Belarusian Journal of International Law and International Relations 2004 — N 2


International Law

International Organizations

The Republic of Belarus after the EU Enlargement: the Schengen Process and the New Concept of Neighbourhood — Dmitry Loisha

The European Parliament and Its Evolution in the European Integration Process — Valeria Stukina

International Private Law

The 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air — Anton Smirnov

Comparative Law

Legal Regulation of the Referendum in Poland — Pavel Sarnecki

International Relations

The BSSR and UNESCO at the Turn of the Epoch: 1985—1991 — Roman Romanovsky

The EU Member-States’ Position on the EU Enlargement to the East — Tatiana Vorotnitskaya

The French Experience of Immigration Legislation Reforms (1993—1997) — Konstantin Snisarenko

Illegal Immigration into Spain and Combatting It — Olesya Slizheva

The Polish Eastern Border Demarcation Issues in 1920—Beginning of 1921— Alexandr Tikhomirov

The Foreign Policy Interests of the Grand Duchy of Lithuania Shlyahta and the Mechanism of Their Realization in the 60s—70s of the 16th Century — Sergey Lashkevich

Documents and Materials

World Refugee Day — 2004 (only russian)

Refugees, Migration and Protection (Materials of the High-Level Review Meeting) — Yury Morgun, Andrey Selivanov (only russian)

International Economic Relations

Stochastic Modeling of the Economy of the Country — Ernest Aksen, Vladimir Rudenkov

A Model of the Individual in the New Economy — Eleonora Lutokhina

Instruments of Managing Ecological Tourism Development in World Regions — Olga Mozgovaya

The Mechanism of Interaction of Economic Subjects of Automobile Industry and Commercial Banks Within the System of Corporate Management of External Economic Activity — Galina Pilzhis


English Summaries

"The Republic of Belarus after the EU Enlargement: the Schengen Process and the New Concept of Neighbourhood" (Dmitry Loisha)

The neighbouring states of the Republic of Belarus (Poland, Lithuania and Latvia) are on the threshold of the European Union. It presupposes compliance with the EU requirements to adopt the 1st and 3rd pillar legislation (namely, Justice and Home Affairs, Visa, Immigration and Asylum Policy). There is a need in thorough studies of the consequences, as the interests of the Republic of Belarus are involved in and affected by the process.

The Schengen process started less than a decade ago, but it is the Amsterdam Treaty of 1997 that legalized complete incorporation of Schengen acquis in the frame of the European Union. The Amsterdam Treaty contains the Protocol on incorporation of Schengen acquis, which makes implementation of the EU-adopted Schengen acquis a precondition for the EU accession.

Introduction of visas between the acceding countries and the neighbouring countries results in the breach of trans-border economic, historical and cultural relations. This process is especially painful for Belarus, as there have never been either borders or visas between Belarus, Poland and Lithuania except for short periods. Belarus falls out of the process in which culturally and historically closest countries are involved.

A transitional period in membership brings about a problem of transit visas for the Belarusians. The costs of traveling to Poland, Latvia and Lithuania have already increased with the introduction of visas and the costs will increase even more with the admission of the above-mentioned countries into the Schengen area.

Another weak point of the Schengen process in the acceding countries is a possibility of "one-direction" engagement in the Schengen Visa Information System. It brings in the problem of legal consequences for the "local" violators of visa or stay requirements on the territory of the new members and inclusion of such violators in the SIS database.

Today many Belarusians work in Poland and Lithuania, which will be rather complicated after accession in view of stricter migration and social policy in the EU.

There are positive tendencies as well. It is the introduction of the New Neighbourhood Policy in the instruments of the Commission of the EU. Besides, there will be fruitful work between neighbouring countries on matters of customs and border control co-operation. The border between Belarus and the EU has already become a "sieve" for illegal migrants and drugs. In view of the absence of any checks at the border between Russia and Belarus, it has become a heavy burden for Belarus. There is a need of development of legal basis for co-operation in justice and home affairs, refugee policy and other spheres of common interest.

