Belarusian Journal of International Law and International Relations 2003 — N 3


International Law

Theoretical Issues

Towards the Legality of Armed Anti-terrorist Measures in the Context of the Non-intervention Principle — Elena Dovgan

Human Rights

Regulation of Bipatrism and Quasi-Bipatrism Within the Framework of Integrated Unions — Alexey Grigoriev

International Private Law

International Economic Law and Issues of Supranational Regulation of Foreign Economic Relations of  the Republic of Belarus — Olga Tolochko

Legal Nature of International Freight Forwarding Obligation — Dmitry Korneychuk

Development of Collision Legal Regulation in the Russian Federation — Elena Leanovich

Documents and Materials

Recent European Union Legislative Developments in Migration, Asylum and Border Management Field (only russian)

International Relations

Belarus and Russia in the XXI Century — Alexandr Sharapo

The Relations Between the BSSR and the RSFSR in 1919—1921: Controversial Partnership — Alexandr Tikhomirov

The Belarusian-Baltic Relations in the Regional Context — Nadezhda Khalimanovich

The USSR and the Second Vienna Arbitration: Diplomatic Assessment of the Results and Consequences — Anatoly Salkov

Documents and Materials

Refugees and Migration Problems (International Seminar Materials) (only russian)

Overview of the “Soderkoping Process” (only russian)

International Economic Relations

Economic and Social Issues and Consequences of China’s Joining the WTO — Igor Volynets, Yulianna Malevich

Customs Collaboration within the Framework of the Process of the Belarusian and Russian Integration — Tatiana Busleyko

Human Capital as a Factor of the Republic of  Belarus’ Economic Integration — Pavel Demin

The Employment Policy of the Republic of Belarus in the Context of the International Labour Market Trends — Margarita Bondar

Documents and Materials

The German-Belarusian House Cooperation (Karlsruhe) (only russian)


English Summaries

"Towards the Legality of Armed Anti-terrorist Measures in the Context of the Non-intervention Principle" (Elena Dovgan)

The present article concerns itself with the problem of qualification of acts of international terrorism as well as of measures undertaken to combat it in the context of the principle of non-intervention into the domestic affairs of states. The author examines the very essence of international terrorism, historical evolution and contemporary developments of international legal regulation and doctrine concerning this problem. This article also considers the legality of the use of military force as self-defense against terrorist acts.

In the view of the author, according to the rules of modern international law, international co-operation is to seek to bring organizers, executors and accomplices of terrorist acts to criminal persecution, preferably by the special international tribunal. States sponsoring or harboring terrorists should be subjected to international responsibility for the breach of their international obligations. Terrorist acts do not constitute an armed attack. They cannot be invoked as a justification for the use of force in the course of self-defense.

International community can apply a range of measures as countermeasures. International law and the principle of non-intervention into the domestic affairs of states, in particular, acknowledge the possibility of military incursion into the territory of a state and even of replacement of its government. These measures, however, cannot be undertaken unilaterally by separate states. They should be applied exclusively within the framework of the existing collective security system set forth by the UN Charter, that is, with the explicit authorization of the UN Security Council.

"Regulation of Bipatrism and Quasi-Bipatrism Within the Framework of Integrated Unions" (Alexey Grigoriev)

There are various types of integration of states, which are characterized both by integration nationality and by its absence. The closest integrated unions are evidently bound to envision integration bipatrism. Some complex states may have no single nationality, but due to the lack of binding elements such states do not exist long. At the same time, nationality of complex states, including federations with weak federative relations, may be of international importance. In order to retain and develop integration links disintegrational bipatrism and quasi-bipatrism can be established. Integration nationality demonstrates transition from dual- to multiple nationality.

Many countries take an active part in European and global integration creating a system of multi-tier interaction regulation of dual and multiple nationality of countries with different political regimes, state systems and forms of governance. Their policy varies from region to region and form one historical period to another. It rather seeks not so much to get rid of bipatrism as to replace its harmful effects by the required ones.

"International Economic Law and Issues of Supranational Regulation of Foreign Economic Relations of the Republic of Belarus" (Olga Tolochko)

Foreign economic relations can be regulated both by the national law and international legal norms. However, the problem of distribution of the roles of national and international law, their correlation, interaction and interdependence is still not solved in the theory of law.

