Belarusian Journal of International Law and International Relations 2003 — N 4


International Law

Human Rights

Collective Rights of Minorities — Natalia Katko

Liability Institution in International Law

State Obligations to Prevent Transboundary Damage in International Law — Viktar Strachuk

International Public Law

International Cooperation in the Sphere of Telecommunication Technologies within the Framework of the European Union — Yuliya Kudryavets

Legal Regulation of Taxation of Foreign Nationals in the Republic of Belarus — Ivan Saleev

International Relations

The Republic of Belarus Foreign Policy Priorities and Interests — Alexandr Chelyadinsky

Foreign Policy History of Belarus (End of 18th—Beginning of 21st Centuries) — Vladimir Snapkovsky

Historiography and Sources on the History of the BSSR Foreign Relations in 1954—1990 — Svetlana Svilas

US Economic Diplomacy. The Truman Doctrine and the Marshall Plan as the Elements of a Single Strategy — Alexandr Plashchinsky

Shaping of the Security Policy of Norway and Sweden in the 1990s — Alexey Poplavsky

Documents and Materials

Belarus: Migration Regulation and Protection of  Refugees (International Seminar Materials) (only russian)


Book Review: Alexandr Tikhomirov “Belarus in the International Relations System after World War I in Europe and during the Polish-Soviet War (1918—1921)” — Yury Brovka (only russian)

International Economic Relations

Peculiarities and Prospects for Institutional Interaction System Between the Republic of Belarus and the IMF — Vitaly Krishtanosov

The Prospects of International Ecotourism Development in Belarus — Cheslav Shulga

International Tourism Circulation and its Influence on the Balance of Payment in Central and Eastern European Countries — Olga Mechkovskaya

Monetary Integration of Belarus and Russia — Nikolay Shumsky


English Summaries

"Collective Rights of Minorities" (Natalia Katko)

The article deals with one of the most relevant problems of modern international law, i. e. collective rights, in particular, with the collective rights of minorities and their interrelation with individual rights.

Despite the fact that the concept of collective rights was given legal provision for as far back as the UN Charter and later in such legal instruments as the 1960 Declaration on the Granting of Independence to Colonial Countries and People, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights and at the regional level — in the 1981 African Charter of Human and Peoples’ Rights, it has not been given the appropriate regulation in international law.

Collective rights (the right of the people, the right of a nation, the right of a community or an association) are not natural rights for they are shaped and crystallized alongside with the emergence of the interests of a certain group. They cannot be regarded as a sum of the rights of individuals belonging to a certain community. Nevertheless, however various these rights may be, their validity must be justified by the dimension of individual rights. Collective rights should not ignore human rights or contradict and suppress them (except for the situations of emergency which threaten the life of a nation or a people). If the collective rights lead to the infringement of the rights of an individual, it means that the aims consolidating this group are not humane or legal.

Nowadays economic and social rights such as the right to peace and security, to healthy environment have become as much unalienable human rights as the political or civil rights. These rights can be attained only through ensuring collective rights of the ethnic groups who are their bearers.

Ethnic minorities are a part of the nation living on the territory of another state which determines their collective rights being of a special nature, different from the collective rights of the titular ethnos. The main collective right forminorities is the right to ethnic identity, to being different from others, the right to existence and the right to autonomy, as well as the collateral right to proportional representation in parliaments and local government. It also presupposes the recognition of the right to use their mother-tongue as the official language and establishment of their own cultural and educational institutions.

International legal protection aims to preserve ethnic and cultural identity of minorities as a group, a community. The rights ensuring this protection must be of a collective character. It is the community that must have a right to identity for only it can possess the whole complex of ethnic, religious, linguistic features which make up an identity.

Hence it is necessary for the new international documents, adopted to realize the protection of national minorities, to formulate and fix not only the rights of individuals belonging to a minority but the rights of the minorities themselves as ethnic entities which have needs and interests of their own and require legal instruments of their protection.

"State Obligations to Prevent Transboundary Damage in International Law" (Viktar Strachuk)

The article discusses the current status of international state obligation to prevent transboundary damage.

Two approaches to the nature of this obligation can be discerned in the academic literature. One is that it is an obligation of result. However, more accepted is the view that it is an obligation of conduct, requiring to take the necessary measures exercising due diligence but not to guarantee the non-occurrence of damage. If one adopts the latter approach, one is confronted with the determination of the due diligence concept. The concept is vague; however some of its parameters enjoy support in the doctrine and the documentation of the International Law Commission.

The obligation to prevent transboundary damage has a complex nature and consists of several individual obligations, both material and procedural, which are analyzed in the article. Various stages of the activities connected with the risk of causing transboundary damage involve different concrete obligations.

