Journal of International Law an International Relations


Journal of International Law and International Relations 2005 — N 4


International Law

International Organizations

Eurojust: General Legal Analysis — Vladzimir Astapenka, Dmitry Loisha

Franchising in the Law of the European Union — Vera Korzun

The Limits of Harmonization of the European Union Tax Law — Alexey Lashuk

Some Aspects of Legal Regulation of Private Employment Agencies in the European Community — Yaraslau Kryvoi

International Private Law

Legal Norms Governing the Forwarder’s Liability in the Legislation of the Republic of Belarus, the Russian Federation and Ukraine — Marianna Zhumina

A Copyright Law Protection Object — Andrey Batenin

International Relations

UNHCR’s Policy Developments in the Context of the Broader Migration Movements — Ilija Todorovic (only russian)

Some Aspects of Customs Legal Relations in the CIS — Vitaly Pilyutkevich, Anatoly Sirotsky

The Main Causes, Prerequisites and Factors for the Spread of Terrorism in the 21st Century — Vitaly Voronovich

Formation of the National System of Refugee Protection in the Republic of Belarus: Legal-Organizational Aspects — Vadim Samatyia

Ukraine in the Context of Integration into the European Security Structures — Yury Krasnopolsky

Territorial and Border Dispute Issue in Contemporary Sino-Indian Relations — Anton Dudaronak

Diplomatic Service of the Grand Duchy of Lithuania in the Late 16th Century — Syargey Lashkevich

Documents and Materials

Nexus between Asylum and Migration (the Materials of the International Seminar from September 16, 2005) (only russian)

Return and Readmission in Accordance with International Standards (the Materials of the International Seminar from December 5, 2005) (only russian)

International Economic Relations

Belarus and the European Union: New Cooperation Conditions — Galina Gavrilko

Non-Tariff Methods of Regulation of Foreign Trade within the WTO Framework — Elena Davydenko

Forecasting of Consequences of Belarus’ Entering the WTO for the Pharmaceutical Market — Elena Kryukova

Modern Motivations of Development of Ecological Tourism and the Mechanisms of Its Regulation — Olga Mozgovaya


English Summaries

«Eurojust: General Legal Analysis» (Vladzimir Astapenka, Dmitry Loisha)

The creation of Eurojust signifies the beginning of a new era of co-operation of the Member States of the European Union in the area of Justice and Home Affairs. Integration processes in the area largely depend on political decisions and are closely associated with state sovereignty issues. The co-operation within EU developed gradually, step-by-step, and the integration in the area might peak with the creation of the European Prosecutor’s Office. It is already clear today that integration is heading in this direction and Eurojust is declared to be an important body paving the way for the European Prosecutor’s Office or being the main institution for co-operation in the area of Justice and Home Affairs in case it would take a long time to create the European Prosecution.

In the present article the authors analyse the integration process, which led to the creation of Eurojust and also carry out analysis of the acts underlying the creation and activities of Eurojust. The accent in the article is made on the analysis of competence, jurisdiction and Eurojust controlling mechanisms. An important place is given to the study of the personal data protection mechanism, such a mechanism being a logical consequence of the simplification of inter-state data exchange and personal data processing, which is subject to protection in every legal system of the EU and at the level of the European Union as well.

«Franchising in the Law of the European Union» (Vera Korzun)

The European Union experience of the legal regulation of franchising presents particular interest for academic research, and could be applied in practice in the Republic of Belarus. At the EU level the optimal way of the franchise legal regulation was established. The European law provides a general framework of the franchise contracts evaluation in the light of the EC competition law, and only fixes the list of contractual provisions that can not be included in the franchise agreements because of their severe threat to the competition on the relevant market.

The author advocates that according to Belarusian legislation franchising is not a means of attracting foreign investments, but it should rather be regarded as a way of attracting national investments. Franchise agreements by their nature will always lead to the restrictions of the competition, and as such can be challenged on the basis of the competition law violation. The problem of the potential breach of the competition law provisions by the franchise contracts shall be taken into account by the Belarusian legislator.

«The Limits of Harmonization of the European Union Tax Law» (Alexey Lashuk)

Now, over 12 years after signing the Maastricht Treaty and full abolishment of customs duties and non-tariff restrictions, it is the level and quality of taxation on the territory of the EU member-states that influence greatly the business activity within the union. The article above considers the current state and the limits of European tax harmonization development. Separate treatment is given to harmonization in the sphere of indirect and direct taxation in the EU member-states.

Today the EU has achieved large-scale harmonization of indirect taxes (the VAT, excises and other turnover taxes). All member-states fixed a single system of levying the VAT unifying the calculation process and tax payment based on the French pattern. This unification has become the main prerequisite for the substitution of the member-states’ dues by the share from the VAT on the member-states’ territory paid into the EU budget.

The EU law in the sphere of harmonization of direct taxes (the income tax for individuals, the profits tax for legal entities etc.) deals mainly with cooperation between the national tax bodies in the sphere of international tax evasion and avoiding double taxation.

