Journal of International Law an International Relations


Journal of International Law and International Relations 2005 — N 1


International Law

Theoretical Issues

Correlation between International and Municipal Law — Alexey Barbuk

Migration Issues

Illegal Migration in Contemporary Belarus: Issues of Criminal Responsibility — Larisa Vasilieva, Oleg Bakhur

Legal Basis of Regulation of Counteraction to Illegal Migration — Vladimir Zubkov

International Cooperation in Combating Crime

Problems of Legal Regulation of Criminal Prosecution on Behalf of a Foreign Law Enforcement Agency (criminal procedure aspect) — Vadim Samarin

International Relations

The Refugee Problem Settlement in the Early 21st Century — Ilija Todorovic, Yury Morgun, Andrey Selivanov

Global Issues: Retrospective Analysis and Contemporary Condition — Vitaly Voronovich

Security in the Political Morality Context — Sergey Lomov

International Recognition of the Republic of Belarus — Kirill Kamyshev

Some Factors of Russian Foreign Policy: Practical Dimension — Alexey Dedkov

The President of Kazakhstan’s Addresses to the People as the State’s Strategy to Meet the Challenges of Globalisation — Vladimir Alesin

Islam and Central Asia: Towards Special Course Teaching — Roza Turarbekova

Documents and Materials

EU TACIS-UNHCR Project “Strengthening the National Asylum System in the Republic of Belarus” (only russian)

Strengthening the National Asylum System in the Republic of Belarus (the Materials of the Round-Table / Seminar from March 10, 2005) (only russian)

International Economic Relations

Transborder Immigration in Belarus: Economic Aspects — Maxim Belitsky

Towards State Regulation of Labour Migration — Sergey Bulgak

Comparative Analysis of Productivity of Labour and Population Welfare Level in Belarus and Other Countries — Fedor Khodorkin

The FDI Model of the Choice of the Automobile Industry Placement — Oleg Anisko


English Summaries

«Correlation between International and Municipal Law» (Alexey Barbuk)

The present article analyzes major theories of correlation between international and municipal law (theories of incorporation, transformation, dualism, monism and the theory of harmonization), as well as the problem of direct effect of international law in the municipal sphere. The article argues that, in fact, there is no «direct» or «indirect» application of international law: international law is either applied or not applied by the subjects of the municipal legal system. The dualistic approach reflects the plurality, juridical independence and sovereign equality of municipal legal systems with regard to international law. Monism shows relativity of state sovereignty, possibility of its collapse as well as the independence and deciding role of international law in situations when a state and its legal system cease to function. However, those who apply international law do not follow any particular model of correlation of international and municipal law. In this respect the author proposes a conception, according to which, international law is an alternative to the municipal legal system and the state should bear legal responsibility for harmonization of its international and munipal legal obligations not only on international plane, but also with regard to the subjects of municipal law.

«Illegal Migration in Contemporary Belarus: Issues of Criminal Responsibility» (Larisa Vasilieva, Oleg Bakhur)

Due to the advantages of its geopoloitical location, its favourable social and political, social and economic conditions Belarus has become very attractive for illegal migrants who consider it as transit state in their illegal migration to Western European countries.

Illegal migration causes serious problems in social, economic and political life of the Belarusian society. This phenomenon is becoming one of the most profitable spheres of organized and international crime which, in its turn, comprises a significant share of the black economy.

Belarus has introduced criminal responsibility for organization of illegal migration of foreign citizens and persons without citizenship with the aim to combat illegal migration, its organized forms and to fulfil international obligations. The law from January 4, 2003 of the Republic of Belarus «On the Introduction of Amendments and Addenda to Some Legislative Acts of the Republic of Belarus» makes the following amendments to the Criminal Code of the Republic of Belarus: article 3711 «Organization of illegal migration of foreign citizens and persons without citizenship in the Republic of Belarus» and article 3712 «Violation of the law of residence in the Republic of Belarus as well as rules of transit passage through the territory of the Republic of Belarus».

The legal acts of the Republic of Belarus do not contain interpretation of the notions «migration of population», «illegal migration», «organization of illegal migration». As for the scientific concept of the migration sphere, it is a system of notions open for gradual terminology enrichment while some of the terms do not have a single definition being in a permanent evolution and improvement process. The authors made an attempt to redefine some of the key definitions used by researchers in the study of the issues of illegal migration flows. The same treatment is given to the discrepancies of some definitions in the international legal acts regulating legal relations in migration.

