Belarusian Journal of International Law and International Relations 2003 — N 1


International Law

Theoretical Issues

Legal Aspects of Elaboration of the Constitution Act of the Union State — Andrey Kozik

International Organizations

The Treaty-making Process in the Council of Europe — Larisa Lukina

Functions of the International Organization for Migration — Anna Pokhlebayeva

Human Rights

Interpretation of Article III «Against Torture» of the 1950 European Convention in the Decisions of the European Court on Human Rights — Alla Shirmont

International Private Law

Regulation of Foreign Adoption in International Private Law — Natalia Sinkevich

Legal Aspects of International Character Qualification of Freight Forwarding — Dmitry Korneychuk

Comparative Law

The 1978 Constitution of Spain and its Role in the World Constitutional Process. A Comparative Legal Analysis — Mikhail Chudakov

International Relations

The Relations Between Belarus and the European Union: Domestic and Foreign Policy Aspects — Victor Shadursky

Main Stages of the EU Expansion to the East (the late 1980s—2002) — Tatiana Vorotnitskaya

The Soviet-Polish Border as a Factor in Social, Economic and Political Development of Belarusian Lands in 1921—1939 — Valery Tsynkevich

The Reasons for the Lithuanian-Belarusian SSR Declaration in February 1919 (Historiography of the Problem) — Ludmila Malykhina

International Economic Relations

Social Partnership and Its Models in Foreign Countries (Experience and Lessons) — Eleonora Lutokhina

Economy Development in Belarus: Model and Processes — Vladimir Rudenkov

Postsocialist Transformation — Nadezhda Lisovskaya

Priorities of Tourism Policy in Optimizing the Competitiveness of the Belarusian Tourism Complex — Dmitry Reshetnikov

E-commerce in Business Internationalization — Ludmila Klimovich


English Summaries

"Legal Aspects of Elaboration of the Constitution Act of the Union State" (Andrey Kozik)

The Agreement on Foundation of the Union State of Belarus and Russia (hereinafter, the Agreement) fixes the adoption of the Constitution Act of the Union State in its Article 62. However, it does not define the legal status of the Act. Article 62 became the reason of the recent discussion on the place, role, legal character and consequences of the Constitution Act adoption. The issue is all the more topical since the interstate preparation of the Constitution Act has been going on for over a year.

The following questions require clarification: the nature of the legal status of the Constitution Act of the Union State (an international agreement or a national act); the legal power (superseding member-states’ constitutions or not); correlation between the Constitution Act and the Agreement on Foundation of the Union State of Belarus and Russia. When analyzing the position of the joint Russia-Belarus team on elaboration of the text of the Constitution Act, the author reveals topical problems requiring solutions within the Constitution Act. First of all, there are the issues of  the international personality of the Union State of Belarus and Russia, and the competence of the Union State bodies and its system.

The author stands for the international legal character of the Constitution Act and its subordination to the constitutions of the member-states. Other topical issues are also explored on this basis with the use of the protocols and reports of the interstate expert groups and their working papers.

"The Treaty-making Process in the Council of Europe" (Larisa Lukina)

The article deals with the treaty-making process in the Council of Europe, which is one of the most respected international regional organizations. The treaty-making process is based on the practice of the Council of Europe as well as on the following documents: the Statute of the Organization (particularly Article 15), the 1951 Rules of Procedure of the Committee of Ministers, the 1959 Rules of Procedure for the Meetings of the Ministers’ Deputies, Statutory Resolution (93) 27 on Majority Required for Decisions of the Committee of Ministers, Resolution (76) 3 on Committee Structures, Terms of Reference and Working Methods and Rules of Procedure of the Parliamentary Assembly.

The treaty-making process consists of the following stages:

1. Initiative to draft a treaty which may come from the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities in Europe, a Conference of Specialized Ministers or a Steering Committee. The initiative to draft a treaty is approved by the Committee of Ministers and is put on the annual program of activities.

2. Drafting a treaty. The Committee of Ministers entrusts one of the steering committees (usually it is the steering committee on human rights or the steering committee on international law) with the task of drafting a new treaty. In practice the steering committee sets up a committee of experts composed of the representatives of the member-states. This committee is given specific terms of reference on the base of which the committee studies a certain problem, drafts a treaty, proposes an appropriate instrument of regulation (a recommendation or a convention) for adoption by the Committee of Ministers. The committee states its "conclusion in the form of unanimous, or, if this proves impossible, they shall make a majority recommendation and indicate the dissenting opinion" (Article 14 of Appendix II to Resolution (76) 3).