Currently the European Union has harmonized law in the sphere of indirect taxes. However, it has only a fragmentary legislative base in the sphere of direct taxes. European experts and politicians have not come to an agreement about the limits and expected results of harmonization of direct taxes so far.

«Some Aspects of Legal Regulation of Private Employment Agencies in the European Community»  (Yaraslau Kryvoi)

The article is devoted to legal regulation of private employment agencies in the European Community and on international level. Temporary agency work can be defined as work performed by an individual with certain qualification, hired and offered by temporary employment agency (employer) to work to the benefit of and under direction of a third party (user enterprise). This kind of work is characterized by legal dualism — on the one hand, the labour contract is concluded with the agency, on the other, the employee actually works for the employer who has concluded labour contract with the agency. Temporary agency work today occupies a noticeable share on the labour market in Western Europe and rapidly develops in Central and Eastern Europe.

It is widely accepted in Western Europe that temporary agency work can play a positive role in the reduction of unemployment and in the integration of the most vulnerable social categories, such as young specialists, individuals who need to combine jobs with other activities and other. The current Belarusian labour legislation is not ready to regulate the above-mentioned relations, since it has no necessary exceptions from the existing legal labour mechanisms for the borrowed labour and does not admit three-party contract. The author believes that it is necessary to study the foreign countries experience of application of special legal norms aimed at regulation of these agencies and to introduce necessary changes in Belarusian labour legislation. Temporary work agencies could play an important role in decreasing of unemployment and tackling some of the problems Belarus is facing today.

«Legal Norms Governing the Forwarder’s Liability in the Legislation of the Republic of Belarus, the Russian Federation and Ukraine» (Marianna Zhumina)

There are no binding international legal instruments on the freight forwarding, that is why attention is paid to the national law on this issue. The author of the article analyses differences in current legislation of the Republic of Belarus, the Russian Federation and Ukraine which governs the grounds and types of the forwarder’s liability for the failure to perform or the undue performance of his duties under the freight forwarding contract. As services under the forwarding contract are connected with the carriage of goods the author also deals with such issues specific to the international carriage of goods as monetary limits of the forwarder’s liability, the period when the forwarder is liable for the goods and the short limitation period to start a legal action. Having studied the rules of legislation of the said countries the author comes to the conclusion that the current legislation of the Republic of Belarus and the Russian Federation, when compared to the legislation of the Ukraine, offers to the forwarder more opportunities to defend his interests. In certain cases the forwarder can limit his liability under the contract and even be discharged of the liability. Besides, under the legislation of the Russian Federation the client is obliged to give written notice of loss or damage to the goods before starting legal action in court, the limitation period for legal action on the forwarding contract being 1 year. Under the law of Ukraine the client has a right for full compensation of losses and the limitation period is in general, 3 years.

«A Copyright Law Protection Object» (Andrey Batenin)

The object of the investigation includes legal relations arising during the civil law protection of the authors’ rights to scientific, literary and artistic works.

The subject of the investigation is exclusively the author’s right as the right of the rightholders to protect their own rights to the work, as guaranteed by the law.

In the course of the research there has been developed a new approach to the legal protection of the objects covered by copyright. This method is based on the formation of the legal mechanism aimed to ensure the complete protection of the objects to copyright on the basis of the single universal system existing in the sphere of their usage.

Provisions and conclusions contained in this study can be used both for the further development  of academic concepts of the legal nature of the copyright law by academics and practising experts.

«Some Aspects of Customs Legal Relations in the CIS» (Vitaly Pilyutkevich, Anatoly Sirotsky)

Cooperation in customs issues, first of all, with the neighbouring countries and with the states of economic or political priority for the Republic of Belarus is realized in accordance with the norms fixed in international agreements.

The Republic of Belarus saw a new stage of international cooperation in the customs sphere after the formation of the sovereign state.

Due to the participation of Belarus in the international cooperation in the customs sphere its customs content is becoming more civilized and integrated into global processes. It is important to stress here that the main policy of cooperation of Belarus with foreign countries in this field is carried out through integrational ties. A number of agreements on specific aspects of foreign trade and cooperation in customs matters was adopted.

The evolution of the CIS saw several stages. More than a decade of relations in the Commonwealth can be described on the whole as a time of forming of close ties between certain states. On the other hand, the CIS suffers a crisis today and the majority of the plans on integrational cooperation between the CIS member-states have turned out to be unrealistic.

The long-term plan of integrational development of the CIS envisaged formation of a Customs Union in October 1994 for all countries as well as the Payments Union by the end of that year. But these decisions have not been realized yet. In the authors’ opinion, political factors, strong opposition to integration in the newly independent states and absence of some supranational body played a negative role in the establishment of efficient cooperation.

Thus, there are no objective conditions in the CIS for real integration with such forms as a free trade zone and a customs union.

