Journal of International Law an International Relations


Journal of International Law and International Relations 2005 — N 3


International Law

Migration and Refugee Issues

The Concept and Classification of Migration — Anna Pokhlebayeva

International Organizations

New Aspects in Creation of the Area of Freedom, Security and Justice in European Union: the 2005 Prum Convention — Vladzimir Astapenka, Dmitry Loisha

International Responsibility

Mechanism of Application of Countermeasures: Regulation within the Framework of International Law Commission’s Draft Articles on State Responsibility — Anna Antikhovich

International Private Law

The 1994 General Agreement on Trade and Tariffs and Legal Regulation of the International Merchandise Trade — Nikolay Akimov

International Relations

The FRG’s Policy Towards Ukraine in 1990—1994: Main Trends — Vladislav Froltsov

Cooperation of the UN High Commissioner for Refugees and Belarusian State Authority Bodies (1992—2003) — Andrey Selivanov

Genesis of China-South Korea Relations in the Second Part of the 20th Century — Mikhail Osadchy

The Macedonian Factor in International Relations on the Balkans (1912—1936) — Andrey Yevdokimovich

Activities of the State Government Bodies of the Vitebsk Region During the 1919—1920 Polish-Soviet War — Tatiana Ivanova

Organization of Diplomatic Service in the Great Duchy of Lithuania at the End of 14th—Beginning of 16th Century — Viktar Tishchanka

Belarusian and Foreigh Historical Studies of Western Belarus Issues (1930s—2000s) — Ludmila Drozhzha

Documents and Materials

Covering of Refugee Problem in Mass Media (the Materials of the International Seminar from April, 27—29, 2005) (only russian)

Temporary Protection Measures for Asylum Seekers (the Materials of the International Seminar from May, 19—20, 2005) (only russian)

International Experience

Statutory State Service and Peculiarities of Civil Servants’ Activity — Alfonsas Laurinavicius

International Economic Relations

Development of Foreign Policy Dialogue and Economic Relations between Belarus and China — Andrey Filipyuk

Market Structure and Regime Evolution in China — Din Zhudzhun

Evolution of Currency Crisis Theory: Three Generations — Ihar Smazhenny

Evolution and Mechanisms of Stimulation of Export Activities of South Korean Enterprises at Various Stages of Economic Development — Gil Kyun Suk


English Summaries

«The Concept and Classification of Migration» (Anna Pokhlebayeva)

The article is devoted to the theoretical questions of the system of concepts in the field of migration. Up to now there has been no clear unified concept of «migration» either in the international law doctrine or in the UN Charter, though the 1948 Universal Declaration of Human Rights, for example, fixes «the right to freedom of movement and residence» (Art. 13) as one of the main human rights. The international law doctrine is not noted for uniformity either.

The analysis of the concepts «migration» and «international migration» helps to identify the specific features of this phenomenon. They are stressed by most scholars and include firstly the very fact of movement and crossing the border and secondly the change of the place of residence. However, neither concept reflects the specific character of international legal nature of this phenomenon. They omit the important aspects related to its legal regulation and the legal status of the migrant.

Summing up, the author introduces the following concept of migration. International migration is the movement of individuals from the territory of one state to the territory of another, irrespective of its form, causes and time; it entails the changes in the legal status of these individuals, regulated by the law of the host country and the principles of international law from the time of crossing the border.

«New Aspects in Creation of the Area of Freedom, Security and Justice in European Union: the 2005 Prum Convention» (Vladzimir Astapenka, Dmitry Loisha)

The Convention on stepping up cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration was signed on May 27, 2005 in Prьm (Germany). The contracting parties are all 5 states-founders of Schengen co-operation, as well as Austria and Spain. Therefore the Prьm convention has already acquired a second name: Schengen-III.

The Convention provides for closer co-operation in area of gathering, storing and processing the data (DNA, fingerprints, vehicle registration data) on the basis of the «principle of availability of information», a new phenomenon on the European continent. Police co-operation under the Convention provides for every joint effort of the police authorities, even joint patrolling and carrying out police duties on the territory of another contracting party of the Convention. The Convention creates the legal grounds for employing «sky marshals» on board of airplanes. The Convention also goes far beyond other legal acts to provide for joint operations of the contracting parties in fighting illegal migration; in particular, in the areas of information exchange, forged documents detection and conduct of joint repatriation operations.

