Belarusian Journal of International Law and International Relations 2002 — N 3


International Law

International Law and Domestic Law

Possibilities for Realization of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Constitutional Court of the Republic of Belarus and by other National Courts of Law — Grigory Vasilevich

Human Rights

International Protection of the Rights of the Child as an Institution of International Law — Oleg Starovoitov

Regulation of Military Service Within Multiple Nationality Framework: Comparative Legal Analysis — Alexey Grigoriev

Theoretical Issues

Protection of Legitimate Expectations and Direct Application of International Law — Alexey Barbuk

Towards Correlation of the Principle of Non-Interference in the Internal Affairs of States and State Sovereignty — Elena Dovgan

International Relations

The Vilna Issue in International Relations (1918—1920) — Alexandr Tikhomirov

On Academic Research of the Chair of International Relations of the International Relations Faculty of Belarusian State University (1992—2002) —  Alexandr Gurin, Vladimir Snapkovsky

UNHCR Activities in the Republic of Belarus in 1992—1995 — Andrey Selivanov

The Eastern Policy of the Council of Europe in the late 1980s—1990s — Vitaly Pavlovsky

The U.S. on the Way to the World Leadership: the Results and Lessons for the New Century — Alexandr Plashchinsky

Problems of Spain’s Integration into NATO — Alexandr Naumov

The Situation of Kurds in Turkey in the 1980s—1990s  — Rashidi Asad

Documents and Materials

Belarusian International Relations Scholars’ Scientific Conference (only russian)

International Economic Relations

International Migration and the Problems of Retaining and Accumulating Human Resources — Alexandr Bondar

Belarusian-Turkish Economic Relations: Current Situation, Problems and Prospects — Yener Gerdan

Determining Export and Import Priorities of the Republic of Belarus on the Basis of Intersectoral Relations Modelling — Oleg Prikhodchenko

Peculiarities of Commodity Structure of Foreign Trade of the Republic of Belarus — Dmitry Reshetnikov


English Summaries

"Possibilities for Realization of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Constitutional Court of the Republic of Belarus and by other National Courts of Law" (Grigory Vasilevich)

The article contains an analysis of the norms of the Constitution and effective legislation with a view to specify the possibilities for realization of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Constitutional Court of the Republic of Belarus and by other national courts of law.

Comparison is given of the norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Constitution of the Republic of Belarus.

The author comes to the conclusion on the necessity of realization of European standards in the field of human rights in Belarus, since the Constitution of Belarus will proclaim the supremacy of universally acknowledged principles and norms of international law. The article reflects the significance of decisions of the European Court of Human Rights for forming legal positions of the Constitutional Court and other national courts of law. Some examples of such a normative effect on the work of the Constitutional Court of the Republic of Belarus are presecuted.

"International Protection of the Rights of the Child as an Institution of International Law" (Oleg Starovoitov)

The institution of international protection of the rights of the child as an aggregate of international legal norms, regulating cooperation of states in provision and protection of the rights of the child in all spheres of life was formed after World War II within the framework of the United Nations. Beginning with 1945 the evolution of international protection of the rights of the child, like the one of human rights has been developing towards elaboration of international standards in the protection of the rights, of the child and establishing of special bodies monitoring implementation.

Legislation in protection of the rights of the child has been going along several directions: 1) fixing the rights of the child in universal declarations and conventions on human rights (the Universal Declaration of Human Rights, 1948; International Covenants on Human Rights, 1966); 2) fixing the rights of the child in international agreements regulating the rights of certain social groups, connected with children (women, refugees) in certain fields (family law, labour law, education) (e. g. Convention on the Elimination of All Forms of Discrimination against Women, 1979; Convention on Consent to Minimum Age for Marriage and Registration of Marriage, 1962; the ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1999); 3) development of declarations and conventions to regulate specifically the rights of the Child (the Declaration on the Rights of the Child, 1959; the Convention on the Rights of the Child, 1989).