The material obligation of the states is to implement various domestic acts of legislation aimed to carry out the obligation to prevent transboundary damage. The activities causing or likely to cause transboundary damage should be regulated by international minimum standards.

Due to the vagueness of the due diligence concept the procedural obligations of the states may be viewed as criteria to determine whether the state exercised due diligence in carrying out its obligation to prevent the damage. They include environmental impact assessment, notification of the planned activities, information exchange, holding consultations and negotiations. The environmental impact assessment has become the basis for fulfilling other aspects of the obligation. The consent of the affected states is required if the assessment reveals that the activities will cause transboundary damage in the course of normal operation. However, the international arbitration confirms that if the activities do not lead to the damage or only create risk of damage, then the state may allow the conduct of the activity without the consent, provided that the risk is minimized and the interests of the potentially affected states are taken into account.

The interests of the other states may be said to have been observed if the proper information on activities is communicated to them. In the author’s opinion, the scope of the notified states should be determined with respect to the nature of the proposed activities and its potentially harmful effects. On their request, the source state should hold consultations with the potentially affected states with the view to achieve a mutually acceptable solution.

It is also necessary to keep in mind that the due fulfillment of the notification obligation cannot be objectively verified. The exact scope of information to be provided is not determined in international law.

If as a result of the consultations the parties do not reach an agreed solution, the source state may proceed with the activities without the consent of the potentially affected states, after having taken into account the interests of the affected states and measures to minimize risks. The obligations to inform and hold consultations continue after the activities have been started.

The analysis undertaken in the article evidences that the complex obligation to prevent transboundary damage is filled with duties of impact assessment, notification, information exchange and consultations. However, the duties are sometimes formulated rather generally and make it difficult to determine whether the state acted with due diligence in fulfilling the obligation. The fulfillment of the procedural obligations may be viewed as a criterion to determine the extent of the due diligence of the state.

"International Cooperation in the Sphere of Telecommunication Technologies within the Framework of the European Union" (Yuliya Kudryavets)

Today the most topical issues are those connected with telecommunication technologies functioning which has integrated the latest means of communication and information processing. The means of communication and information technologies are considered in the European Union as communication services and information transfer sphere. The main aim of the EU telecommunication policy is assistance in creation of a comprehensive system of communication facilities involving not only the EU member-states but also the neighbouring countries which are part of the global telecommunication network.

The EU member-states have been working on the development of measures to co-ordinate national policies in the sphere of information and telecommunication technologies since the mid-1980s. The first norms relating to the common European telecommunication market can be found in two acts developed by the European Commission: The 1985 White Paper and the 1987 Green Paper on development of the common market of telecommunication and services. In fact they established the norms for telecommunication services trade, created legal grounds for competition stimulation on domestic markets and provided access to those markets for private and foreign manufacturers.

While creating and using modern telecommunication system two private law issues may arise: what criteria may define the information service as the trade article and what legal means may be used for protection of the creative work product. Trade in such non-material product as services causes problems somewhat different from the issues in the commodities trade sphere, therefore a simple extension of the commodities trade regulations onto the services trade is impossible. Special rules are necessary which would take into account the specific nature of the product. These rules were established on the basis of the General Agreement on Trade in Services (GATS) and also its Annex on telecommunications. The main achievement of the GATS has become the fact of giving such non-material phenomenon as "services" the status of the article of international trade.

The measures on implementation of the principles fixed in the GATS were developed in the EU Directive 2000/31/EC on some legal aspects of the services in the information society. The problems of unification of exclusive rights protection are given in the EU directive 2001/29/EC from 22.05.2001 on harmonization of some aspects of the copyright law and ajjacent rights in the information society. It significantly expands the existing system of copyright and adjacent rights protection without contradicting it. The legal mechanism of communication facilities and information is fixed by the Council of Europe in obligations of the member-states under the following agreements: the 1958 European Agreement on Television Production Sharing, the 1960 European Agreement on the protection of television broadcasts  and three Annexes to it (dated 1965, 1974 and 1983) and also the 1965 European Agreement on Prevention of Broadcasts from Stations Outside National Territory, the 1989 European Convention on Transnational Television and the 1994 European Copyright Convention.

Agreements or special norms on communications, computing and information infrastructure such as the 1999 Budapest Declaration on European Policy in the Sphere of New Information Technologies have a great significance in improvement of legislation in telecommunications sphere. These agreements oblige the states to support the development of modern means of processing and transferring information including facilities: to exchange information on the policy in creation of information infrastructures, to search the possibilities to implement joint projects in the sphere of information and communication technologies as well as in the sphere of creation of telecommunication infrastructure: to design joint programmes on training of specialists in IT and services etc.

Thus, the final objective of liberalization reforms in the European community has become the creation of a multi-level structure of common telecommunications market with an access for private producers and suppliers of information and communications services.