The Partnership and Co-operation Agreement concluded between the EU and Belarus, frozen in 1998 due to political reasons, should be reactivated and the legal vacuum between Belarus and the EU should be filled up.

Many of the Belarusians hope to see changes for the better with the EU approaching the Belarusian border. It is the author’s belief that culturally and historically Belarus belongs to Europe and is, in any case, involved in European integration. Belarus shall re-join the family of European peoples. Belarus has better chances of full value economic and social development within Big Europe.

"The European Parliament and Its Evolution in the European Integration Process" (Valeria Stukina)

The article is devoted to the legal status evolution of the European parliament. The author analyzes further ways of the European Union development and, as a consequence, the increase of the European parliament’s role.

The author compares the powers of national parliaments with the powers of the European parliament.

Several theories of the two-chamber European parliament proposed by the European politicians and lawyers have been examined. The author thinks that the European Union development will result in a federal form of government. The classical structure of most federal parliaments is two chambers. The draft of the European Constitution does not eliminate this possibility for the European parliament in future.

"The 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air" (Anton Smirnov)

Transport law has been a most difficult field for lawyers. International air transportation is not an exclusion. This issue is especially important because on May 28, 1999 the Montreal International Conference adopted a new Convention for the Unification of Certain Rules for International Carriage by Air (MC) which came into force on November 4, 2003. It aims at consolidation of the Warsaw system into a single document in its most recent document’s version and at modernization of the air carrier liability regime (mainly, concerning passenger service). The necessity to study the MC as a document in force in many countries is determined by the character of the international transportation itself as well as by a number of factors which make the possibility of its ratification by the Republic of Belarus quite certain in near future. The article deals only with some salient points of the new unification.

The consolidation of all convention regulations of international air transportation into a single document was the main objective of the MC adoption because at that moment the Warsaw system included over 10 documents, which presented a great difficulty in determining and separation of all liability regimes. At the same time this standardization may become a serious problem. The MC is merely another document in this field. Moreover, in case states recognize standardized rules fixed for some of them in the MC text and for others in the Warsaw system documents neither instruments may be operating during the transportation between these states. The solution is the quickest ratification of both the MC and the 1975 Montreal Protocols (MP) by all states so that the number of the Warsaw system regimes could be minimized. The new Convention’s modernization of the carrier’s liability for the harm to the passenger during the transportation was based on the existing international practice reflected in the contracts between air companies of 1995—1996, which went against the Warsaw system norms. Thus, the MC introduced the following innovations: 1) elimination of the limits of the carrier’s liability; 2) abandoning the liability principle from the beginning of the carrier’s fault for the damages not exceeding 100,000 SDR and establishing absolute liability within these limits; 3) introduction of the so-called "the 5th jurisdiction", i. e. the possibility of filing a claim by the injured person at his/her place of residence.

The MC norms on the goods transportation are based on number 4 regime of the MP and the principle of the liability for the freight damage irrespective of the carrier’s fault is introduced. Only few of the circumstances fixed in article 18 can be used as the grounds for the exemption from liability. As of now the carrier must bear liability both for the contingencies and for the actions of third parties. The MC also denies the force majeur circumstances of natural character as well as some of social character, thus reflecting the theory of negation of the possibility of force majeur in air transportation operations. The author believes that these cases are possible in the air transportation practice, because it is not even necessary for the freight to be in flight to recognize the fact that damages were incurred during air transportation as envisioned by Article 18 of the MC.

Another noticeable trend in the development of air transportation is the gradual transition towards simplified (including electronic) contracts and paper work between the carrier and the customers. This involves the documents for acceptance of the freight for carriage and the air tickets (the notion of a collective ticket and a number of guarantees for passengers are introduced).