A special monitoring mechanism, established under the Convention of the Rights of the Child is empowered to consider the states’ reports on implementation of the provisions of the Convention. In addition, protection of the rights of the child can be implemented through other international mechanisms in human rights protection. Specialized UN bodies also provide protection of the rights of the child in their respective areas: the International Labour Organization (ILO), the World Health Organization (WHO), the United Nations Educational, Scientific and Cultural Organization (UNESCO). The United Nations Children Fund, established in 1946, renders international aid and technical support to states in protection of the rights of the child.

To sum up the above, the following definition of the international protection of the rights of the child can be given: it is a system of international bodies and procedures providing protection of children through development of international standards in the field of protection of the rights of the child and establishing special mechanisms to monitor the states fulfilling their obligations.

Thus, parallel to human rights protection and within its framework, international protection of the rights of the child evolved, which has led to the identification of the set of international legal norms, regulating states’ cooperation in this field. As a result, the institute of the rights of the child emerged, which is a part of a separate branch of international law, pertaining to human rights.

The institution of international protection of the rights of the child besides the main principles on human rights also includes special principles, regulating specifically the legal status of children: prevention of discrimination, ensuring the best interests of the child, free expression of opinions, the right to well-being, special care and protection.

The institution of international protection of the rights of the child is an aggregate of international legal principles and norms, determining the obligations of state-parties to provide for and implement these rights and freedoms, as well as international mechanisms to monitor the implementation.

"Regulation of Military Service Within Multiple Nationality Framework: Comparative Legal Analysis" (Alexey Grigoriev)

The article is devoted to one of the topical problems in international law — regulation of military service within multiple nationality framework. The author refers military service to independent sources of bipatrism and its elimination and gives his analysis of the related problems (service period, internment, captivity, issues of servicemen families’ rights provision).

The author criticizes the classical concepts of international law doctrine that regard citizenship and military service to be inseparable. Although in many countries citizenship and military service require loyalty, one should not equate the institutions of citizenship and military service. Such practice becomes more widely spread in international law and contributes to the reduction of real bipatrism. In this connection, the author suggests reconsideration of the issues of the struggle with real and quasi bipatrism and determination of new approaches to the solution of these problems.

The author analyses the well-known methods of solution of the bipatrism issues during the military service, including the struggle with bipatrism in favour of the military service requirements provision (the American method), regulation of bipatrides’ military service requirements (the French method) and others. Meanwhile, he highlights their interconnection with the policy of the states, with the constituting citizenship issues and the specific nature of protection of strategic interests, defensive capacity and state security.

The author believes that state security provision can be strengthened by the introduction of a reasonable policy of multiple nationality and the regulation of military service of bipatrides and issues related to it. He suggests various measures for bipatrides’ rights protection including fixing the norms in the international and national laws that allow a bipatride not to serve against one of the citizenship states and with an admission for other states to take protective measures; norms on women, children and family members’ rights protection during the military service, abolition of norms on denaturalization and expatriation during military service, fixing of bipatrides’ mobilization service rules, realization of reasonable policy on option issues and timely elaboration of norms on bipatrides’ and quasibipatrides’ treatment in military, pre-war and post-war conditions etc.

The researcher believes that the most efficient realization of the given suggestions is possible within the framework of international cooperation in this sphere and codification of the international law.

