreign investments" to the "organization with foreign investment", as well as the "joint venture" and "foreign venture" to the "commercial joint organization" and "commercial foreign organization" (art.80 of the IC) does not very much promote the factor of stability of the investment climate. It also remains unclear, if this change causes the statutory documents changes and the official registration later on.   

One fourth of the IC deals with the State’s incentive policy. The number of incentives, which can be granted at the highest State level, has been considerably increased. This indicates a noticeable shift of stress from a ‘normative’ to a contractual sphere of the investment process.

Protection of foreign investments is one of the major components of the investment climate as a whole. It is important to pay attention to the entirely new principle, introduced by the IC, i. e. the unified approach to the national and foreign investments.

Generally, the term "investment protection" includes all possible measures aiming to restrain the Host State (any public authority) from interfering in the functioning of the investments. According to the IC, seizure of an alien’s property such as nationalization and requisition should be accompanied by the compensation from the State. The IC does not confirm the obligation of the State to refrain from any types of a property seizure; it just points out that only two forms of such seizure can be considered as a ground for compensation. However, more than 20 bilateral investment treaties, which Belarus has concluded with a number of capital exporting countries, contain a provision on expropriation, which should be accompanied by compensation. The term "expropriation" covers any legislative action or administrative action or omission attributable to the host government, which has the effect of depriving an investor of his ownership or control of, or a substantial benefit from his investment. The IC does not touch upon the above-mentioned collision and, in fact, restricts the investor’s right for compensation. 

The IC guarantees repatriation only in relation to (a) the investor’s profit and (b) the proceeds from the realization of a property invested. The formulation of a "prompt, effective and adequate" compensation was replaced with "timely and full" compensation without stating any characteristic of such evaluative meanings. It is not quite clear herewith to what extent "full compensation" will replace a guarantee for a non-taxable process of repatriation. Moreover, the IC does not contain the classical guarantee of a due process of law in relation to investment disputes; neither it vests the investor with a right to choose between a national court or arbitration, or international arbitration.

Summing up all the above, the author emphasizes that any codification should not affect a specificity of a "sensitive substance" such as foreign investments. It should also be realized that any investment decision taken by foreign investors is much influenced by the level of political, legislative, economical and cultural risks in the Host State. Such risk, in any case, cannot prevail over the financial benefits from such investments. It remains the only condition for the Belarusian to hope to meet the wishes of foreign investors.

"The Responsibility of the Parties in the International Treaty of Commercial Representation (Agent Contract)" (Elena Babkina)

The article reviews certain issues of the responsibilities of the parties in the international treaty of commercial representation (agent contract) on the basis of national and foreign legislation, international legal acts and also standard international agent contracts developed within various international organizations. The first part of the article studies certain aspects of responsibility of the parties in the sphere of internal relations of commercial representation (the principal/the agent). It stresses the notion of improper realization of the treaty, leading to the responsibility of one of the parties in the legislation, judicial practice and foreign states’ doctrine. The only exception from the general rule of absence of responsibility of the representative in relation to the represented party for non-realization of its obligations by a third party (the client) is del credere terms, due to which the agent can guarantee the principal from the client’s default. Such terms are legal but they must meet some restrictive requirements:

— del credere contract should be signed in writing, otherwise it is not recognized as valid;

— the agent has no responsibility for any violation by a third party of his treaty obligations but guarantees the principal only from full or partial client’s default;

— a number of countries restrict the responsibility to be taken on by the agent.

A special case of the principal’s responsibility in the relation to the agent is folding up of the principal’s activities, which leads to slowing down the agent’s activities.

The second part of the article is devoted to certain aspects of the responsibilities of the parties in the international legal relations (the principal/the third party). The commercial representative has a right to exceed his powers. In case of implicit or tacit ratification, the principal has a responsibility in relation to the third party for the commercial agent’s activities that go beyond the framework of his powers. However, this does not exclude regress responsibility of the representative in relation to the represented party in the sphere of internal legal relations as the agent violated certain conditions of the agent treaty. In other cases the agent bears personal responsibility in relation to the third party. The reimbursement amount is defined in the court proceedings on all merits of the case. If the agent abuses his powers (i. e. when the agent’s activities are in accordance with the law or warranty but are in contradiction to the  confidential  instructions of the principal), it is the principal who bears the responsibility in relation to the third party in accordance with the general rule.