The MC establishes special borrowing rights of the IMF as a unit for calculation the carrier liability limit which is based on the 1975 MP provisions. For the first time a system of revision of the liability limits of ICAO every five years is envisioned on the basis of the notification of the states-parties to the Convention in case the inflation coefficient has exceeded 10 percent. The author supports the necessity for the Republic of Belarus to accede to at least N 1—2 of MP which replaces the Gold Franc by the SDR and the introduction in Chapter 40 of the Civil Code of the corresponding provisions on the SDR transfer with the aim to regulate the limits of the carrier’s liability.

The MC was the first to include the provision on the states-parties’ duty to demand from the carrier’s the appropriate insurance of their liability. It is evident, however, that the term "appropriate" can be interpreted in different ways by different states, which can cause serious problems in realization of transportation by air companies of different countries.

"Legal Regulation of the Referendum in Poland" (Pavel Sarnecki)

In 1989, at a starting point of transformation of her system of government, Poland had a well-established system of constitutional provisions relating to a referendum and a relevant act governing the procedure for holding a referendum, as well as some practice in this respect. The subsequent amendments of the Constitution, made in 1989—1997, resulted in further development of these provisions, and the most important instance of a referendum being held was the constitutional referendum of 25 May 1997. After the Constitution came into force, the constitutional provisions concerning a referendum were much more developed than those in the previous legal order. Consequently, the Law of 1995 on Referendum, despite its revision, has become outdated. As a result, on 14 March 2003 the Sejm adopted a completely new Law on a Nationwide Referendum.

In the article the author analyzes the three types of nationwide referendum, distinguished by the Constitution of 1997. A special place among legislative arrangements has been given to the discussion on the second type of the referendum (a referendum on granting consent for ratification (by the Head of State) of an agreement by virtue of which the Republic of Poland would delegate to an international organization or international institution the competence of organs of State authority).

In the remaining part of the article the content of the Law on a Nationwide Referendum is analysed in detail. The important novelties which the statute introduced are: a possibility to hold the referendum on one or two days, a possibility to include "explanation concerning the subject of the referendum" on the ballot paper, and a democratic construction of the referendum campaigns. In turn, the retained arrangements, which were binding before the new statute entered into force, are, notably, the institution of "the people’s initiative" — a demand, addressed to the Sejm and signed by 500,000 citizens, to hold a referendum (however, the initiative is not binding on the Sejm which may choose not to support it).

"The BSSR and UNESCO at the Turn of the Epoch: 1985—1991" (Roman Romanovsky)

The author analyzes the problems of Belarus’ engagement in the United Nations Education, Science and Culture Organisation (UNESCO) activities at the end of the 1980”s. In the middle of the eighties the Cold War influenced all aspects of international relations, including the functioning of universal international organisations like UNESCO. The USSR as well as the West used the UNESCO rostrum as an arena for ideological confrontation.

During this period the USSR and socialist countries enjoying support from the developing countries significantly strengthened their positions within UNESCO, which provoked the US and Great Britain’s withdrawal from the Organisation and put UNESCO on the brink of a crisis. The dйtente in the Soviet-American relations at the end of the eighties improved the political climate in Europe and facilitated cooperation between the Soviet Union and the Western countries in UNESCO.

In the second half of the 20th century Belarus occupied a unique position in the system of international relations. A part of the USSR, Belarus became the UN founding member and joined most of the UN specialised agencies, including UNESCO (from 1954). In the political sphere the BSSR representatives advanced the Soviet policy aimed at pressing the West through the Organisation on the issues of peace and arms race, establishing a new international economic and information order, the rights of peoples, etc.

In practical sense, thanks to the BSSR membership in UNESCO Belarusian specialists could participate in the Organisations’s various activities and promote Belarusian science, culture and education achievements as well as enjoy UNESCO’s financial and technical assistance (at the end of the eighties). Many spheres of cooperation within UNESCO such as mitigating Chernobyl aftermath or cultural heritage protection, which were initiated in the Soviet era, have been promoted by Belarus after gaining independence.