Besides, the majority of works on international legal effect on foreign economic processes are devoted to international acts (treaties etc.) adopted with the participation of the given state. The existence of the "supranational" legal regulation itself, i.e. legal regulation external for a sovereign state, is not widely recognized in the international law doctrine.

At the same time the argument that any legal regulation under the national jurisdiction is impossible without the direct participation of the given state is not true. The essentially revolutionary economic integration processes of the beginning of the XXI century cannot but call forth radical changes in their legal regulation. The author believes that one of their manifestations is the appearance and increase of the role of supranational factor in the legal regulation of internal and external economic relations with the participation of sovereign states.

"Legal Nature of International Freight Forwarding Obligation" (Dmitry Korneychuk)

The problem of a definition of international freight forwarding obligation is considered to be one of the most important among modern issues of international private law, because the lack of a clear legal definition not just causes difficulties in law enforcement practice but also puts obstacles in the way of legal regulations unification process of international freight forwarding. At the same time the legal nature of the mentioned obligation arises from its economic and legal aims is considered to be of fundamental importance.

In his article the author analyzes basic approaches to consideration of the legal nature of international freight forwarding obligation, emphasizes specific traits peculiar to it and makes suggestions to establish a unified legal model of the mentioned obligation regardless of the actual content of the freight forwarding operations carried out by the forwarder.

"Development of Collision Legal Regulation in the Russian Federation" (Elena Leanovich)

The present article discusses the differences in the collision legal regulation of some civil legal relations with a foreign element on the basis of the comparative analysis of a number of provisions of the Civil Code of the Republic of Belarus and the Russian Federation.

The peculiarities of the choice of the applicable law according to Russian legislation are studied along the following lines: property law and other proprietary rights, contractual relations, party autonomy and tort liabilities.

The article studies the problem of the application of the 1993 Convention on Legal Help and Legal Relations for Civil, Family and Criminal Cases and of the 1993 Agreement on the Procedure of Settlement of Disputes Connected with Economic Activity in order to settle the so-called conflict of collisions, that is, the discrepancies existing in the collision law of the Russian Federation and the Republic of Belarus. The author comes to the conclusion that these international treaties leave many problems open and do not correspond to the contemporary level of development of national collision law. With reference to the experience of the EU countries the author makes suggestions on developing cooperation in the area of international private law between the Russian Federation and the Republic of Belarus.

"Belarus and Russia in the XXI Century" (Alexandr Sharapo)

The author of the article presents a brief analysis of political, economic and social aspects connected with the emergence and development of union relations of Belarus and Russia at the turn of the XX century. The article reveals the complex and controversial character of this process and shows the causes of its slowing down. Significant attention is given to the problem of building the union state depending on geopolitical regional and intrastate transformations which have taken place in the world arena and in the CIS countries over the last decade. The author shows the impact of the world processes of globalization and integration on regional integrational policies of certain countries ,in particular, with regard to Russian-Belarusian relations.

The author focuses specially on the differences in the positions of Russia and Belarus on the issues of the union-state construction, the problems of developing and adoption of fundamental legal instruments, on the single currency introduction and some others. He comes to the conclusion of the necessity of a thorough analysis of all these factors and of the shift of these relations into the practical area.

"The Relations Between the BSSR and the RSFSR in 1919—1921: Controversial Partnership" (Alexandr Tikhomirov)

The article discusses the problems in the relations between the RSFSR and the BSSR in 1919—1921. The author comes to the conclusion that Soviet Russia played the key role in the establishing of the BSSR and was the first country to recognize its sovereignty. But in supporting the establishment of the Byelorussian Soviet state, the leaders of Soviet Russia pursued first of all their own interests, regarding Soviet Byelorussia as a buffer state called upon to defend the Soviet country from a possible intervention of European “bourgeois” states. In these circumstances there was no question of equality in the relations of the two republics, especially for the Soviet Russia leaders of the party hierarchy. All programme documents of Soviet Byelorussia confirmed the wish to stay in a close and inseparable relations with the RSFSR, to defend its interests in the international arena and to be guided by the RSFSR norms in legal and social spheres. Meanwhile, the leadership of Soviet Russia failed to consider the interests of Belarus in implementing their policy. In 1921 the BSSR and the RSFSR signed the Workers and Peasants Union Treaty by which Soviet Russia recognized the sovereign status of Soviet Byelorussia. Nevertheless, this treaty did not substantially change the character of the relations between the two republics.

