Belarusian Journal of International Law and International Relations 2002 — N 4


International Law

Human Rights

Peculiarities of Rule-making in the Human Rights Sphere — Ludmila Pavlova

Refugee Law

Definition of the Term 'the Refugee' in International Law — Vitaly Maslovsky

International Organizations

The Legal Status of the International Organization for Migration — Anna Pokhlebaeva

The Problem of Perfection of the Commonwealth of Independent States Rule-making Activities Mechanism — Igor Barkovsky

Comparative Law

Strengthening of Judicial Authority in the Sphere of Civil and Criminal Legal Procedure of the Republic of Kazakhstan — Kayrat Mami

International Relations

Some Problems of Eastern European Countries’ Accession to the European Union — Alexandr Sharapo

Belarusian-German Relations Issues of 1914—1922 — Alexandr Tikhomirov

Historiography and the Sources on the Caribbean Crisis History — Svetlana Svilas

Concepts of 'Old Regionalism' in the Context of Contemporary Europe — Ekaterina Domorionok

Belarusian-Italian Relations in the 1990s — Oksana Mishurovskaya

The Contemporary Geopolitical Features and Position of the Republic of Belarus — Irina Pimoshenko

The First Summit of the Conference on Interaction and Confidence Building Measures in Asia: Results and Prospects — Vitaly Voronovich

Regional Security of the Persian Gulf — Yaroslav Cherkassky

International Economic Relations

Methodological Approaches Towards Determination of the Long-term Strategy of Development of Economic Relations between Belarus and Russian Regions — Nikita Kuchevsky, Vladimir Rudenkov

Globalization and Business Administration — Elena Meshaykina

The International Practice of Crisis Management Procedure — Sergey Rudenkov


English Summaries

"Peculiarities of Rule-making in the Human Rights Sphere" (Ludmila Pavlova)

The article outlines the peculiarities of rule-making in the sphere of human rights.

The author considers this issue within the framework of the traditional sources of international law (treaty, custom, resolutions of international organizations, verdicts of international courts) and comes to the following conclusions:

1. International treaty codifying basic human rights and freedoms is universal both in the subject and content spheres. In the subject sphere it is oriented to its use by any state with regard to any citizen resident in its territory. In the content sphere it gives identical interpretation of the rights and freedoms irrespective of whether the treaty is a universal or regional instrument. The treaty is enforced in full, reservations are not allowed or are restricted.

2. International custom continues to play a significant role as a source of law of human rights. It is underlined that a range of common norms, fixing fundamental human rights and freedoms that are not subject to derogation by states in any case, have the status of imperative norms obligatory for all states.

3. Innovative character of the development and adoption of the human rights instruments is typical of the CSCE/OSCE and the European Union. The instruments adopted within CSCE/OSCE, without the typical features of international treaties, are recognized to be international obligations and have the status of international human rights standards. National legislation should be brought into accordance with it.

4. Verdicts of international courts play an important role in identification of common norms of international law in the human rights sphere and especially in their qualification as general customary norms of jus cogens. What regards regional human rights courts of the international tribunals ad hoc, their interpretative conclusions concerning convention regulations on human rights having contradictory practice and ambiguous evaluation by states are especially significant for national law enforcement

"Definition of the Term 'the Refugee' in International Law" (Vitaly Maslovsky)

The article examines universal international norms relating to refugee definition. The author notes the use of group definition in the instruments adopted before World War II. The examined issues include refugee definitions in the statutes of the International Refugee Organization and of the UNHCR. Primary focus is on the refugee definition contained in the 1951 UN Convention relating to the Status of Refugees. Inclusion, exclusion and cessation clauses in Article 1 of the 1951 Convention are reviewed according to the UNHCR Handbook on Procedures and Criteria of Determination of Refugee Status, states’ practice and doctrinal positions. In view of variety of approaches to several elements of the refugee definition the author recommends utilisation of the UNHCR Handbook for harmonisation of positions. The author notes the need for application of the internationally developed legal opinions related to refugee definition in the national refugee protection system.

"The Legal Status of the International Organization for Migration" (Anna Pokhlebaeva)

The article discusses the history, the structure and the programme activities of the International Organization for Migration.

This organization has been in existence for 51 year. The decision about its creation was taken at the 1951 Brussels conference by the resolution which expressed the idea of joining the states’ efforts to meet the existing and emerging needs in migration.