"The EU Member-States’ Position on the EU Enlargement to the East" (Tatiana Vorotnitskaya)

The article considers the positions the EU member-states take concerning the EU enlargement to the East. Special attention is given to the analysis of the stand of the three biggest countries: Germany, Great Britain and France. The article explores the correlation of the enlargement and deepening processes in the EU strategy from the point of view of certain member-states. Main motivations of different attitudes of the member-states towards the EU eastern enlargement are described and latent contradictions of these attitudes are revealed.

"The French Experience of Immigration Legislation Reforms (1993—1997)" (Konstantin Snisarenko)

The development of migration processes in modern world creates a number of problems for national states. The most important of them are: combatting illegal migration and involving immigrants in new cultural environment.

The Republic of Belarus as a country closely integrated into the world migration links is facing the above-mentioned problems. So it is deeply interested in the French experience of immigration legislation reforms, for it came to be a pattern for other European states.

The article analyzes the immigration policies of the governments of the right and centre coalitions (RPR — UDF). The possibilities to use this experience in national practice are considered.

The author comes to the conclusion that the 1993—1997 immigration legislation reforms in France were repressive and aimed at direct reduction of immigration flows into the country. They cannot be applied to the Belarusian situation. The steps to assimilate immigrants into the French cultural environment were hardly effective, so they are not applicable here.

"Illegal Immigration into Spain and Combatting It" (Olesya Slizheva)

Owing to its geographical location the Kingdom of Spain suffers particular pressure from illegal immigration. The main source-regions for it are the following:

— North Africa (Morocco, Algeria etc.),

— South America (Columbia, Equador, the Dominican Republic),

— Eastern Europe (Romania, Ukraine, Poland),

— China and other countries of South-East Asia.

By its very nature illegal immigration is closely linked with illegal business and organized crime. It is a threat to security and is fraught with other dangers.

So, combatting illegal migration is a priority of the state policy both of the EU as a whole and of the Kingdom of Spain, in particular.

A number of measures of legislative character are taken: adoption of new laws and perfecting the existing ones. Administrative steps are taken as so well, so as to establish the state border protection improvement, more efficient visa regime, etc. Political measures are also implemented both in domestic policy (tightening border control, hardening sanctions on the employers who employ illegal migrants, holding "migration amnesties", etc) and in foreign policy, which includes promoting cooperation with other states, the search for long-term solutions of the existing problems, rendering economic and technical aid to the countries illegal migrants come from and other measures. But the priority is given not only to combatting illegal migration itself, but also to the prevention of its causes, mainly of economic character.

"The Polish Eastern Border Demarcation Issues in 1920—Beginning of 1921" (Alexandr Tikhomirov)

The article dwells on the issues concerning the Polish eastern border demarcation in 1920—beginning of 1921 in the context of the developments of the last stage of the 1919—1920 Poland-Soviet war. The analysis of the positions of Poland, the RSFSR and other Soviet republics as well as that of the Entente countries and the Vrangel government allowed the author to point out different variants of the border demarcation which existed in 1920. In January 1920 the government of the RSFSR expressed its willingness to draw the borderline with Poland along the Polish-Eastern Soviet frontline as of the beginning of 1920. In July 1920, with the Red Army’s successful offensive the Entente countries suggested that the border should be based on the Polish borderline which had been elaborated by the special commission of the Paris peace conference and adopted by the Entente Supreme (High) Council on December 1919. But both variants were declined by all belligerents for various reasons. In October 1920 Poland, the RSFSR and other Soviet republics agreed to draw the border along the line of “the German trenches”, i. e. the Russian-German frontline of the 1916—1917 period. This line was proposed by the Polish delegation and was determined by the military strategy considerations. However, adopting it as the eastern border of Poland would have meant the victory of the proponents of the incorporation of Western Belarusian and Ukrainian lands into the Polish state. The agreement on the delineation of the eastern border of Poland along the "German trenches" was fixed in the preliminary Riga Treaty of October 12, 1920. The attempts to change the balance of power during the armed uprisings of B.Savinkov, S.Bulak-Bulakhovich and S.Petlyura as well as in the rebellions in Slutsk in November 1920 were not a success.