"The Belarusian-Baltic Relations in the Regional Context" (Nadezhda Khalimanovich)

The question of regional security and cooperation is particularly important for the Republic of Belarus because of the changing regional geopolitical environment. First of all, it is connected with the country’s neighbours, the Lithuanian and Latvian Republics joining the NATO and the EU.

Different positions concerning the European security in the 21st century and the priorities of foreign policy of Belarus and the Baltic states, the NATO and the EU enlargement and the changes, connected with these processes can cause some tension and instability in bilateral Belarusian-Baltic relations. 

The Belarusian-Baltic relations are investigated in the article in the context of regional security and cooperation. The influence of a range of external and internal factors on the development of these relations is shown. Some problems connected with Lithuania and Latvia joining the EU are considered. The author examines the structures of regional cooperation with Belarus and Baltic states’ participation, including the euroregions "Neman", "The Lake Land" and also the possibilities of the cooperation within the framework of the Council of the Baltic Sea States.

"The USSR and the Second Vienna Arbitration: Diplomatic Assessment of the Results and Consequences" (Anatoly Salkov)

As a result of World War I according to the 1920 Trianon Peace Treaty Romania gained about 32% of the territory of the Kingdom of Hungary including multinational Transylvania, whereas the post-war Hungary itself got only about 29%. That is why the core content of the Hungarian foreign policy, marked by expansionism, was the revision of this treaty. By the decision of the Second Vienna Arbitration, held by Germany and Italy on August 30, 1940, Romania handed over Northern Transylvania to Hungary and received guarantees for its new borders. The arbitration exacerbated the national and territorial contradictions and strengthened the dependence of both antagonists on Germany. German troops were deployed in Romania.

The assessment of the results and consequences of the arbitration by the interested parties, which is based on new documents is of special importance. It was perceived as national tragedy in Romania, but Berlin gave appeasing statements on the Transylvania and Bessarabia concessions being of temporary nature. The Budapest assessment added up to the arbitration decision having been taken in favour of Germany but not of Hungary which, on gaining territory, gained a very inconvenient boundary line. In fact, its situation proved to be less favourable that it had been before. The comprehensive assessment of the Transylvania decision of Germany as not a final one was given by A. Hitler himself. Most important was the USSR reaction which was displayed in two talks between F. Schulenburg and V. Molotov on August 31 and September 9. Moscow’s resentment was based on the German side’s violation of article III of the Soviet-German treaty from August 23, 1939 and focused on 4 issues:

1. It was agreed back in June, that the statements of the German ambassador to Rome G. Makensen in his talk with the Russian charge’ d’affaires L. Gelfand on May 20 on Germany and Italy needing to settle the problems of the Balkans and South-East of Europe jointly with the USSR, were his personal opinion, but not the point of view of the German government.

 2. The Vienna decision referred to the issues which required consultations and informing, because it was the question of two countries neighbouring the Soviet Union. But Germany merely informed the Soviet Union postfactum.

3. While deciding the fate of Bessarabia and Bukovina the USSR had informed Germany beforehand, waited for its answer to take a decision, took Berlin’s position into account and limited its Bukovina claims by its northern part.

4. During the period of taking a decision on Northern Bukovina Molotov expressed hope, that, when the circumstances were favourable, Germany would support Soviet claims to Southern Bukovina as well. But the guarantees for the new Romanian border conflicted with these plans.

The acute resentment of the Soviet side was determined by the fact that its territorial claims had not been taken into account at all when they collided with the greater interests of Berlin. Soviet discontent became the object of constant discussions in diplomatic circles in Moscow and was recognized to be the first serious tension between the Soviets and the Axis Powers. The Romanian envoy to Moscow G. Gafenku even classified various diplomatic evaluations of the obvious Soviet discontent and identified two parameters:

1. Moscow was not satisfied by the form of the settlement of the problem. The USSR considered it to be its gained right to participate in the rearrangement in the Danube basin and in the Balkans.

2. Moscow was not happy about the content of the Vienna decisions either. It was connected with unclear delimitation in 1939 of Soviet and German zones of influence in the South-East of Europe, which allowed the USSR to keep hope to "implement sometime the dream of the exclusive supremacy in the Black Sea and the straits".