The IOM is an inter-governmental organization. In 2002 129 countries participated in its work, with 93 member-states and 36 countries with the status of an observer, as well as 60 international organizations and international non-governmental organizations with the status of an observer. The Republic of Belarus started its participation in the work of the IOM as an observer in 1994. 1996 saw opening of the IOM mission in Belarus.

The IOM cooperates with its partners in the international community to promote the solution of the urgent problems of migration through better understanding by the states of the problems in migration and through encouraging social and economic development of these states with the help of migration. At the same time, special attention is paid to the welfare of the migrants themselves through the organization of the migration services.

The structure of the IOM, which according to the Charter is headed by the Council, Executive Committee and Administration, is important for the implementation of the organization’s objectives. Owing to the effort of the organization’s officers and a well-developed action programme IOM rendered help in moving 12 mln migrants in 1951—2001.

Though the mandates of the IOM and the UNHCR may look similar, their competence really is different: the UNHCR activities are of humanitarian character and pertain to forced migrants-refugees. Whereas the IOM is concerned with a wide range of issues and deals with the movement of wider sections of people in accordance with the principle than humanitarian and well-ordered migration ought to benefit both the migrants and the receiving state.

During the half-century of its activity this organization proved to be a universal forum for the decision of the problems connected with migration. This forum offered an opportunity for the dialogue between the countries on major issues of migration policy, focusing on management and regulation of international migration, which allowed the IOM to take a certain place among other international organizations.

"The Problem of Perfection of the Commonwealth of Independent States Rule-making Activities Mechanism" (Igor Barkovsky)

The article explores the peculiarities of the mechanism and the stages of the rule-making activities of the CIS.

The author believes that the analysis of the CIS Charter, the founding documents of the CIS bodies shows that the widest legislation authority rests with the Council of Heads of State and the Council of the Heads of Government of the CIS. These bodies take decisions on a wide range of the action issues of the organization as well as of the cooperation of the member-states. The rule-making activity of other CIS bodies is mainly aimed at preparation and coordination of the documents adopted by the Council of Heads of State and the Council of the Heads of Government of the CIS and at adoption of decisions on a narrow range of issues (Foreign Ministers' Council and the Economic Council). At the same time the practice of the majority of international organizations shows that their supreme bodies are mainly focused on the consideration of the most important issues of the activity of the organizations, on cooperation of the member-states, whereas the adoption of decisions on all other issues is the competence of other bodies. In the author's opinion, the experience of other international organizations proves the expediency of the settlement of the problem of precise separation of the rule-making mandate between the CIS bodies.

On the basis of the analysis of the procedure rules the Council of Heads of State and the Council of the Heads of Government, Foreign Ministers' Council and the Economic Council of the CIS adopted by the Council of Heads of State on October 7, 2002 the article determines the stages of the rule-making activities of the organization and makes a number of proposals concerning the perfection of the CIS rule-making activities mechanism.

Thus, it is deemed expedient to develop a normative legal act regulating the activities of the expert groups coordinating the CIS documents. Suggestions are made on perfecting the decision-taking mechanism. In the author's opinion, the order of taking decisions by the supreme CIS bodies through consensus, established by the procedure rules, may impede efficient settlement of intra-organizational problems of functioning.

Besides, the article discusses briefly the issues connected with publication of documents adopted within the CIS. The publication of the documents adopted within the framework of the CIS is made according to rule 23 of the procedure rules. The complete texts of the documents adopted by the Council of Heads of State and the Council of the Heads of Government and open for publication are published in the Information Herald of the Council of Heads of State and the Council of the Heads of Government "Sodruzhestvo" (the Commonwealth), which is sent to the states and the charter bodies of the CIS.

The author believes that it would be logical to publish alongside with the documents of the Council of Heads of State and the Council of the Heads of Government also the documents adopted at the sessions of Foreign Ministers' Council and the Economic Council of the CIS for these sessions can take decisions and sign international treaties.

According to the author, the perfection of the CIS rule-making activity mechanism could be promoted by the publication of a collection of documents regulating the rule-making activity of the CIS. This collection could comprise, in particular, the CIS Charter of January 22, 1993, the procedure rules of the Council of Heads of State and the Council of the Heads of Government, Foreign Ministers' Council and the Economic Council of the CIS of October 7, 2002, the decision on separation of the authority of the Council of Heads of State and the Council of the Heads of Government of April 2, 1999, the founding documents of the CIS bodies and other documents in this field.