The authors consider the issues of the qualification of actions connected with illegal migration, give a detailed legal analysis of articles 3711 and 3712 of the Criminal Code of the Republic of Belarus, discuss the issues of collision between the norms of criminal and administrative law during regulation of some issues of illegal migration organization.

«Legal Basis of Regulation of Counteraction to Illegal Migration» (Vladimir Zubkov)

The migration issue is becoming increasingly more acute in the context of the  international relations processes and world community integration. It is also topical for the Republic of Belarus. The issue of illegal migration across the borders of one specific country, i. e. intervention into its international life, especially its relations with the neighbouring countries arises in the connection of the growth of migration flows and the growth of criminal activities. The problem has a specific nature determined by geographical and political situations. Belarus acts as a form of a staging post for illegals on their way to Western and Eastern Europe due to the «transparent» borders between some of the former USSR republics.

The author believes that it is important to continue research of migration problems on the international and national levels, the summarizing of the existing experience within the Republic of Belarus and the UN on the basis of developed and adopted resolutions of the General Assembly and improving of the methodology basis of the control of the border guards as to the aspect of the regulation of migration flows.

The author makes the following conclusions on the basis of the above-given statements.

Social, economic, political and legal transformations that have been taking place in the Republic of Belarus over recent years, the change of the place and role of the state in the society activities, recognition of priority of human rights and freedoms as the most important constitutional responsibility of the state put forth a number of basic objectives concerning the state security for the frontier guards. Their solution includes among others counteraction to illegal migration.

Settlement of issues related to counteraction of illegal migration should be performed on the basis of strict and precise observance of the Constitution of the Republic of Belarus and the existing law.

The author believes that during the further development and establishment of frontier infrastructure with regard to the international character of the issues the use and application of specific forms and mechanisms of counteraction to illegal migration should be carried out in accordance with the UN Charter provisions and decisions which formed the basis of the elaboration of methodological aspects of managing the actions of units and subdivisions of frontier guards defending the borders of the Republic of Belarus.

«Problems of Legal Regulation of Criminal Prosecution on Behalf of a Foreign Law Enforcement Agency (criminal procedure aspect)» (Vadim Samarin)

The article explores the issues related to bringing an action, initiating proceedings and referral in a criminal case on behalf of a law enforcement agency of a foreign state.

In case the suspect or the accused is outside the jurisdiction of the state where the crime has been committed, he/she can be extradited on the basis of the appropriate agreement reached by the states. The extradition can often be refused so the ancient principle aut dedere aut judicare should be in force.

In order for the court to consider the criminal case all case materials collected in the country must be referred to the country of the court. Most international agreements name the institution regulating the ensuing legal relationship as «criminal prosecution enforcement». As a kind of international legal help criminal prosecution administration constitutes an agreed referral and assumption from one state to another of a sovereign right to establish the fact and circumstances of the crime, and the perpertrators and to enforce penalty or other measures provided for by the law. This administration includes initiation of criminal proceedings on behalf of a foreign state’s law enforcement agency taking over and referral of the criminal case proceedings. At present these issues are regulated in international practice at the level of international legal acts and the national law level.

International legal acts in the sphere under consideration, binding for the Republic of Belarus, include treaties of legal aid in criminal cases as well as multilateral treaties regulating issues of combatting certain types of crimes, which mention the referral of the criminal proceedings but do not contain procedural norms. The legislation in force at the national level with the exception of the Articles of the Criminal Code of the Republic of Belarus does not regulate the issues of criminal prosecution on behalf of a foreign law enforcement agency. The law of the Republic of Belarus «On International Legal Assistance in Criminal Cases» adopted on May 18, 2004 provides for criminal prosecution of persons suspected of or accused of perpetrating crimes, which is regarded as a kind of mutual international legal assistance in absence of an international treaty. But this legal act will not come into force before the necessary changes are made in the Code of Criminal Procedure of the Republic of Belarus. Development of an institute of international legal assistance on criminal cases requires academic research of the relevant problems, but so far Belarusian legal science in the field of criminal procedure has not paid sufficient attention to this issue.