Entry to force of the Prьm Convention and further possible integration of its provisions in the legal framework of the European Union will have an important impact on the prospects of integration of the EU Member States in the area of Justice and Home Affairs.

«Mechanism of Application of Countermeasures: Regulation within the Framework of International Law Commission’s Draft Articles on State Responsibility» (Anna Antikhovich)

The present article is devoted to the legitimacy of application of coersive measures by individual states in response to a breach of international law. The article deals with the concept of countermeasures, identifies the differences between countermeasures and other kinds of coersive measures, analyses the conditions of legitimacy of such measures in the international relations. To confirm the provisions, stated in the article, the author uses not only the conclusions of the United Nations International Law Commission, but also examples from the International Court of Justice practice and the international law doctrine.

 «The 1994 General Agreement on Trade and Tariffs and Legal Regulation of the International Merchandise Trade» (Nikolay Akimov)

The article focuses on exploration of the legal structures of the 1947 GATT and the 1994 GATT. The author analyses the prerequisites and stages of the process of formation of the GATT legal system and reveals the regular character of the GATT transformation into the WTO.

The article notes the crucial importance of the 1994 GATT in the international merchandise trade. The legal structures of the two GATT are given in the form of charts for the readers’ convenience and the comparative analysis.

The author states that the new features in the 1994 GATT are determined by the creation of new legal mechanisms to regulate international trade in goods, the aim of which is to counteract the introduction of latent non-tariff barriers in international trade and to improve the mechanisms previously existing within the 1947 GATT.

Certain contradictions in the 1994 GATT are pointed out in conclusion. They concern the non-tariff measures to limit the distribution of domestic and foreign goods. The necessity of further development of the WTO legal structures for the regulation of the non-tariff limitation sphere is also indicated.

«The FRG’s Policy Towards Ukraine in 1990—1994: Main Trends» (Vladislav Froltsov)

The early 1990’s German foreign policy concerning Ukraine is analyzed in this article. The framework of the research is defined taking into account such key events in modern German and Ukrainian history as the rebuilding of unified Germany and the 1990 Independence Declaration of Ukraine, as well as national elections in both countries in 1994. As a result, it is necessary to point out the following purposes of the federal policy regarding Ukraine during this period: striving to remove Soviet nuclear weapons from its territory and to stop the Chernobyl station functioning, readiness to create an autonomy for the German minority in the South of Ukraine according to the proposal of Kyiv, considering Ukrainian economy as a market for German goods and investments. This post-soviet state was evaluated as the main political partner in the CIS (together with Russia), which influenced the general foreign policy strategy of the FRG in the region.

«Cooperation of the UN High Commissioner for Refugees and Belarusian State Authority Bodies (1992—2003)» (Andrey Selivanov)

The article reviews the cooperation between the UNHCR and Belarusian state authority bodies to form the national system of refugee protection, shows the process of evolution of the law on regugees and also describes technical assistance to the Belarusian state rendered by the UNHCR.

The author believes that the UNHCR activities in Belarus can be divided into three stages.

At the first stage (1992—September 1995) this structure of the UN system had no direct representation in the country. Its activities were carried out by the the UN Office in Belarus. However, this fact did not prevent the Office from playing an active role in the formation of the Belarusian system of refugee protection. This contributed to the adoption of the  Law of the Republic of Belarus «On Refugees» in 1995 and opening of the UNHCR Office in the Republic of Belarus.

The second stage (September 1995—May 2001) is noted for the priorities which included assistance to development and introduction of national legislation as well as to the formation of an efficient system of refugee status definition, rendering of direct social and legal assistance owing to NGOs as the UNHCR partners, financial and technical support to Belarusian state authority bodies and public institutions. This culminated in Belarus acceding to the 1951 Convention and the 1967 Protocol.

The third stage of the UNHCR activities in the Republic of Belarus (May 2001—2003) was marked by the support to the Belarusian state in the completion of the system of refugee protection, harmonising national legislation and procedures in the sphere of granting the status with international standards, the support of their implementation aiming to provide real protection and adaptation in Belarusian society.

«Genesis of China-South Korea Relations in the Second Part of the 20th Century» (Mikhail Osadchy)

The author considers the reasons for the emergence of mutually antagonistic policies determining the nature of China-South Korea relations for more than forty years.