On March 17, 1921 Poland, the RSFSR and the Ukrainian SSR signed the peace treaty in Riga, the provisions of which sealed the territorial division of Belarus and Ukraine.

The 1921 Riga Peace Treaty became a certain compromise between Poland and Soviet Russia which buried their leaders’ ambitious plans. Along with the 1919 Versaille Peace Treaty it determined the international relations in Europe between the First and Second world wars. At the same time, the Riga Treaty, like the Versaille Treaty, was not and could not possibly be durable, since it was based on the principle of military and political expediency. The eastern border of Poland, drawn on a quite arbitrary basis, divided the Belarusian and Polish peoples. This circumstance objectively made for instability in the system of international relations in Eastern Europe and eventually led to the tragic events of the autumn of 1939.

"The Foreign Policy Interests of the Grand Duchy of Lithuania Shlyahta and the Mechanism of Their Realization in the 60s—70s of the 16th Century" (Sergey Lashkevich)

The geopolitical situation of the Duchy and the historical events developments influenced the formation of foreign policy priorities of the shlyahta (small nobility) in that period. These interests were based on the principles of the shlyahta liberties and economic advantages. The reform of the 60s of the 16th century laid a solid foundation for the shlyahta to realize their foreign policy interests. The mechanism of their realization developed from the decisions of local councils to those of the general Soym (Council), and after the Rzec Pospolyta was established — to those of the federal Council. The Ambassadors’ Chamber, the shlyahta chamber of the Council begins to play a special part in the realization of these interests in the second half of the 16th century.

Due to the 1560s reforms the GDL shlyakhta not only was able to form their own foreign policy line but also to counterpose it to the magnates’ interests.

"Stochastic Modeling of the Economy of the Country" (Ernest Aksen, Vladimir Rudenkov)

1. Purpose of the model

The stochastic dynamic model suggested by the authors is intended to determine and explore the determinants of economic growth in Belarus, to estimate the impact of the governments’ investment, tax, monetary and budget policies on the macroeconomic indicators (GDP, inflation, dollarization, domestic and foreign investments, etc.), to investigate different hypothetical scenarios of the economic policy, and to choose the optimal ones.

As a rule, each of the possible scenarios of the economic policies has its advantages and disadvantages. It is important to determine which effect of one or another scenario of the economic policy — positive or negative — prevails and what the aggregate influence on the economic growth is. (For example, in Belarus the wide use of granting the government credits, of the government’s investments into the firms’ equity, as well as of subsidizing the enterprises, on one hand, has a positive impact on the economic growth and, on the other hand, a negative one, since the above mentioned measures are taken at the expense of the monetary emission (seigniorage). Therefore, it is interesting and significant to determine the predominating effect and to come to a conclusion concerning the correctness of this element of the economic policy.)

2. Methodology of the construction and use of the model

This model has both theoretical and econometric features, i. e. on the one hand, it describes the structure of the studied economic systems (Belarus’ economy), and on the other hand, it is intended for the use of empirical data. The stochastic nature of the model allows to consider financial and production risks for forecasting.

The model takes into account the interests of the economic agents: households, firms and foreign investors.

When constructing and exploring the model, the following mathematical tools have been (and will be) used: random processes, stochastic optimal control, Monte-Carlo simulation.

3. Exploration of the model

The model will be explored by means of the functional analysis. There will be constructed normed spaces whose elements are random paths, and the utility maximization problems (for households, government and foreign investors) will be formulated in the relevant normed spaces (of random paths). Then, by means of the theory of optimal control in normed spaces (presented, for example, in the book [Alexeev V. M., Tihomirov V. M., Fomin S. V. (1979)]), the relevant first-order conditions (Kuhn-Tucker conditions) will be derived. The derived first-order conditions will be used both for theoretical (a-priori) exploration of the model and for the numerical modeling. The numerical modeling will be based on the method of Monte-Carlo simulation.