"Strengthening of Judicial Authority in the Sphere of Civil and Criminal Legal Procedure of the Republic of Kazakhstan" (Kayrat Mami)

The article treats the necessity of introduction of judicial review at the stage of inquiry and preliminary investigation. On the basis of the analysis of the regulations of the code of criminal procedure of Kazakhstan the author comes to the conclusion that the procedure of judicial examination of legality and validity of arrest is of incomplete nature and does not allow the courts to control in full the investigation and inquiry agencies.

To reform the code of criminal procedure the author proposes the following measures: introduction of norms fixing the controlling authority of the court in regard to all legal proceedings limiting the constitutional rights of citizens, new chapters pertaining to the damage compensation to citizens and juridical persons incurred through the illegal actions of the investigation agencies of the prosecutor’s office and courts.

The study of the code of civil procedure allows the author to make a proposal about the introduction of the institution of arbitration proceedings which permits to regulate conflicts between the subjects of specific legal relationships in a civilized manner.

"Some Problems of Eastern European Countries’ Accession to the European Union" (Alexandr Sharapo)

The article considers some problems connected with the accession of Eastern European countries to the European Union. In particular, the ambiguity of their prospects in economical and domestic situation is emphasized. The author points out a number of negative consequences of these countries’ accession to the EU, connecting them with the EU imposing its own "rule of the game" at the expense of the economic interests of Eastern European countries. Certain attention is given in the article to the preceding history, to the political events of the 1990s, and the public opinion in these states, related to the problem of the united Europe.

"Belarusian-German Relations Issues of 1914—1922" (Alexandr Tikhomirov)

The article explores the issues of the Belarusian-German interaction in 1914—1922. Realization of German policy towards Belarusian lands during World War I and immediately after is discussed. The author draws the conclusion that it was during that period (1914—1922), that Germany discovered Belarus as a political partner, so it is a certain landmark in the history of the two countries’ relations. German occupation of Belarus in 1915—1918 was ambivalent; on the one hand, Germans showed interest for and even sympathized with the development of national awareness, on the other hand, they put obstacles to the forms of its practical realization, denying Belarusians the right to establish their national state. In 1919—1922 Germany lost the possibility to exert any real influence on the process of formation of Belarusian statehood and pursued its "Belarusian policy" in accordance with international political conditions. Eventually, this policy led to Germany officially recognizing the Belarusian state in the form of the BSSR in November 1922. This recognition objectively put Belarusian-German relations on a new level, but the inter-state interaction failed to develop, for in December of the same year the BSSR joined the USSR, delegating its powers in implementing international policy to the USSR bodies.

"Historiography and the Sources on the Caribbean Crisis History" (Svetlana Svilas)

The article is devoted to the most acute crisis of "the cold war", its causes, its essence and its lessons as well as to the document sources and historiography of the problem.

The author followed the correspondence between N. Khrutshev and J. Kennedy, published in 1992, memoirs, current Russian historiography, the works of American authors and the proceedings of scientific conferences in Washington, Havana and Moscow. The military, political, ideological and psychological causes of the Caribbean crisis are exposed, its history and the ways of overcoming it are described. Moscow and Washington equally shared the responsibility for the events which took place 40 years ago. The article shows the role of the leaders of the USSR and the USA, of the diplomacy and secret services of both countries in the search for compromise. The stand of F. Castro is also presented in the article. Not all mysteries of the crisis can be assumed to have been revealed. It is relevant and instructive to turn to its history and its lessons in the conditions of the new system of international relations.

"Concepts of 'Old Regionalism' in the Context of Contemporary Europe" (Ekaterina Domorionok)

In the article the author analyses the approaches to the phenomenon of regionalism in the second half of the XX century and the possibility of their application to the current events in contemporary Europe, more precisely, within the European Union.