He carries out the analysis of the international relations in North-East Asia in the 1940s—1960s in the context of creation of a bipolar structure in the form of two opposing coalition systems — «the small North triangle» (the USSR—China—North Korea), «the small South triangle» (USA—Japan—South Korea) and later, the «tripartite structure» of the USA, the USSR, China — and explores the influence of these paradigms of international relations on the formation of policies in China and South Korea towards each other.

The author gives a description of the basic provisions of the new foreign policy approach of Kim Jong-Pil’s government and of Park Chung-hee, the President of the Republic of Korea towards socialist countries including the USSR and China, their approach to the separation of economic and political issues in the development of ties between South Korea and China. At the same time the author reveals the reasons for the lack of any significant progress in the China-South Korea relations despite the evolution in the official Seoul position.

Special attention is given to the questions of origin and development of non-political relations between China and South Korea, the intensification of informal contacts in the form of joint sports events, «people’s diplomacy» and also to the description of the events that stimulated the development of dialogue between the two countries.

The author presents the analysis of «The Joint Communique on Establishing Diplomatic Relations between the People’s Republic of China and the Republic of Korea from August 24, 1992» as the foundation for the principles of the current interstate relations development.

In conclusion, the article evaluates the significance of normalization of relations between the People’s Republic of China and the Republic of Korea for both countries and for the progress in the dialogue on the settlement of issues on the Korean peninsula and the formation of stable political, trade and economic situation in North Eastern Asia.

«The Macedonian Factor in International Relations on the Balkans (1912—1936)» (Andrey Yevdokimovich)

The Macedonia problem is shown to be the principal aspect of the growing diplomatic fight for political mastery on the Balkan peninsula. The events are analysed against a wide historical background and are considered within Yugoslav-Bulgarian-Greek territorial dispute, mainly due to Macedonia having its own history. The article reveals and analyses the development of Soviet views upon the problem of Macedonian regulation and its place in Soviet «revolutionary making» diplomacy in the Balkans.

«Activities of the State Government Bodies of the Vitebsk Region During the 1919—1920 Polish-Soviet War» (Tatiana Ivanova)

Basing her study on the archive documents, the author considers the situation in the Eastern Belarusian lands and the Vitebsk region in particular in the conditions of the 1919—1920 Soviet-Polish war. The specific nature of this status lies in the fact that some of the region districts were occupied and the rest were near the front-line. The article shows the changes in the structure and activities of local state executive bodies, reveals their role in the organization of the field military building works, the evacuation of material goods and in the supply of the Western front with all necessary resources. It draws attention to the negative moments in these activities: the weakness of district top executives during the attack in the autumn of 1919, insufficient provision in material goods, dependence on the central authorities in Russia in almost all fields of activities. The author also gives a description of the situation in the Vitebsk region after its occupation by Polish troops and evaluates the damage to specific districts.

«Organization of Diplomatic Service in the Great Duchy of Lithuania at the End of 14th—Beginning of 16th Century» (Viktar Tishchanka)

Using historic literature and a wide range of sources the author investigates organizational structure and activities of the diplomatic service of the GDL at the end of the 14th to the early 16th century. He describes the procedure of decision-making in the diplomatic sphere, the prerogatives and credentials of the Grand Duke and the Rada (Council) in the realization of the country’s diplomatic activities, shows the strengthening of the role and influence of the Rada noblemen in the considered field due to the weakening of the monarch’s power, examines the titles used by the leader of the Belarusian-Lithuanian State in international relations, enumerates the diplomatic partners of the GDL and the main directions of its foreign policy, defines the status, functions, gender hierarchy, ways of organization and staffing of the embassies, their internal structure and maintenance. The author also gives a vivid picture of the reception of foreign ambassadors and diplomatic ceremonies,, characterizes negotiations and conclusions of international treaties, reveals ideologic argumentation used by the GDL diplomats and gives examples of the embassy documents with special attention to the language of diplomatic correspondence.

The author came to the conclusion that the GDL of the end of the 14th—the early 16th century had a developed ambassadorial ceremony and the diplomatic service had a complex diversified structure headed by the Grand Duke and the Rada. He believes that the Duchy’s diplomatic service showed correlation with the world standards and the level of the country’s development. Despite the absence of a special diplomatic governmental body, the service coped with all tasks entrusted to it.