"Protection of Legitimate Expectations and Direct Application of International Law" (Alexey Barbuk)

The present article provides the analysis of the institution of protection of legitimate expectations in the light of direct application of international law in a municipal legal order. Traditionally, the possibility of direct application of international law was considered to be dependent on the character of the norm of international law: whether it is precise or vague, whether it requires adoption of additional implementing legislation or not, etc. States have no general obligation under international law to apply rules of international law directly. It is up to states to decide how to implement international law in their domestic legal systems. That is why the decision whether an international rule is precise enough to be applied directly without adoption of additional implementing legislature is usually a subjective opinion of the state, which may be different from opinions of other states. Thus, as a rule, states apply international law in their municipal systems when it is just convenient for the governments of those states. This reality does not seem to be satisfactory. International law should be applied within a state not because it is convenient for the government, but because it may protect legitimate expectations and interests of people who in good faith rely on international legal provisions binding for the state. Therefore, the question whether a norm is precise or vague, self-executing or not is a secondary question. The primary question should be whether a particular norm of international law can protect legitimate expectations of people in a particular situation without infringing rights of third parties when being applied directly. Actually any norm of international law may be applied directly in a municipal system if it affects or creates legitimate interests and expectations among subjects of municipal law and if there is a domestic legal remedy to protect such a norm and interests.

"Towards Correlation of the Principle of Non-Interference in the Internal Affairs of States and State Sovereignty" (Elena Dovgan)

The author considers the principle of non-interference in the internal affairs of states as one of the fundamental principles of modern international law which is increasingly becoming more topical. This is connected with the specific nature of modern international relations characterized by the growing number of local conflicts, transnational crime, ethnic and religious intolerance; emergence of new principles of international law and the growing influence of universal values. So it is natural, that spreading of collective interference cases connected with the human rights protection, peacekeeping operations, combating terrorism and other international crimes introduces amendments in the interpretation of the principle of non-interference.

The article defines the place of the principle of non-interference among other international law principles, reviews its correlation with the state sovereignty concept, defines the content and volume of the notion of domestic jurisdiction.

The author believes that the principle of interference in the internal affairs of states is significantly defined by and closely related to other international law principles and in particular with nonuse of force or threat of force, the principle of sovereign equality of states and state sovereignty concept. The existence of the principle on non-interference is possible only due to mutual recognition of independence by the states.

The author notes that the sovereignty is an inherent attribute of a state that appears or disappears simultaneously with the state and therefore it cannot be limited. Development of international law and international relations puts restraints only on the state’s domestic jurisdiction, i.e. on the authority of the state to act freely in any sphere. It is underlined that domestic jurisdiction does not include the spheres regulated by common norms of international law or the norms that involve the world community. The states are prohibited to perform actions that present threat to the world peace and security.

Domestic jurisdiction includes domestic and foreign affairs. It is not possible to define its general scope since it changes together with development of international relations and differs for each particular state. International agreements define its boundaries as well as the actions that violate the norms of international law.

"The Vilna Issue in International Relations (1918—1920)" (Alexandr Tikhomirov)

The author reviews important issues of the status of the area of Vilna against the context of the interrelations of Poland, the RSFSR and Lithuania in the years of World War I and the Polish-Soviet war and comes to the conclusion that due to its position at the meeting-point, civilizations of the area of Vilna became the object of struggle between Poland, Russia and Lithuania all of which strove to incorporate “Gedimin’s city” into their states, claiming "historical rights" to the respective territories. In their struggle for the city and the adjacent lands all parties to the conflict resorted both to diplomacy and armed force. The status of the area of Vilna in the system of European international relations was greatly affected by the policy of Germany and the Entente states who had no particular plans for the territory but tended to involve it in their geopolitical schemes. The area of Vilna was also claimed by the figures from Belarusian national movement, who based those claims on "historical rights" and the ethnic composition of the area. Eventually, Poland prevailed in the military and diplomatic struggle for the area of Vilna; Poland supported the creation in 1920 of a state which appeared independent — “Middle Lithuania”. In 1922 the area of Vilna was finally incorporated into Poland.

"On Academic Research of the Chair of International Relations of the International Relations Faculty of Belarusian State University (1992—2002)" (Alexandr Gurin, Vladimir Snapkovsky)

The article summarizes the results of academic research of the Chair of International Relations of the International Relations Faculty of Belarusian State University during the first decade of its work. The Chair was established in 1992. The main directions of the Chair’s research are analyzed as well as the specialisms of the staff, their publications, the links of the Chair with other research centres on international research both in the country and abroad. The appendix lists major publications of the staff of the Chair for the decade of 1992—2002.