"Legal Regulation of Taxation of Foreign Nationals in the Republic of Belarus" (Ivan Saleev)

Taxation of foreign nationals in the Republic of Belarus is a topical though underdeveloped issue. Historically, there was not much practice of taxation of foreign citizens in Belarus, and it is only recently that practice started to grow.

The author analyzes the main concepts related to taxation of foreign nationals. Those foreigners who are tax residents of the Republic of Belarus are paying taxes in the same way as the citizens of Belarus, including taxation of income received outside of the Belarusian territory. Other foreign citizens (i. e. those who are not considered tax residents of Belarus) are taxed only it is with regard to income obtained from the source located on the territory of Belarus.

The author reviews different tax rates applicable to the income of foreign nationals and the necessity to file tax declarations in the appropriate cases (if any). There are two types of tax declarations that have to be filed in certain circumstances: these are the annual tax return and the ad hoc declaration.

Finally, the author discusses the impact of the international tax treaties concluded by the Republic of Belarus on the regime of taxation of foreign citizens and gives practical examples.

"The Republic of Belarus Foreign Policy Priorities and Interests" (Alexandr Chelyadinsky)

The main priorities and interests of the foreign policy of the Republic of Belarus lie within the directions towards the solution of European and international problems. The Republic of Belarus stands for the creation of a reliable architecture of European and global security on the principles of equality and equal security, for raising the UN role in enhancing a safer world, reducing the share of the military force factor in global politics, for consistent strengthening of strategic stability through bilateral and multilateral relations in combatting international terrorism, drug trafficking and illegal weapons trade.

"Foreign Policy History of Belarus (End of 18th—Beginning of 21st Centuries)" (Vladimir Snapkovsky)

The article presents an integrated review of the foreign policy of Belarus from the end of 18th century to the beginning of the 21st. The author breaks the span of time analyzed into 3 periods. The first one includes the period when Belarus was a part of the Russian Empire (the end of the 18th century —1917). The second period is the foreign political activity of the Belarusian People’s Republic and of the Byelorussian Soviet Socialist Republic as the newly proclaimed states. The third period starts with the collapse of the USSR and is going on at present. It is determined by the emergence of the foreign policy of the Republic of Belarus as a new independent state.

While characterizing the above periods the author pays the main attention to the development of the Belarusian national movement and to historical forms of Belarusian statehood, to the evolution of the geopolitical and international status of Belarus, formation of the foundations of Belarusian foreign policy, its priorities in directions, forms, methods and concepts as well as to military and foreign policy of other states concerning Belarus. The author also dwells on other issues relevant to the international dimensions of the history of Belarus at the end of the 18th century—beginning of the 21st.

"Historiography and Sources on the History of the BSSR Foreign Relations in 1954—1990" (Svetlana Svilas)

The article reviews the historiography and sources on the BSSR foreign relations history in the post-Stalin period. The author gives a brief characterization both to the most significant studies in this field and to the sources. Greater prospects are seen in the more comprehensive study and critical evaluation of the historiography of the problem on the basis of modern approaches, as well as in exploration of archive materials, and in elucidating the stands of certain diplomats, party and public figures of that time.

"US Economic Diplomacy. The Truman Doctrine and the Marshall Plan as the Elements of a Single Strategy" (Alexandr Plashchinsky)

The article deals with one of current issues of contemporary international relations, that is, US economic diplomacy. It explores its historical roots through the prism of the Truman Doctrine and the Marshall Plan, which represented the elements of the US strategy of leadership. The article demonstrates strategic significance of the economic diplomacy in the Cold War and its influence on US leadership.

The author emphasizes close interconnection between American economic interests and foreign policy programmes, and points out that the major achievements of US foreign affairs are based on the economic basis. In this context, the US dollar is viewed as the key to the position of a world leader.

The article shows that the fundamental feature of American economic diplomacy is an extension and consolidation of the US sphere of vital interests around the globe in pursuit of world leadership. Therefore, in the light of the Cold War the author examines the Marshall Plan and the Truman Doctrine as the two sides of a single strategy. The ideological schemes of the strategy implementation and its geopolitical factors are also explored. In this connection the author argues that American predominance in the world arena is a result of the US strategy of leadership.