«Belarusian and Foreigh Historical Studies of Western Belarus Issues (1930s—2000s)» (Ludmila Drozhzha)

The article analyses the formation and development stages in the Belarusian historiography for Western Belarus (1921—1939) issues of the Soviet and post-Soviet periods. The author suggests to distinguish a new period in study of the Western Belarusian issues by the  Belarusian historians at the beginning of the 1990s, due to the changes in historical research methodology and the establishment of the national concept of historiography.

«Statutory State Service and Peculiarities of Civil Servants’ Activity» (Alfonsas Laurinavicius)

Officials who work in statutory state services have a special social status. The state as such is judged by officials’ service activities. Since long ago, the notion that the bureaucracy (institutions of strict order) is supposed to be the backbone that maintains a strong model of the state and nation. Thus, the development of society, the challenges of civilisation and culture first of all affect the issue concerned. Foremost, this peculiarity is determined by the unity of the administrative and social service in a democratic society. The notion of the statutory state service includes not only public administration but also the requirement to perform respective social services. On the other hand, many other governmental and non-governmental institutions render social services. That is why it is necessary to analyse the services’ differences and modes (the activity, its control and evaluation criteria), in which these services are rendered. Thus, modern-day career statutory services have to be analysed in a general context of state institutions serving the society, by giving grounds for statutory officials’ preparation, for importance of service conditions- by determining the notion of a statutory official in the view of social sciences, for example- the law, political sciences, ethics).

The article does nor aspire to give answers to modern- day questions, but it tries to put forward hypotheses, to encourage the reader to get involved into scientific research, and to look for answers, how to solve the problems through the methodology formulated by the classics of public administration. Since the scope of the article is limited, the author has focused on the analysis of the state service staff forming and management problem in the historical aspect, he also tries to reveal one of the peculiarities which affects the singularity of statutory officials’ status — i. e., the methodology of service activity’s control and evaluation. The author of the article also hopes to make the reader interested in the topic of his research, therefore, arguments are intended for hypotheses to be put forward and for the scientific analysis of statutory services’ administration to be carried out.

The personality evolves if three «parties» are involved in the process: the subject of the activity, conditions of the activity, and the third «party» — the activity itself. The «parties» in the article are analysed using theoretical sources and the experience of those democratic countries where statutory services are separate from the influence of political factors. They perform very important functions of the state management; therefore, we must agree that the management of these services depends to a great extent upon the general state policy, which is determined in the Constitution of the State. It is an important factor, which has to be regarded when solving internal problems of these services, when designing the guidelines for the personnel policy. Another factor of importance is a speedily growing exact requirements of the society for the professionalism of civil servants, for their competence in maintaining the tendencies of democratic society development. This changes the content of the service operation, and presupposes a diversity of service activity control. The article formulates the view that the activity conditions, the peculiarities of these services functions require at the same time a non-standard approach towards the officials’ activity, they also require special modelling of their activity motivation and incentives.

«Development of Foreign Policy Dialogue and Economic Relations between Belarus and China» (Andrey Filipyuk)

The foreign policy of the People’s Republic of China is directed at raising China’s role in the international life and creation of favourable conditions for its economic development.

China steadily realizes the concept of Deng Xiaoping, adhering to the independent foreign policy policy, advocating territorial integrity and sovereignty. China’s leadership emphasizes that in its international politics China supports peace, stays outside all unions and blocs and seeks good neighbourly relations with the bordering countries.

The Republic of Belarus and the People’s Republic of China can boast a high level of cooperation. China is the main political, trade and economic partner of Belarus in Asia.

The decisive role for the formation and evolution of bilateral political cooperation between the Republic of Belarus and the People’s Republic of China was played by the agreement in their opinions on a wide range of international issues and mutual support in the international organizations.

The countries have established a significant legal treaty base for the bilateral relations involving different aspects of cooperation. The existing treaties, programmes and agreements underlie the formation, development and strengthening of ties between the Republic of Belarus and the People’s Republic of China, thus providing their stable development in the long-term. Trade and economic, scientific and engineering, military, educational, cultural cooperation was fixed in various documents.

China is indeed developing rapidly and showing various high indeces of economic growth. While characterizing the current economic situation in China, one can point out high investment and export growth, the shift of consumption pattern towards house-building, automobile and communications markets, and structural changes in the economy related to the latest technologies and the growth of standards of living.