The article proposes to introduce amendments into the Code of Criminal Procedure of the Republic of Belarus by supplementing it with the chapter «Initiating Criminal Proceedings, Taking Over and Referral of Criminal Cases». In the author’s view this chapter would be applied not only to the legal relationship with a foreign state in absence of an appropriate mutual international treaty, but also to fill the gaps in the international treaties in force. The analysis of the Republic of Belarus’ international treaties and of the legislation of foreign states enabled the author to come to the conclusion of the necessity for the chapter to include 3 articles, each of them regulating a certain separate variant of criminal prosecution enforcement.

The amendments and addenda to the Code of Criminal Procedure proposed in the article would allow a more complete regulation and at the same time simplification of the work of the Republic of Belarus law enforcement agencies responsible for criminal cases proceedings when they are called upon to render international legal assistance on the principle of reciprocity and when there are gaps (in cases which are not covered) in the international treaties of the Republic of Belarus. Adoption of the norms proposed would promote gradual harmonisation of Belarusian and European legislation.

«The Refugee Problem Settlement in the Early 21st Century» (Ilija Todorovic, Yury Morgun, Andrey Selivanov)

The article presents an analysis of the refugee problem in the world and across the regions as well as the analysis of the most acute crises as of the beginning of 2004.

Due to the activity of the UNHCR, of various states and a number of international organisations the solution of the refugee problem in the beginning of the 21st century appears to be effective, with the refugee number reducing by over 3 million people. This is the greatest annual reduction over the last decades. At the same time, there are over 17 million refugees remaining in the world, so further intense work is required to alleviate the problem, primarily to settle protracted refugee crises. The situation remains unstable in a number of countries, which can lead to the emergence of new refugees. The article outlines the strategic goals of the UNHCR which are necessary to achieve for the refugee problem solution.

«Global Issues: Retrospective Analysis and Contemporary Condition» (Vitaly Voronovich)

The article reviews the developments in the global issues of the mankind. The author addresses the history of the emergence of this notion and analyzes the reasons, typology and influence of a number of the most significant global issues (non-proliferation of weapons of mass destruction, terrorism, expansion of drug trafficking, the growth of the gap between the most developed and the poorest countries, the ecological crisis etc.) and their direct and indirect influence on the global community in the 20th and 21st centuries. The article also reflects possible ways of the solution of these problems in the sphere of security at all levels (global, regional and national) and some scenarios of future events in case the global issues are not solved.

«Security in the Political Morality Context» (Sergey Lomov)

At present one of the most urgent problems that challenges the mankind is the provision of security. With the modern world turning into the «global society of risk», this problem can be solved only if the society takes a serious attitude to the questions of politics, especially to such aspects as nomination and election of persons responsible for the implementation of both national and international politics. The main criteria for such officials have to be personal moral qualities and professionalism.

Under the conditions of rapid development of the means of communication, the arms race which has not ceased in fact, and the unprecedented activization of terrorism the only possible way to preserve stability in the world is to build an international relations system based on universal human values and shared interests of the members of the international community. To achieve this goal, every politician has to be guided by the general moral principles, norms of international law, and approaches verified by the theory of international relations.

Some state leaders use particular theoretical propositions, taken out of context, for example they form the theory of political realism which is very popular nowadays, to justify the aggressive policy of their states. Moreover, international law is often understood by them as a number of ideological postulates, for example, the liberal ones, corresponding to their national interests that can be promoted, if necessary, with the use of military and economic power.

The particular danger of the policy of «national egoism» lies in the fact that it is often supported by the nation, which does not realize, that the consequences of this policy will inevitably, as a boomerang, hit the nation itself.

A great danger is also presented by the situation, when it is usually normal for the society to see politics as a kind of «dirty business», i. e. an exceptional procedure, the execution of which tolerates the use of almost any means, including the illegal ones. The lack of security and stability in the world results not from the insufficient number of national and international judicial norms, but from the political passivity of the population of the majority of states in the world, that permits national governments to violate national and international law.

Only a truly rational foreign policy based on the principle of superiority of morality and law can bring real benefits to a state.