In conclusion the article considers the issues of the responsibilities of the parties in relation to the third party in connection with the violation of his rights to intellectual and industrial property.

"International Taxation Issues" (Tatiana Alexakhina)

The article is devoted to the topical issues of international private law: taxation of foreign juridical persons and individuals, and the institute of international taxation agreements. In recent years the interest towards international taxation agreements solving various problems has significantly increased, since the issue of double taxation arises while practicing any entrepreneurship on the territory of foreign states.

No researh in this field is available in Belarusian jurisprudence, which is determined by the novelty of the problems arising. Both this fact and the aim to harmonize national legislation are the author’s reasons for considering this problem.

      Most of the states combine two principles in their taxation policy: taxation of  their  national juridical persons and individuals on their aggregate income on the basis of unlimited tax liabilities (the principle of citizenship) and taxation of all incomes and activities of foreign juridical persons and individuals realized on their territory on the basis of limited tax liabilities (the principle of territory). A company acting in any foreign country may fall under one of the three following regimes:

— if the company is recognized as a resident of the given country, all its income including business within the country and overseas sources is to be taxed;

— if the company is not a resident of the given country but performs activities  on its territory or has its  business office, only the income from local sources is taxed;

— if the company is non-resident and does not perform  activities  in the country nor has  a business office, only its  liability  income from local sources should be taxed.

According to the territory principle, foreign juridical persons should pay taxes in Belarus if they get profit from the Republic of Belarus sources.

However, there is no doubt that the state of residency of the given juridical persons would also be claiming a right to tax them on the basis of the principle of territory. This case results in a collision of the states’ claims for tax jurisdiction, and, consequently, a potential possibility of double taxation emerges, which, in its turn, is caused by simultaneous taxation in both of the states.

Avoiding, or at least, alleviating the negative consequences of double taxation can be achieved in two ways: adoption of unilateral measures on avoiding double taxation or participation in the international cooperation in the taxation sphere.

"International Arbitral Tribunal Award" (Aliaxandr Danilevich)

The article is dedicated to theoretical aspects of such an important act as the final award of international commercial arbitral tribunal.

The following main issues are considered in the study: the concept and substance of international arbitral award, the subject matter, functions and award object, the types of final award.

The author presents an analysis based on international documents and domestic legislation of the Republic of Belarus in the domain of international commercial arbitration. Many of the subjects are touched upon for the first time in the Belarusian law doctrine. While characterizing the main point of the international arbitral award the author subjects to criticism the concepts on the issue which exist in the world.

"Terrorism and Modern International Relations" (Alexandr Chelyadinsky)

The article explores objective and subjective causes of modern terrorism, its impact on the developments in international relations and foreign policy of certain states.

The author shares the point of view of those national and foreign scholars who see modern international relations not within the framework of the classic relations between subjects, which used to be the case in the XIX—XX centuries but within the context of civilizations conflict. At the same time the author suggests a debatable point that the main cause of terrorism is men, their activities, their countries with their policies.

"Summit Conference on Cooperation and Confidence Measures in Asia as a Reflection of New Approaches to the Regional Security Issues" (Ludmila Khukhlyndina, Vitaly Voronovich)

The idea of establishment of a special institute on security and cooperation in Asia has been repeatedly discussed even during the period of the hard confrontation between the USSR and the USA during the Cold War period, though without gaining a wide support.

The initiative of convening a summit conference on cooperation and confidence measures in Asia (CCCMA) became not only a natural consequence of the Republic of Kazakhstan policy of the non-nuclear status and strengthening of the regional security by peaceful means, but also a new way of strengthening and development of the informational and functional organizational levels of national security.

According to the intention of the founders, the conference on cooperation and confidence measures in Asia is called upon to be one of the steps in creation of the solid tissue of multilateral cooperation, of strengthening confidence between the states that will give a feeling of security to each of the member-states. Nobody will be able to break these ties and to provoke military conflict. Thus, after the process of formation of the conference systems similar to CCCMA it would be possible to state with confidence that a system of comprehensive security able to provide justice, equality and predictability of international relations has already been formed.