The economic boom in China from year to year creates real prerequisites for the successful work of Belarusian economic subjects in China. However, Belarusian export is currently almost insignificant on this promising and profitable market. The author states that it is unfitting for Belarus with its export oriented economy to have the existing level of cooperation with this leading Asian state. Moreover, it is happening against the background of impressing economic growth rates in China. In this connection, the author considers it advisable to take into account the following basic aspects when realizing the strategy of cooperation with China:

1) the development of infrastructure of trade and economic relations: involvement of banks and insurance companies of the two countries to improve the relations in the payments sphere, the crediting of deliveries of complex machinery and equipment with a long production cycle, financing of investment projects, the structure of transportation, introduction of new forms of customs and sanitary control, development of e-trade and applied information technologies;

2) participation of Belarus in the programmes of economic upswing of the China western provinces;

3) development of direct trade with China without any mediators on the basis of expansion of joint trade infrastructure: exhibitions, offices, trade and service networks;

4) development of e-trade because of long distance between two states;

5) radical change of awareness of Belarusian exporters about China as a country manufacturing high-tech produce;

6) while focusing its main efforts on attracting foreign capital, China gives ever greater importance to the investment expansion. The government elaborated a special strategy of foreign market entry for the Chinese companies and manufacturers;

7) Chinese companies also enjoy ample opportunities for strengthening their positions on the Belarusian market. Primarily, this is connected with supplying equipment to modernize Belarusian industry, competitive both in prices, which are reasonable, ad quality. Domestic appliances and consumer goods in addition to those produced in Belarus are also sold.

The Belarusian strategic Programme of Intensification of Trade and Economic Cooperation with the People’s Republic of China in 2004—2008 contains actions to increase the volume of export of Belarusian enterprises to China, to develop commodity distrubution network, exhibitions and fairs, to create of joint ventures on China’s territory, to attract Chinese investments and financial aid, and to develop further regional cooperation with Chinese provinces. The Programme implementation will lead to the realization of the tasks on turnover growth between Belarus and China.

«Market Structure and Regime Evolution in China» (Din Zhudzhun)

The way the regime and market structure in China are changing demonstrates the close connection between the two. Essentially, they both evolve towards the optimal Pareto value. The analysis of how the changes in the property ownership law, administrative sanctions law, fiscal and taxation law and legislation system affect the evolution of market structure from the point of view of official changes of the regime shows that the ideal model of the regime changes and market optimisation is the balance between them. The regime renovation is the key aspect of optimisation of market structure of China.

In this connection the article attempts to analyse the intrinsic relation between these two processes and their interaction, to find the ideal model of the market structure optimisation through the regime change and it underlines that the key moment for the market structure optimisation in the renovation of the regime.

«Evolution of Currency Crisis Theory: Three Generations» (Ihar Smazhenny)

The theory of currency crisis which has been developing actively over the last two decades is a theory of crises of balance of payments. Aggravation of the balance of payments state appears to be one of the main reasons for a currency crisis. A currency crash, according to the IMF methodology, is the fall of the nominal rate of the national currency by 25 % or more.

Research in currency crises started with a «canonical» model. The canonical model was developed in a work published in the middle of the 1970s by Salant and Henderson. The canonical model of a currency crisis was offered by Krugman and improved by Flood and Garber. This model considers worsening in fundamentals as the main reason of a currency crisis.

The «second generation» models (for example, Obstfeld’s) are based on a correlation of reasons to reject and to protect a fixed exchange rate with the price of this protection. In the second generation models at the moment when a crisis begins, the activity of market operators affects it more than objective reasons. That is why crises here are self-fulfilling with a multiple equilibrium, depending on the «mood» of investors.

The «third generation» models were created after the Asian crisis, which was difficult to explain by previous models. Most of the recent attempts to produce such a model have argued that the core of the problem lies in the banking system or, putting it more precisely, in overlending. Meanwhile, an alternative line of work attempts to explain currency crises as the byproduct of a bank run, as a self-fulfilling loss of confidence. There are also some other models which consider the role of companies’ balance sheets in determining their ability to invest, and that of capital flows in affecting the real exchange rate.

«Evolution and Mechanisms of Stimulation of Export Activities of South Korean Enterprises at Various Stages of Economic Development» (Gil Kyun Suk)

The article reveals the mechanisms of stimulation of export activities of South Korean enterprises at various stages of economic development. The author shows the state’s role in the formation of the foreign policy strategy and its priorities, gives characteristics of the system of economic and non-economic measures of influence on the South Korean enterprises to achieve the chosen strategy.

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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