«International Recognition of the Republic of Belarus» (Kirill Kamyshev)

The article covers the first steps of Belarus to build its independence in the late 1980s—the early 1990s. Using predominantly factual material of the Ministry for Foreign Affairs of Belarus the author analyzes the activity of Belarusian diplomacy aimed to gain international recognition of the sovereignty and independence of Belarus, as well as to establish diplomatic relations with foreign countries and to form the Belarusian diplomatic network abroad.

The author points out some peculiarities of the process of international recognition of Belarus and the factors of its irreversibility. Belarus’ advantages in this process are analyzed in comparison with the situation in other post-Soviet countries.

The establishment of diplomatic relations with foreign countries is considered in the article as the first measure to develop a bilateral interstate dialogue with the leading nations of the world. In this context the article describes the actions of the Belarusian authorities on the eve of the USSR disintegration. It contains information about key directions of the debate over the principles of creating Belarus’ missions abroad.

On the whole, the main conclusion is that international recognition of Belarus’ sovereignty and independence in the early 1990s was to be guaranteed from the very beginning.

«Some Factors of Russian Foreign Policy: Practical Dimension» (Alexey Dedkov)

The article reviews significant factors of the foreign policy of the Russian Federation in its practical dimension. The foreign policy factors are among the most important conditions of the formation of Russian foreign policy. In some of their manifestations they clearly preserved their succession from Soviet foreign policy. While revealing the factors of Russian foreign policy the greatest attention should be given to its relations with Western countries and the USA since the latter were main competitors of the USSR, the state to which the Russian Federation has been declared successor.

The author outlines geopolitical, geoeconomic, geostrategical, military and other factors. He points out the importance of combination of geopolitical and geoeconomic factors within the existing significance of military power for the foreign policy in the current system of international relations.

The mid-1990s saw the end of «romantic» relations with the West and pro-American trends in foreign policy caused by the influence of external factors in the Russian Federation political process. Appeals to maintain independent Russian foreign policy led to the necessity of consideration of the above-mentioned factors in foreign policy. This process is related to the rotation of elites on the top levels of political life as a reaction to threats to the independence of the modern Russian state. The author makes a conclusion that the most important factor of the Russian foreign policy is the political system factor. The influence of real political forces on foreign policy in modern Russia has become decisive even despite other important objective factors.

The author believes that the study of the evolution of the Russian political system as the main factor of the state’s foreign policy should be thorough and should involve the phenomenon of the unique Russian state system itself.

«The President of Kazakhstan’s Addresses to the People as the State’s Strategy to Meet the Challenges of Globalisation» (Vladimir Alesin)

The article is a study in a comprehension of the place of Kazakhstan in the contemporary world. It treats the concepts of «the challenge», «response», «threat to security», «interest» in connection with the Republic of Kazakhstan. The paper also considers the methodology of building a well-balanced national economy, reforming social and economic institutions of the country and searching for new directions of international cooperation. The author makes a study of the addresses of President N. Nazarbayev to the people of Kazakhstan as the basis for the domestic and foreign policy of the country. The geopolitical situation of Kazakhstan as a source of problems and security threats at the current stage is also analyzed.

«Islam and Central Asia: Towards Special Course Teaching» (Roza Turarbekova)

The article deals with the issues of teaching special courses on the role of political Islam in contemporary global processes and its manifestations in the case of Central Asia. Both theoretical and practical grounds for teaching such special courses are presented.

The paper raises important problems of political correctness in addressing the role of Islam in contemporary political relations. At the same time, attention is drawn to the problem of encouraging active and efficient learning of students through innovative methodological tasks, most promising of which seems alternation of various forms and regimes of practicals — from the round-table discussion to the role-play. The traditional form of lectures also remains significant.

While raising the issue of political correctness and competent assessment of the Islamic factor role in world politics the author suggests drawing the students’ attention to a number of expert studies which may give a picture of current academic discourse on the problems under discussion.

The author proposes a series of topics on Islam and Central Asia.

To begin with, students are asked to participate in the round-table discussion «The study of the political Islam phenomenon in Central Asia», so as to introduce categories and concepts in this field. Students are offered materials and points for discussion.

Secondly, within the structural framework a lecture is read on «Islam as a Factor in International Relations: Central Asia and the Outer World». It envisions the analysis of the Islamic factor influence at all levels, from the Islamic states’ leaders to the international Islamic organisations.