The pattern has been chosen based for several reasons. First of all, the EU itself is a regional organization. This means that it represents the emergence of regionalism at its highest level — as a form of international interstate cooperation. Secondly — the EU is a highly institutionalized organization and its institutions and mechanisms can be compared with those of a national state. Thus, there appears one of the most arguable questions of power distribution between the supranational and state bodies. Thirdly, the theoretical background of regional integration studies was quite developed in Europe. Finely, the very new level of interregional cooperation "new regionalism" is being developed within the framework of the European Union integration.

The author believes that the concepts of "old regional studies" may be reconsidered in the European Union environment. According to the author, this approach can be possible when taking into consideration regions as such being components of states and not groups of states as it was considered in the analyzed concepts.

It is stressed in the article that this phenomenon should not cause "alarm" in the European affairs; on the contrary, ways should be found to influence and control such a process. The author indicates that the trend cannot be stopped, therefore, it is necessary to find the most efficient way to cope with it. The compromise between regions, states and supranational institutions is the guarantee for further success of the European integration.

"Belarusian-Italian Relations in the 1990s" (Oksana Mishurovskaya)

Expansion of cooperation with Western European countries in all spheres became one of the priorities of the foreign policy of the Republic of Belarus after it gained independence. Taking into account the geopolitical situation of Italy and its historical involvement in the policy of big powers, this country cannot be dismissed as an unimportant element in modern international relations.

The large-scale cooperation of Belarus and Italy was promoted by state political contacts which were instrumental in shaping the legal-treaty base, trade and economic cooperation and in developing common orientation in foreign policy on international problems.

Two periods can be identified in the history of the inter-state relations of Belarus and Italy. The first (1992—1996) is characterized by the development of such aspects of bilateral relations as formation of legal base, growth of economic links, creation and implementation of projects in humanitarian and cultural fields.

The second period which began in 1996 and is going on was determined by the cooling of Belarusian-Italian relations and reduction of political contracts which had a negative effect in all fields of bilateral cooperation.

The analysis of the trade turnover between the two countries shows that it does not realize its potential. But even with the comparatively small volume of Belarusian-Italian trade, it still ranks third in the general export volume and second in the general import volume among the leading countries of Western Europe.

The author points out the potential of Belarus which is mainly characterized by highly-skilled labour force and unexplored market of consumer goods and instruments. The latter can drive the sales to a larger Russian market.

The negative factors hindering economic cooperation comprise administrative complexity, frequent changes in tax law, investment bills and variations in customs tariffs and payments.

It is necessary to emphasize that the humanitarian and cultural relations are developing most successfully. Italy leads among the countries of Western Europe in expanding rehabilitation programmes for children from Belarus on its territory and in adoption of orphaned children.

Joint cultural actions and humanitarian projects supported by the embassies and various institutions of the two countries contribute to a great extent to the development of friendly ties between the citizens of the two states creating an atmosphere of mutual trust.

"The Contemporary Geopolitical Features and Position of the Republic of Belarus" (Irina Pimoshenko)

The collapse of the Soviet Union cardinally altered Belarus’s geopolitical role on the map of Europe. Consequently, the young republic found itself at a unique crossroads between the east and west—at the geographical centre of Europe. By European standards Belarus can be compared in physical size and population with Austria, Belgium, Greece, Hungary and Portugal. The republic ranked ninth in terms of human development among 19 Central and East European countries in the year 2000 despite the controversies surrounding Belarus’s transition.

The author argues that Belarus’s foreign, economic and cultural policies should reflect its unique geopolitical location within the context of an expanding Europe. In spite of its traditionally strong ties with Russia and the Commonwealth of Independent States, Minsk needs to equally foster and actively pursue constructive relations with its immediate neighbours and the West.

"The First Summit of the Conference on Interaction and Confidence Building Measures in Asia: Results and Prospects" (Vitaly Voronovich)

The article sums up and analyses the results of the first summit of the heads of state and government of the Conference on Interaction and Confidence Building Measures in Asia (CICA) which took place in Almaty on June 3—5, 2002. At the same time the author presents the history of the convention of this representative forum on security in Asia, and of preparation of its main documents. The author also gives a brief assessment of the acts and declarations signed by the participants and of the new objectives and prospects of the development of the CICA and its institutionalization.

"Regional Security of the Persian Gulf" (Yaroslav Cherkassky)

A region is a subsystem of the international system. So, the analysis of the problems of regional security, requires choosing some criteria that might be applied. But one of the most important criteria is an assumption that the Gulf region is unstable.