"UNHCR Activities in the Republic of Belarus in 1992—1995" (Andrey Selivanov)

UNHCR’s presence in Belarus, as indeed in all post-soviet countries, was established in the beginning of the1990s. For various reasons, the USSR had remained outside the international refugee protection system. As UNHCR began to develop a strategy for its involvement in the post-Soviet region in the spring of 1992, this UN refugee agency sent its first fact-finding mission to Belarus.

In general, the UNHCR’s activities in Belarus in 1992—1995 indicated the efforts in creating organizational and technical potential of the state to settle the problems of refugees and rendering aid to refugees themselves through the framework of the Belarusian Red Cross despite the fact that this society itself acted through the UN Office in the Republic of Belarus. Belarus was given sufficient attention to by the UNHCR which resulted in the expansion of contacts and eventually in opening in 1995 of the UNHCR Liason Office in the Republic of Belarus.

"The Eastern Policy of the Council of Europe in the late 1980s—1990s" (Vitaly Pavlovsky)

Still quite recently, the Council of Europe was a bulwark of "the cold war". Adhering to the ideas of pluralist democracy and human rights, it embodied a system of values different from and opposed to the Soviet one. This situation lasted till the mid-1960s. The reforms of the second half of the 1980s in the Soviet Union, connected with the name of Mikhail Gorbachev, the revival of the policy of democratization in the countries of Central and Eastern Europe made a qualitative change not only in the relations of the Council of Europe with the Soviet bloc countries but in the role of this organization as well. Beginning with 1989 the Eastern bloc countries start to seek support in the Council of Europe for their democratic development not within the framework of the East-West dialogue, but within the context of their national interests, regarding the Strasbourg organization as a first step on the road "back to Europe".

On September 25, 1989 PACE adopted the text of Resolution 1112 "On cooperation between the East and the West at the end of the XX century". The document presents the vision of the future European architecture of a single Europe from the Atlantic to the Urals. The principle of solidarity on the basis of common European values must underlie the policy on the continent. This most important position demonstrated the necessity for the renewal of the political role of the Council of Europe.

After the admission of the Russian Federation to the membership on February 6, 1996, the Council of Europe has became a truly pan-European organization. The population of the member-states makes up about 800 mln people; the countries involved have different levels of development — so these circumstances determined the necessity to adapt to a new more diverse, complex and unstable space. Promotion of democracy and its monitoring come to be the main directions of the EU activities. New priorities emerge: migration, corruption, social vulnerability and minorities.

The main motive for the membership in the EU has been, and still is the fact that this membership paves the way to the full membership in the "hard-core" organizations of European and Atlantic cooperation, first of all, in the EU and NATO. The very first years of the expansion, in fact, outlined the main problems of the Eastern policy of the Council of Europe in new conditions, such as the search for compromise between its high standards and the assessment of real situation in the new member-states, avoiding the predominance of a political dimension in the evaluation of internal development of separate states.

Maintaining the significance of the Council of Europe as the "European consciousness" will be possible only if its principles are realized in all member-states on the basis of the perception of their essence and value. Abiding by their commitments is the question of political will of the leadership of the states, the level of their political elite but not of the severity of sanctions.

"The U.S. on the Way to the World Leadership: the Results and Lessons for the New Century" (Alexandr Plashchinsky)

The article deals with one of the most topical problems of modern international relations — the U.S. hegemony in the international community. It analyses its integral parts and the foreign policy of Washington toward leadership on the world arena, which represents the strategy of establishment of the "Pax-Americana".

The author reviews the succession of the American strategy and shows the key role of the second half of the 20th century for its implementation. It is emphasized that the realization of the goal of the global predominance and the creation of the "open-door" world took the form of the Cold War. In this regard the shaping role of the bipolar confrontation for the concept of the global leadership is also touched upon.