"Shaping of the Security Policy of Norway and Sweden in the 1990s" (Alexey Poplavsky)

The Security Policy of Norway and Sweden in the 1990s was shaped taking into consideration the specific features of the region. A number of peculiarities of the two countries influenced the development of the security policy in the region. The comparative periphery of the geographical situation and small population defined the role of Norway and Sweden as subregional states depriving them of the possibility to have a considerable influence in the European affairs. The necessity to defend the sea boundaries and communications as well as the sea shelf oil deposits determined the need of strong Atlantic ties for Norway. During the "cold war" the special role of the country in NATO was defined as the northern outpost of the Alliance. After World War II the unique place in the international relations system was also taken by Sweden who established strong ties with both the western and eastern blocs. Special note should be taken of the public opinion in the Scandinavian countries, which is of conservative character on the one hand and is of great influence in shaping policy, on the other. This conservation is also inherent in the attitude to European integration, which has a lot of opponents in the region. This is partly compensated by the developing Scandinavian integration. The export orientation of Swedish and Norwegian economies compels them to seek active interaction with other countries.

With the balance of forces in Europe changing after the socialist countries bloc collapsed, both Norway and Sweden had to amend their former policies. Adapting to the changing realities has become a priority. These realities include the transformation of the NATO which entailed losing the special status of the northern outpost by Norway, the loss of the role of an intermediary by Sweden, the change of the character of perceived threats from Russia and development of their own security core by European countries.

As far as the cooperation with the European Union on the general security issues is concerned, the key problem for Norway and Sweden is the dilemma of participation in joint decisions development which would involve the loss of some of their identity. Whereas in case they abstain and retain neutrality, these countries would be destined to play minor political roles on the continent. Despite strong domestic opposition Sweden has adopted the general European line in this area. As a EU member from 1995 the country had the possibility to share in the decision-making process and has advanced a number of initiatives on strengthening the security core in the framework of the EU. Norway which was traditionally oriented towards Atlantic ties and the NATO, for a long time was not inclined to change its priorities. Energy resources and NATO membership lessened the risk of becoming a periphery. It was only at the end of the decade that a change in the status of the state in the NATO and the success of the European countries in creation their own security structures. Nevertheless, the country has not quite escaped the risk of marginalization, which dictated this change of policy in the end of the 1990s.

"Peculiarities and Prospects for Institutional Interaction System Between the Republic of Belarus and the IMF" (Vitaly Krishtanosov)

The article outlines the main characteristics of the existing system of international financial institutions (IFI), identifies and analyzes interaction mechanisms between IFO and donor and recipient states. The author gives an integrated review of national financial institutions (NFI) which include national agencies for development, export-import banks and ecological institutions.

The analysis of global trends in shaping the system of the IFI interaction with NFO, donor and recipient countries served as a basis for identifying and characterizing the peculiarities and prospects of the institutional interaction of the Republic of Belarus with the IFI system and NFI. The shortcomings of the interaction that came to light allowed to draw the conclusion of the necessity to reflect the system of institutional relations of the country with IFI.

"The Prospects of International Ecotourism Development in Belarus" (Cheslav Shulga)

The economy of the republic under the conditions of budget deficit needs new financial resources including hard currency. According to the author one such possible resource is ecotourism development. This requires the solution of economic, organizational, infrastructure, legal and regulational problems which hinder the civilized ecological tourism. This necessity brought to the life elaboration of strategies and specific plans of development of high resource tourism, raising the organizational bodies’ awareness of marketing, advertising and promotion of ecotourism options while taking into consideration environmental issues and quality of life improvement for the local population. All steps in this direction should be based on the intellectually accepted principles of ecological tourism.

"International Tourism Circulation and its Influence on the Balance of Payment in Central and Eastern European Countries" (Olga Mechkovskaya)

The article explores the economic aspects of the development of international tourism in the countries with transition economies through the analysis of its functions in the economy and also through the study of the influence of tourist earnings and expenditures on national balances of payments. The study revealed that the economic significance of tourism in many countries of Central and Eastern Europe at the end of the 1990s grew as the result of the increase of the share of tourism earnings in the GNP and export volume. The tourism functions rank was upgraded from the attendant branch of economy to the leading one. Besides, in the period of social and economic crisis tourism in the majority of Central and Eastern European countries acted as an stimulus for development of other branches of national economies and tourist earnings allowed to reduce the balance of payment deficit. As a result tourism has become the important factor of improvement of balance of payment in many countries of the region. At the same time, there is a small group of countries (including the Republic of Belarus) which are in red in tourist balance where this increases the total deficit of balance of payments. In this connection, the topicality of the study of positive experience in tourism industry formation in the countries in the region with the aim of elaboration of a strategy in the international tourism sphere in the Republic of Belarus has increased.

"Monetary Integration of Belarus and Russia" (Nikolay Shumsky)

The article analyzes the necessary conditions and economic prerequisites for the economic and currency integration of Belarus and Russia, as well as possible consequences for the two states, economic entities, individuals from the introduction of the Russian rouble as the only legal means of payment on the territory of Belarus within the time limits set by the Treaty of the Union State of Belarus and Russia and the Action Programme of its implementation.

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