As a third step students are advised to take part in a role play on one of the most topical problems of contemporary Islamic world «Islam and Democracy: Possibilities and Limitations». The role play takes 4 hours of class time. The author provides materials for preparation consisting of controversial articles of well-known experts on political Islam. Before that students are asked to complete a number of question-answer tasks on the materials provided which would further the discussion during the role play.

Besides, the article carries methodological suggestions on the organisation of the role play and a supplement with recommendations.

«Transborder Immigration in Belarus: Economic Aspects» (Maxim Belitsky)

The present research is the first to explore migration to regions in Belarus as an interrelated complex.

The use of international approaches, in particular that of the European Commission as well as the original approach to the delineation of transborder territories and regions, the use of official statistical data of the Republic of Belarus permitted the author to assess the dynamics of transborder territories immigration with Russia, Lithuania, Latvia, Poland  and Ukraine over the period from 1998 to 2004.

Special importance is given to the «close neighbours» as border countries and to the economic factors enhancing regional immigration in Belarus.

The state conditions and preconditions, institutional and economic immigration factors identified here are to provide the UNDP in Belarus with possibilities to develop special mechanisms and instruments for legal and illegal immigration management.

This study presents the comparison of the immigration rates, gives a definition of «transborder regions» and «transborder immigration» according to the new European neighbourhood programme policy and national approaches.

The current problems of transborder regions development from the point of view of immigration management, significant for Belarusian economy, are presented here. They cannot be solved in the situation of the lack of financial resources without the necessity to attract  external funds, including those of the UN.

«Towards State Regulation of Labour Migration» (Sergey Bulgak)

Labour migration is a reflection of social and economic processes in the society. The scope, dynamics and orientation of any migration systematically vary both as to import and export.

The work gives an analysis of migrants’ flow to the Republic of Belarus and also presents a geographical review of labour flows from Belarus to other countries including their profession structure.

Official employment figures (labour contracts in force) are merely the tip of the iceberg as the majority of labour migrants immigrating into the CIS countries work there without an official permit and those immigrating to other countries get tourist visas and find jobs themselves.

In the late 1990s student migration — a new kind of job migration — appeared due to the intensification of operations of certain companies dealing in employment of Belarusian students abroad during summer vacations (in the USA and some countries of Western Europe: Great Britain, Norway, Ireland).

Intellectual migration takes a special place in labour migration. Liberalization of immigration and entrance regimes, abandoning of the «closed» scientific communities brought about an increase of  academic trips and attachment projects of scientists, university teachers and postgraduates to universities abroad and of students study programmes at foreign universities and research centres. Global experience proves that such temporary visits abroad in some cases could be treated as the first step for a specialist to leave in future for permanent residence abroad. In other words, temporary intellectual visits may lead in future to the phenomenon called the «brain drain».

The author believes that the state as an economic regulator of labour migration has to determine the aims and national priorities and to develop the mechanism of management of these processes as well as to choose regulators providing the systemic effect.

«Comparative Analysis of Productivity of Labour and Population Welfare Level in Belarus and Other Countries» (Fedor Khodorkin)

The necessity to solve the issues of the population welfare in industrial countries led their leaders and society to the conclusion on the necessity of combining of the advantages of the social state and market economy. The U.S. experience of realization of «the New Deal», i. e. social orientation of the market in the post-war Germany and other countries proves that this choice was not a mistake. High economic efficiency supported with market relations and competition, along with social justice form the basis for successful establishment of a new economic order showing high rates of growth in the economy and socio-political stability. The Republic of Belarus has also chosen this way.

The article focuses mainly on the analysis of correlations between the productivity rate and workers’ income, their social status and life expectancy. The author also draws attention to the alarming dependence of life expectancy figures on the correlation with the incomes of the richest and poorest sections of population.

«The FDI Model of the Choice of the Automobile Industry Placement» (Oleg Anisko)

The theoretical three-component model for the international choice of enterprise locations based on collected location decisions in CEE and CIS countries for automobile industry is verified. The most important factors of location choice for each component in the model are the motives of FDI — monopolistic advantage, chances of privatization;  the advantages of location — the labour, protectionism, potential of the automobile market; the specifics of the company — the specifics of the management, willingness to take risks, corporate strategy of internalization.

This publication was prepared in the framework of EU TACIS — UNHCR project “Strengthening the National Asylum System in the Republic of Belarus”

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