It is pointed out that despite declarations to the contrary, the Cold War as the strategy for the establishment of the American new world order has not been finished after the elimination of the Soviet Union — its main object and the only geopolitical obstacle for the United States during the Cold War. It is over only as the bipolar confrontation with the USSR, as a result of its collapse. The author demonstrates that the above-mentioned strategy has only changed its form in accordance with the modern international conditions. Therefore its fundamental scope today is to preserve and protect the U.S. leading role in the world as the only superpower. The testimony of this trend is the NATO enlargement as well as the involvement of the strategically important regions of the world and those of the former USSR into the American sphere of influence and vital interests.

The significance of the Marshall Plan which laid the basis for the success of the U.S. predominance is also proved. The article shows that the above strategy is being realized today in its current form of the implementation of the American leadership in global dimension. The author views this to be the next stage by the construction of the U.S. of a new world order, and tries to predict the perspectives of the American strategy and those of the one-polar system of international relations.

The factor of the "common threat" and its influence on the U.S. foreign policy is also touched upon. It is pointed out that the necessity to counter this “threat” gave the possibility for Washington to start the implementation of its strategy on the initial stage of the Cold War. In this connection the author finds the historical parallels with today’s threat of the international terrorism as one of the driving forces for the present U.S. geopolitical expansion.

The article marks the sphere of utter importance for the new international system (e. g. the U.S. relations with China, Russia, India and the united Europe) as well as possible perspectives of its development in the context of the U.S. intention to dominate, having in mind the recurrence of the historical process. It finds out some results and lessons of the American leadership and its implementation. The author assumes that the necessity to compromise even the vital interests is crucial for peace and stability on the world arena as far as the U.S. intention to prevent the emergence of any new center of power, being able to oppose the realization of the "world predominance" strategy, is the root of the conflicts of the new century.

"Problems of Spain’s Integration into NATO" (Alexandr Naumov)

May 30, 1982 is considered the official date of Spain’s accession to NATO, but it remains controversial both in public and political opinion of the country.

As a matter of fact, there was no real dialogue between the parties from the World War II and up to Franco’s death. The absence of a clear position of the issue of NATO from the 50s to the early 80s was also determined by active military cooperation with the US.

The early 80s saw the start of the evolution in the authorities’ position on the issue of accession to the alliance. Whereas joining the bloc had not been regarded as urgent before, it became now one of the foreign policy priorities.

On October 28, 1982 general elections took place in Spain, where the Spanish socialist party gained a landslide victory. The new government declared the beginning of "a period of consideration and suspension of talks on Spain’s military integration to NATO". In the context of this declaration a referendum was held on March 12, 1986 where the Spanish people expressed their wish for the country to join NATO.

Spain’s problems of accession to NATO were either determined by the situation at that time or where artificial and far-fetched. Before 1975 there was no question of Spain being accepted in NATO because of the hostility to Franco’s regime, but with his death new prospects have opened for the country. However, complicated political situation in the country and the necessity of structural reforms did not leave the young democratic state the time to get down to the detailed elaboration of integrational problems. Besides, the country cooperated actively with the USA on defence issues which took off some pressure in the talks with the organizations for security. It was only when L. Calvo-Sotelo came to power in 1981 that the official procedure of accession began which was completed on May 30, 1982. In 1997 Spain became a member of the military organization of the bloc.

"The Situation of Kurds in Turkey in the 1980s—1990s" (Rashidi Asad)

The present period characterized by the aggravation of the Kurdish issue in Turkey. The problem essentially lies in the economic degradation of Kurdish regions, political deprivation of the people, slow development of social and cultural life and in the neglect of national rights of the Kurds. The issue has been in the foreground of the social life of Turkey for many years because it considerably affects social, economic, political and national processes.