"Soviet Diplomacy and Repatriants (1946—1955)" (Vladimir Snapkovsky)

The article reviews diplomatic struggle in 1946—1955 on refugee and displaced persons issue between Soviet delegations in the UN (the USSR, the Ukrainian SSR, the Byelorussian SSR) and their East European allies delegations on the one hand and Western states on the other. It shows the importance of this issue in post-war international relations, thoroughly reveals the position and argumentation of the BSSR delegation at the UN General Assembly and Economic and Social Council sessions. It analyses Byelorussian proposals on the issue of the Soviet citizens repatriation and the reasons for their non-acceptance by most of the UN member-states. It explores the attitude of Soviet diplomacy to the International Organization on Refugees and the UNHCR and also the UN fundamental instruments on this issue. It reflects the turn towards realism of the Soviet delegations at the UN at the X session of the UN General Assembly on the issue of the Soviet citizens repatriation. The article is written on the basis of the instruments of the international political activities of the USSR and BSSR including the archive, the UN materials and periodicals.

"The USA Historiography on the International Relations Evolution after the End of the Cold War" (Svetlana Svilas)

Having studied abundant academic sources, the author shows the interpretation of the international relations evolution after the end of the Cold War by American experts. Despite the differences in academic opinion, the existence of a common concept of the US global leadership is confirmed. The author agrees with the Russian researcher T. Shakleina who identifies three interpretations of the concept: "hard" hegemony, "reasonable leadership", "loose" hegemony.

At the same time in the post-Cold War period, the trend of transition from the confrontational bipolar world to a multipolar world has developed. International relations of the XXI century should be based on mechanisms of collective solution of key issues, the priority of law and wide democratization of international relations.

"Social Democrats’ Foreign Policy Strategy Shaping in Poland" (Leonid Loyko)

Polish Social Democracy emerged due to the reorganization of the Communist Party that had been the only ruling party in the country for 45 years. The SDRP had to reconsider radically the foreign policy of the new party. After some hesitation, it rejected the one-sided Eastern orientation and aimed at integration with the West. As a result, Poland has joined the NATO and is gradually integrating into the Western community.

"The Attitude towards Refugees in Belarus" (Vitaly Vyborny)

The article presents the results of a public opinion poll "The attitude towards refugees in Belarus". The Mogilev City Association "Humanitarian Initiative" has made an attempt to fill in the gap in information on this problem within the framework of a joint project with the International Public Association for UN Studies, Information and Educational Programmes and the UNHCR.

The rise of the migrational activities, wide uncontrolled movement of displaced persons on the whole postsoviet territory have become a characteristic and disturbing modern feature. Complex issues of refugees and displaced persons caused by political and cultural intolerance, economic and ecological collapses, wars and international conflicts have serious consequences for the development and security of the young sovereign states. Massive flow of forced migrants makes a strong impact with far-reaching negative results on the young state formations, which are not always prepared to such dangerous developments. People displacement exhausts limited resources of the new states and often undermines their political, social and economic transformation.

In July—August 2001 four Belarusian cities (Minsk, Brest, Gomel, Mogilev) saw simultaneous public polling regarding the perception of refugees by 1200 Belarusians from 16 to 60 and over. The questionnaire envisaged getting analytical data concerning the perception of refugees in Belarus and the attitude of the Belarusian population to different nationalities, sex and education.

"Currency Crises in the International System of the Fixed Currency Rates" (Rainer Schweickert)

The article analyses systems of the fixed currency rates in the developed industrial and developing countries. The author thoroughly describes the reasons for the collapse of the Bretton-Woods and European currency systems. He touches upon the coordination issues in the symmetrical system of the fixed currency rates in the target zones of the dollar, yen, euro and gives a forecast of their development. The article reviews the advantages and disadvantages of the systems of the fixed currency rates in certain Asian and Latin American countries, their positive and negative experience in the solution of the problems of national economies stabilization. The article concludes with setting out the strategies of avoiding sharp fluctuations of the exchange rates in the systems of the fixed currency rates.

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