4. Estimation of the model’s parameters

When determining the type (specification) and estimating parameters of production and utility functions, and of other elements of the model, the main difficulty will consist in insufficient quantities of empirical data (in particular, the relevant time series are too short).

These problems (with the shortage of data) will be tackled in the following way. The regression models with the use of panel data will be run (i. e. for the estimation of parameters for Belarus’ economy, there will be used data not only for this country but also for other ones). Besides, the regression methods will be integrated with the methods of expert estimation.

5. Level of the model’s development

By the current moment, a preliminary version of the model has been constructed. The model will be further developed taking into account empirical data and experts’ opinions.         

6. Stages of Research

1. Construction of a structural dynamic model: description of relationship between macroeconomic indicators by means of algebraic equations.

2. Construction of a theoretical dynamic model basing on the structural model: description of interests of economic agents by means of utility maximization problems.

3. Construction of a stochastic dynamic model basing on the theoretical model.

4. Exploration of the stochastic dynamic model for its correctness: issues of the existence and uniqueness of the equilibrium.

5. Construction of systems of stochastic equations for finding optimal solutions of utility maximization problems.

6. Obtaining of theoretical results of qualitative nature.

7. Development of computing algorithms for obtaining numerical results.

8. Collection of empirical economic data.

9. Estimation of specification and parameters of the model (production function, utility functions, etc.).

10. Obtaining numerical results with the help of the developed algorithms basing on empirical data.

11. Analysis of the obtained results and development of suggestions on perfecting Belarus’ economic policy.

The authors will be thankful to everybody who wants to cooperate in discussing, elaboration and implementation of the model for forecasting scenarios of economic development of the country.

“A Model of the Individual in the New Economy” (Eleonora Lutokhina)

Today a paradoxical situation can be observed when, on the one hand, people as economic subjects influence economy most strongly but, on the other, economic textbooks and scientific literature practically do not carry the evaluation of the problem of the individual as the subject of economy.

At the same time the two-century-long record of determining people, their behaviour and their abstract models by economy alone is a simplified and not contemporary approach.

The rapid growth of the new economy at the turn of the 20th century contradicts both this approach and the old model of the "economic individual" whose main feature is maximizing profit.

Theoretical and methodological differentiation of the notions "type" and "model" of the individual in economy and also revealing of basic specific features of the new economy make it possible to single out the main components of the new model of the individual in the new economy. Along with general typical human features they, according to the author, can be considered as the outline of the individual’s model in the new economy. Formation of such a model should become an important part of the state policy.

"Instruments of Managing Ecological Tourism Development in World Regions" (Olga Mozgovaya)

The article explores international experience of managing ecological tourism in various regions of the world. The author gives analysis of the dynamics of the development of the international market of ecological tourism and its normative and legal base. On the basis of international practice of development of international tourism the author tried to determine the role and place of ecological tourism in the relevant field in Belarus, to study the problematic issues of the ecological tourism development in the country. It is underlined that the ecological tourism pattern has significant advantages over mass tourism and has no alternative in recreation zones of special registered territories. This mostly concerns foreign touristm as the basis for the regional prosperity growth and preserving the natural wealth.

"The Mechanism of Interaction of Economic Subjects of Automobile Industry and Commercial Banks Within the System of Corporate Management of External Economic Activity" (Galina Pilzhis)

The article considers the problems of corporate activity in external economic activities of economic subjects of automobile industry and commercial banks. The author gives a definition of the economic nature of the interaction mechanism. The article also explores the system of economic relations, characterizing functioning and development of the foreign economic relations complex of the economic subjects of Ministry of Automobile Industry of the Republic of Belarus.

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