There are two major problems with arms race. They divert resources needed elsewhere, and they tend to jeopardize stability. So, if the present build-up continues, the region may end up in a situation of fragile balance, i.e. a situation where everybody is in a position to hurt others, but where no one side is capable of defending itself against a determined surprise attack, i. e. what one might call a mutual offensive superiority stance. All states may thus be able to retaliate after any attack. But such a stalemate situation is only stable up to a point, till when one of the actors moves, in which case a small move may well trigger a chain reaction:

— if one of the states lowers its guard, the temptation for the others to exploit the window of opportunity may prove irresistible;

— if any one makes a step (by mobilization or just a large-scale military exercise), the others may fear an impending surprise attack, hence strike preemptively.

"Methodological Approaches Towards Determination of the Long-term Strategy of Development of Economic Relations between Belarus and Russian Regions" (Nikita Kuchevsky, Vladimir Rudenkov)

The authors are the first to suggest using the indicators of social and economic development of the subjects of the Russian Federation as arguments of functional dependence of Belarusian export (in value terms). Their calculations revealed that functional dependence is more accurately expressed by 2 or 3 indicators of criterial estimations. The subsequent widening of their range and inclusion into the predictive model does not provide the appropriate effect which is proven by the prediction for 2003.

Belarusian export to Russian regions with the transition processes in the economies of the two countries taken into consideration, is followed by certain risks. In this connection, the authors introduce the integral parameter of risks for the calculation adjustment of data of the export volume for a certain period.

With a view to the increase of the exchange volume the authors propose a system of organizational and economic measures and instruments useful for perfection of inter-regional cooperation of Belarus and Russia.

"Globalization and Business Administration" (Elena Meshaykina)

The article reviews one of the most complex current processes — globalization of political, economic, social and cultural relations. Its evolution brings each country to the necessity of the adaptation to the constantly changing pattern of global interaction. The author analyses the globalization essence as an objective process of consolidation of diverse world links and impacts which lies in the increasing growth of global migration of capital, commodities, people, information and, as a result of that, radical increase of separate states’ and persons’ susceptibility to conditioning and impacts of international environment.

The author believes that the reasons for globalization are the following: development of transport, information and telecommunications, liberalization of international economic relations leading to customs elimination and liberation ofcurrency and financial operations, development of business infrastructure and formation of extremely favourable psychological and ideological conditions. On the basis of world literature on the given topic the author studies the determining factors of the given process relevant to certain forms, situations and processes. Financial factors concern the global migration of capital, money and transfer of property; market factors — integration of economic activities as a result of globalization of markets and competition strategies; technological factors — globalization of research, applications, innovations and technologies; cultural factors — convergence of life styles and consumption patterns on the world scale and universalization of thinking and culture; legal and political factors — unification of legal regulation, global management methods and integration of social, economic and political systems into the universal world system; ecological factors — increasing threat to the civilization as a result of environment devastation and abuse of resources.

The author evaluates the policy of enterprises in modern conditions and the ways of raising their efficiency and competitiveness. She believes that transnational corporations became a response to the qualitative changes in information transfer, the change of role of certain factors of production and the means of adaptation to the liberalization of international economic relations that provides easier distribution of production on the global market. The article  considers the possibility of use of the TNC’s experience in policy development and management perfection by the national subjects of economy.

The author believes that the evolution of the enterprise during globalization goes through the following stages: national growth, increase of export activities and foreign production organization, internationalization and, finally, globalization. Therefore, it is necessary to develop the strategy providing efficient operation at every stage with the timely shift to the next one. It is especially important for the last two stages that can be characterized by the issues of high complexity. Global market becomes the aim of ever more subjects of economy, thus giving start to their search of new management and organizational methods.

"The International Practice of Crisis Management Procedure" (Sergey Rudenkov)

The financial situation of many enterprises in the real sector of the economy of the republic has been hard since the beginning of the current year. Even in the most profitable branch, communications about half the enterprises are incurring losses. Real creditor debts and overdue creditor debts are increasing and the problem of non-payments remains acute.

Though the legal and normative base on sanation and crisis management has been developed in the republic, in reality, the process is enforced on a limited scale and not efficiently. In this connection, of particular interest is the experience of the developed countries on financial rehabilitation and crisis management by court and non-court action, which is the subject of the given article.

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