Summing up and drawing the prospects of the Kurdish movement in Turkey, it is necessary to point out, that in the author’s opinion, the role of the movement is bound to grow. There are both subjective and objective reasons for this: 1) compact communities in the country, which promotes preservation of national traditions; 2) Kurdish population despite the policy of the authorities shows a steady growth rate; 3) despite the fact that the Kurdish movement in Turkey is divided and headed by several parties and organizations, their very emergence demonstrates the growth of political awareness and the preparedness of the majority of the people to fight for national and democratic rights; 4) the attitudes of Turkish society are changing.

At present a considerable part of democratically inclined Turkish intelligentsia is for granting the Kurds their rights in culture, education in the mother tongue, the use of the Kurdish language in newspapers, magazines and other publications.

"International Migration and the Problems of Retaining and Accumulating Human Resources" (Alexandr Bondar)

The article sets forth some trends in the development of external labour migration processes and argues the benefits of labour migration both for labour exporting and importing countries. The review of the history of migration flows, the conditions of their regulation in the developed countries and participation of international organization in that regulation allowed to determine the impact of international labour migration on the processes of enhancement and accumulation of human resources. The article outlines the possibilities, social and economic predestination and the expediency of the Belarusian workers’ participation in external labour migration within the context of accumulation of human resources. Attention is drawn to the necessity of provisions for the return of external migration and some steps to ensure it are proposed.

"Belarusian-Turkish Economic Relations: Current Situation, Problems and Prospects" (Yener Gerdan)

The article offers the data and the analysis of the trade and economic relations between Belarus and Turkey, starting with the USSR period and up to the present. It gives the highest and lowest commodity turnover points and the trade structure between the countries. It also evaluates reasons for the low level of current cooperation caused by a range of objective and subjective factors on both sides. The author marks the following promising directions of economic cooperation between the two countries: tourism development, turn-key construction and others. The author points out the unsolved issues and difficulties in the Belarus-Turkey relations: the red tape in obtaining visas, absence of regular air flights between the two countries, high shipping costs, difficulties in the currency conversion and expenses repatriation.

"Determining Export and Import Priorities of the Republic of Belarus on the Basis of Intersectoral Relations Modelling" (Oleg Prikhodchenko)

Export and import quota of the Republic of Belarus is nearly 70 % of the GDP. Such openness of the economy presupposes formation of maximum low expenses structure of export and import for those kinds of produce which are extremely unprofitable for domestic manufacturing.

The assessment of direct and indirect expenses of the industry sectors for the export production can be realized on the basis of intersectoral balances developed in the national accounts methodology of the Republic of Belarus since 1993.

The article gives the analysis of some total expenses of intermediate product, labour and capital for the final produce of the industry nomenclature of the intersectoral balances of 1999 and 2000 showing that in 2000 export became less resource capacious than in 1999. At the same time, there is low export of services such as transport, construction, health care and research.

For more precise determination of the directions of optimization of export it is necessary to expand the industry nomenclature of the developed balances through including at least some machine engineering branches, chemical, wood-working industries and forestry.

"Peculiarities of Commodity Structure of Foreign Trade of the Republic of Belarus" (Dmitry Reshetnikov)

The article contains the study of commodity structure of the foreign trade of the Republic of Belarus based on statistical analysis. The author notes the role of foreign trade activities in the development of national economy. On the basis of the analysis of a group of macroeconomic indices the author introduces the typology of industrially developed countries considering the volume and efficiency level of their export activities.

The article describes the dynamics, geography and state of the sales markets of basic export Belarusian goods. It points out the problems of low competitiveness of national produce on the markets of economically developed countries. The author analyses the science capacity of the export produce. He shows the substantial differentiation of the export commodity structure and technology level of exported goods along the main geographical directions (the CIS member-states and other countries).

The article examines the issues of expanding of the export potential of the sector of services, shows the current structure of foreign trade in services. It also notes the role of the export of services in the stabilization of the balance of trade in Belarus.

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