3. Consultation of the Parliamentary Assembly. In accordance with Article 23 of the Statute of the Council of Europe and Resolution (52) 26 on consultation with the Parliamentary Assembly, the Committee of Ministers may ask the Parliamentary Assembly for an opinion on any draft treaty. Thus, the Parliamentary Assembly gave its opinion on such conventions as the Convention on Human Rights and Biomedicine (ETS 164, 1997), European Convention on the Exercise of Children’s Rights (ETS 160, 1996), Additional Protocol 11 (ETS 155, 1994) and Protocol 12 (04.11.2000) to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Committee of Ministers always takes into account censorious remarks of the Assembly. However, the Parliamentary Assembly is not satisfied with its role in the treaty-making process in the Council of Europe. For that reason it asked the Committee of Ministers to submit all draft conventions to the Assembly for approval before their adoption.

4. Adoption of the convention and opening the signature. In accordance with Article 20 of the Statute, the adoption of a treaty requires a two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee of Ministers. The procedure of the opening a treaty for signature is based on the Statutory Resolution (93) 27 on Majorities Required for Decisions of the Committee of Ministers. It states that "decisions on the opening for signature of conventions concluded within the Council of Europe shall be taken by a required two-thirds majority of the representatives casting a vote and a majority of the representatives entitled to sit on the Committee (of Ministers)".

Thus, the treaty-making process within the Council of Europe is rather flexible as positions of all interested member states are taken into consideration. Participation of the representatives of the member states in the treaty-making process at different levels (i.e. on the level of the Committee of Ministers, steering committees and committees of experts etc.) promotes the adoption of conventions which will be implemented by the member-states. However, we should stress that the role of the Parliamentary Assembly in the treaty-making process is still not very high. This can be explained by the fact that the Committee of Ministers considers that the treaties, which regulate a very specific sphere of interstate activity should be drafted with the help of experts in international law, famous scientists, who are not under influence of any political party. Keeping its position as the only norm-making organ in the Council of Europe, the Committee of Ministers is able to influence the member states in the problem of drafting, adoption, opening for signature and fulfillment of a treaty.

"Functions of the International Organization for Migration" (Anna Pokhlebayeva)

The article is devoted to one of the most important issues of international law: differentiation of concepts of functions of international organizations and their competence. The issue is globally discussed by the international legal experts, therefore the article is focused on various approaches to the functions of international organizations with the IOM as an example.

The paper identifies the information, executive, regulating and control functions of the IOM. The regulating function means the IOM law-making activities aimed at norm development establishing the behaviour of the organization members.

The executive function lies in the IOM activities aimed at direct realization of the organization’s objectives by providing certain services. This function is carried out through the IOM programme that is of interest for its member-states since it is an important link in the organization aims implementation.

The control function includes all activities of the organization or its bodies aimed at the establishment of the actual situation by comparison with certain norms and rules.

The IOM information function envisages informing the international community on the objectives, policy and activities of the organization. It is aimed at contributing to the promotion of the states and the international community’s support of migration issues, at dissemination of information on the opportunities for migrants abroad and at raising the state involvement.

The author shows that the IOM activities are primarily focused on executive functions and proves that the organization is able to implement its Statute aims only under integrated realization of all its functions maintaining its global authority in migration issues settlement.

"Interpretation of Article III «Against Torture» of the 1950 European Convention in the Decisions of the European Court on Human Rights" (Alla Shirmont)

The article analyses the provisions of the European Convention on protection of fundamental human rights and freedoms Against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment as they are interpreted in the decisions of the European Court on Human Rights.

The author explores the way the court combines the dynamic and consistent approaches in the interpretation of the provisions of article III "Against Torture" of the 1950 European Convention.

"Regulation of Foreign Adoption in International Private Law" (Natalia Sinkevich)

The article considers the issues connected with the concept of foreign adoption, with resolving the conflict issues and analyzes the provisions of international treaties regulating this problem.

The author arrives at the conclusion that the relations involving the adoption of children from one state by citizens of another state ought to be termed not international adoption, but foreign adoption since the latter term reflects precisely the meaning of the relations mentioned above.

Another conclusion drawn by the author while analyzing the relationship emerging at foreign adoption is that the institution of adoption in general, and of the foreign one in particular is known to every state (with the rare exception of some Muslim countries) but the basic conditions for its establishment are regulated in different ways. This is connected with the ruling religion, morals, traditions, customs, principles and foundations. The application of the norms, regulating family relationships is closely connected with this particular country’s notion of public order, that is why the norms in this sphere are especially hard to unify. Moreover, since foreign adoption is involved, it is the case of unification not only of material rules but of the conflict ones as well.