But Germany set up a barrier for these plans in Vienna because the Germans reached the Black Sea via Romanian Constanza, so that the Danube became, in fact, a German river. So Gafenku came finally to the conclusion that the arbitration and its consequences "were the first diplomatic defeat of J. Stalin, who had learned to achieve great victories at small risk. This defeat was the more painful because it affected the dream which had always been most dear for the Russian soul — the dream about the South". The Soviet appeals to the Romanian guarantees, obtained in Vienna, were connected with the most important international events later on too. They were heard during the notorious visit of Molotov to Berlin on November 12—13, 1940, they were used as a factor of pressure on Italy during its attempts to resume economic negotiations with the USSR. In the course of Soviet-German rivalry in the Balkans the Soviet Union made an unsuccessful attempt to establish control over Bulgaria. The latter was urged to accept precisely the Romanian variant: in exchange for the Moscow support of its claim for western Phrakia and access to the Aegean Sea Soviet troops were to be deployed there and new borders were to be guaranteed. Thus, starting with the autumn of 1940 and right up to the beginning of the war between the USSR and Germany, the Transylvania arbitration and the guarantees of the borders established for Romania, as well as Moscow’s discontent with these decisions became essential and constant aspects of the Soviet policy in the Balkans and the USSR relations with the Axis countries.

"Economic and Social Issues and Consequences of China’s Joining the WTO" (Igor Volynets, Yulianna Malevich)

Entering the WTO has both advantages and disadvantages for any state. The case of  China demonstrates them in full.

It is very important for our country to study the experience and the mechanism of China’s joining the WTO, because the working group consisting of the Belarusian Scientific & Industrial Association, the Ministry of Foreign Affairs of Belarus and the National Academy of Sciences of Belarus has been established. Chinese diplomatic circles managed to protect their country from the direct impact of many negative consequences of the WTO regulations by multi-step negotiations. They also managed to gain preferences by achieving the priority of national legislation over the WTO norms.

Taking into account the similarity of the economic systems in the past, China’s joining the WTO may illustrate similar consequences. The Republic of Belarus has a unique opportunity to apply the world experience to minimize the losses for the national economy after joining the WTO.

"Customs Collaboration within the Framework of the Process of the Belarusian and Russian Integration" (Tatiana Busleyko)

The article is devoted to the research of the Customs collaboration within the limits of the process of the Belarusian and Russian integration. Normative and legislative acts regulating customs relations between Belarus and Russia are examined. Particular attention is focused on the Agreement on the Customs Union between the Republic of Belarus and the Russian Federation, concluded on January 6, 1995. The process of formation of the Customs Union between Belarus and Russia is examined in detail. The specificity of its functioning at the customs territory of the Union State of Belarus and Russia is considered and the prospects for the Republic of Belarus’ joining the system of the European and World economical relations are outlined.

"Human Capital as a Factor of the Republic of  Belarus’ Economic Integration" (Pavel Demin)

The article reveals the essence of the economic category "human capital" and its role in global integration processes. Human capital is defined as an inherent factor. According to the author it is formed as a result of investment and can be regarded as a certain accumulated level of health, education, skills, talents, motivation, energy and cultural development both of individuals and the society which are well-managed in any sphere of social reproduction, contribute to the economic growth and affect the personal income.

Human capital is an aggregate of the constituting elements. The main ones are biological and cultural human capital. Biological human capital consists of two parts: one is inherited, the other is acquired. Individual cultural capital can be characterized by intellectual, educational, moral and social capital.

The capital reproduction can be realized by investing in the sphere where it is either the object, or the subject or the result of influence.  The structure of investments into human capital includes education, in-service training, health care, motivation, information search and migration, fundamental scientific developments, ecology and  lifestyle, culture and leisure.

Human capital development index, involving the majority of the elements of human capital, gives quite an accurate picture of the aggregate of human capital accumulated by a state. The article cites these elements, indices on each of the aspects and the development indices figures for the European states ranked according to their human capital. The author also makes a comparative analysis of the Republic of Belarus position against these European states. The analysis shows that a rather high level of cumulative human capital of the Republic of Belarus is one of the basic factors for the country’s integration into the European economic community.

"The Employment Policy of the Republic of Belarus in the Context of the International Labour Market Trends" (Margarita Bondar)

This article dwells on certain tendencies on the international labour market (ILM). The situation on the ILM can be characterized by the following facts:

— negative attitude to foreign workers;

— growth of feminization in the developing countries;

— recruiting of highly skilled workers from the developing countries to the economically advanced countries and vice versa.

This article also focuses on the employment policy in the Republic of Belarus, which ought to take into consideration the tendencies on the ILM.

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