The author suggests introducing modifications into the Marriage and Family Code of the Republic of Belarus and fixing the generally accepted norms — attachment to the law of the adopting party with the provision that the relationship in question will be treated under the binding laws of Belarusian legislation. These laws should include: the parents’ consent for adoption, the age of consent of the child and the obstacles to adoption.

"Legal Aspects of International Character Qualification of Freight Forwarding" (Dmitriy Korneychuk)

Current legal regulation of international freight forwarding has two significant features as follows: wide application of national law on the one hand and multiple non-normative instruments on the other. As a result it entails the necessity to establish applicable law in every practical case and to unify the law of transport forwarding in general. Solution of both issues deals with the question of criteria of international character qualification of freight forwarding.

In the article the author analyses various doctrinal views on the subject under research, describes practice of international legal regulation in this sphere, proposes his own approach to the concept of "foreign element" in transport forwarding relations and makes an attempt to determine the scope of a draft convention on international freight forwarding.

"The 1978 Constitution of Spain and its Role in the World Constitutional Process. A Comparative Legal Analysis" (Mikhail Chudakov)

The article is concerned with state legal and comparative legal analysis of the 1978 Constitution of Spain.

The 1978 Constitution of Spain is celebrating a jubilee — 25 years since it was adopted. The years that have passed since attest that this Constitution has become a landmark in European history and the world constitutional process.

The author dwells on the concept of the constitutional process, further determining the place of the Spanish Constitution among those which are close in time and in spirit.

The article analyses the constitutional history of Spain which counts almost two centuries. The central place in the article is taken by the comparative legal characteristic of the Constitution of Spain.

Spanish fundamental law is compared with other constitutional acts (both of monarchies and republics). Comparison involves practically all chapters and sections of the Constitution of Spain and is of significant theoretical and practical interest.

Great interest is presented by that part of the article where the author treats the question of influence of the Constitution of Spain on the elaboration of the 1994 Constitution of Belarus (in which the author participated and of which he has the insider knowledge).

The author concludes the article with the description of how constitutional law of Spain is studied at the universities of Belarus and the CIS countries and suggests that the Constitution of Spain deserves closer attention.

"The Relations Between Belarus and the European Union: Domestic and Foreign Policy Aspects" (Victor Shadursky)

The article deals with development of the relation of Belarus with the European Union, the biggest and the most dynamic regional organization. The researcher characterizes the main stages of the evolution of the relations in question and analyses their current state.

The paper focuses on the internal and external factors which determine the level of Belarusian participation in European integration, such as political differences between the leadership of Belarus and the EU, the role of Russia and the neighbouring countries, the would-be members of the EU (Poland, Lithuania, Latvia) in the development of cooperation of official Minsk with the European institutions. A particular place is given to the analysis of the population attitudes to the integration processes both in the western and eastern directions. The author’s conclusions are supported by the sociological data.

"The Persian Gulf’s on the Warpath: New Threats for Peace and Security" (Yaroslav Cherkassky)

In trying to comprehend a region such as a Gulf, the following question is central: what is the predominant pattern of its internal and external behavior?

There are no immediate prospects of the regional developing into a security community, i. e. a group of states among which war has ceased to be regarded as an option. Part of the explanation is that there are so many outstanding security claims, reflecting the emergency of most of the states of the region.

"Main Stages of the EU Expansion to the East (the late 1980s—2002)" (Tatiana Vorotnitskaya)

The policy of the EU expansion to the East is considered with the chief emphasis made on identification and description of the main stages of shaping and developing the EU policy towards ten countries of Central and Eastern Europe: Poland, the Czech Republic, Hungary, Slovenia, Slovakia, Lithuania, Latvia, Estonia, Bulgaria and Romania. The main elements of this policy are reviewed and the problems the EU is bound to face after the expansion are outlined.

"The Soviet-Polish Border as a Factor in Social, Economic and Political Development of Belarusian Lands in 1921—1939" (Valery Tsynkevich)

The paper is devoted to the analysis of the consequences of the division of Belarusian lands according to the Riga peace treaty. Before that these lands had been a single economic and cultural unity.

Special attention is given to the direct influence of the border on the life primarily of the border lands. Drawing of the border is known to have led not only to the breaking of personal contacts of the population but also to the rupture of economic relations and to the formation of separate economies on the territories of Western Belarus and the BSSR. The border lands, constantly extended, acquired a special status which affected the everyday life of the people living there and the attitude of the authorities to them.

The article analyses such issues as the crossborder movement of the population, the development of border guards and the customs service, restoration of the transport routes disrupted by the Soviet-Polish war and regulation of foreign trade, primarily, at the border.

"The Reasons for the Lithuanian-Belarusian SSR Declaration in February 1919 (Historiography of the Problem)" (Ludmila Malykhina)

The article treats the reasons for declaration of the Lithuanian-Belarusian SSR (the Lithbel) in January—February 1919, shows the origin for their evaluation appearing in the studies by Soviet and later of Belarusian and Lithuanian historians. On analysing their theoretical statements, arguments and results the author arrived at a conclusion that not a single thesis of Soviet historiography advanced to explain the declaration of the LithBel is valid anymore. The contemporary researchers of Belarusian statehood history explain the declaration from the opposing points of view and call it an experiment that failed, that did not serve the interests of either Belarusians or Lithuanians and was caused by the real threat of Poland’s aggression against the RSFSR and the latter’s intention to create a buffer state in order to safeguard the Soviet power and socialist way life in Russia.

"Social Partnership and Its Models in Foreign Countries (Experience and Lessons)" (Eleonora Lutokhina)

Production process in economy is objectively realized through the joint action of labour and capital and it is impossible when the interests of the parties — employers and employees clash. Historical development has worked out a system for the solution of such problems, that of social partnership.

But there is still a wide scatter of various views on the theoretical basis of such partnership. This determines the necessity of an in-depth study of the social practice and the existing models of social partnership in order to draw useful lessons.

Our country, the Republic of Belarus, too, needs to study this experience, since it is only starting to shape the system of social partnership.

The article deals with this particular issue. It reviews and sums up various models of realization of social partnership in foreign countries in order to provide the basis and to draw the lessons for a more successful formation of the system in question in Belarus, bearing in mind the growing necessity of partnership in developing market relations.

"Economy Development in Belarus: Model and Processes" (Vladimir Rudenkov)

The world knows no analogues of the Belarusian model of economic development, so it is a testing-ground for a social experiment. The advantages of the economic development of Belarus compared to other countries of the former USSR are not correct either in the basic conditions of the model itself or in the system-making parameters of market economy.

To make progress on the way of economic reforms Belarus has to resolve a complex of interconnected problems in raising management efficiency, in the rational use of human resources, scientific and technological potential after applying new incentives to activize the processes, promoting the authority of the country in the international arena.

"Postsocialist Transformation" (Nadezhda Lisovskaya)

The dynamic analysis of structural, institutional and monetary spheres and mechanisms in transition economies allowed the author to state the applicability of economic theories to their description regardless of social, political or historical context.

On the basis of assumptions concerning the function of money and the theory of exchange value the article explores the problems of inner growth in the centrally planned system and argues, logically and empirically, the "non-neutrality" of money.

"Priorities of Tourism Policy in Optimizing the Competitiveness of the Belarusian Tourism Complex" (Dmitry Reshetnikov)

The article explores the content of the concept "tourism policy". It shows the peculiarities of the formation and implementation of tourism policy at different hierarchical levels (global, national, regional, single agencies). The importance of national tourism administration in the realization of tourism policy is shown. The aims and the content of national tourism policy are treated within the framework of the international competitiveness theory of M. Porter and his "national rhombus" model. The national tourism policy of Belarus is viewed as a system of measures to optimize the main elements of the competitiveness of the tourism complex. The main directions of the state’s influence on the development of competitive advantages of the Belarusian tourism complex are identified. The article points out the necessity of the realization of the selective growth strategy in the export of tourism services, of complementing of the national programme of tourism development by the indicator plans of the development of the priority sub-industries of tourism economy in Belarus (transit and transborder, ecological, rural, ethnic and hunting tourism).

"E-commerce in Business Internationalization" (Ludmila Klimovich)

The paper explores the issues connected with the prospects of e-commerce development and its influence on the business internationalization growth and competitiveness strengthening.

The evolution of e-commerce takes place under the influence of the factors determining the international business environment, namely, information technologies, telecommunications, changes in cultural, legal and commercial infrastructure. These changes allow a wide use of the e-commerce by small and medium enterprises in order to enter the international market.

The author reviews the model describing the interconnection of the influence of external business environmental factors and inner characteristics of a company for internationalization of enterprises with e-commerce use.

The author concludes with the practical importance of the research of the e-commerce use for enterprises and businesses.

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