However, despite the differences in national legislation and levels of economic development some integrational opportunities remain. The Commonwealth has a large potential for sustainable and dynamic economic development.

«The Main Causes, Prerequisites and Factors for the Spread of Terrorism in the 21st Century» (Vitaly Voronovich)

The article considers the concepts of security and vital national interests within the framework of international relations theory. It also explores the main causes, prerequisites and factors of the spread of terrorism as the major threat to security at the global, regional and national levels in the 21st century. It has been observed that terrorism gets especially active when society undergoes a severe crisis (in particular, a crisis of ideology, the state legal system and an acute aggravation of social and economic problems). In the author’s view, the spread of terrorism is also affected by globalisation and numerous migration flows. There is also distinct connection between terrorism and drug trafficking which is now clearly traced.

Four most essential conditions engendering terrorism are identified: information society emergence, the influence of the technological environment of human existence, the futuroshock accompanied by blurring of traditional society structures and real problems which emerge in the course of historical development and have political, cultural and social dimensions.

The author analyses the possibilities and options of effective combatting this negative phenomenon and gives priority to the combination of the national structures efforts and international cooperation, with special attention paid to Belarusian antiterrorist policy.

«Formation of the National System of Refugee Protection in the Republic of Belarus: Legal-Organizational Aspects» (Vadim Samatyia)

The author considers basic aspects, both organizational and legal, of the formation of the national system of refugee protection in the Republic of Belarus. The article can be divided into three parts in respect to composition and topics: 1) the UNHCR activities in search of long-term decisions in the sphere of migration; 2) the interaction of this international organization with Belarusian state authority bodies on development and adoption of legal and legislative acts connected with refugee protection in the Republic of Belarus; 3) perspectives of further cooperation between Belarus and the UNHCR within the European neighbourhood policy and formation of the national system of refugee protection in the Republic of Belarus.

«Ukraine in the Context of Integration into the European Security Structures» (Yury Krasnopolsky)

Given the adoption by Ukraine of a national strategy aimed at full-scale integration into the Euro-Atlantic security structures, any assessment of the interaction of Ukraine with the North Atlantic Alliance as the leading Euro-Atlantic structure at present determines the necessity of a systemic study of the nature, content and mechanism of the formation of foreign policy goals of the Ukrainian state. The relevance of the publication lies in the comparative analysis of problems and prospects of Ukraine forming a strategy of Euro-Atlantic integration as a means to ensure security and sovereignty of the state.

The article analyses a number of problems Ukraine is facing while seeking to implement its Euro-Atlantic foreign policy. The author makes an attempt to characterise both the external and the internal situation of Ukraine which is of potential impact on the rapprochment with NATO. The article is based on the official materials of the Ministry of Foreign Affairs of Ukraine and statements of important political figures. It explores both the genesis of the relations between Ukraine and the Alliance and the contemporary cooperation between them.

«Territorial and Border Dispute Issue in Contemporary Sino-Indian Relations» (Anton Dudaronak)

Asian security in many respects depends on the internal conditions and foreign policy of the leading regional powers — especially of China and India. The maintenance of peace and stability is possible only with the coordinated actions of both countries, which possess the largest Asian economic and military potential. But there are some difficulties, which preclude the full-scaled cooperation of these nations. One can mention that the basic reason of Sino-Indian disagreement is the unsettled territorial-border dispute. The opposite views of these countries on the issue of the belonging of some border areas create tension not only in Sino-Indian relations, but also in Asian region as a whole. The unresolved territorial-border dispute has an influence on stability in Tibet, Kashmir, Nepal, Sikkim, Bhutan and Arunachal Pradesh. These territories are zones of direct contact of Chinese and Indian strategic interests.

The expansion of the CPR’s influence in Tibet, the divergence of India’s, China’s and Pakistan’s opinions on the Kashmir issue, the military and strategic presence of China in Ladakh, the Chinese statements about the no-demarcated Sino-Indian border led to the armed clashes between China and India in 1962 and in fact had frozen their bilateral relations for several decades. The inclusion of several Himalayan territories, in particular Sikkim and North-Eastern Frontier Agency (Arunachal Pradesh), by India with the status of the state instead of the union territory created more controversy. Indian and Chinese contradictions on the Tibetan and Kashmir issues, on the problem of territorial status of Sikkim and Arunachal Pradesh have made a direct impact on the settlement of the Sino-Indian border problem. All these vexing questions have a close interdependence. Therefore, resolution of any of them, would contribute to the normalization of the situation in general. The significant steps on the Sino-Indian intergovernmental bridging, including the border problem, were undertaken by Indian and Chinese leaders in the early 1990th, when both sides renounced mutual interference in the domestic affairs of each other and bringing any external powers for the solution of controversial points. The main attention of the Chinese and Indian sides is drawn today to confidence building measures and to the establishment of closer contacts in the areas, which do not raise controversy between these countries.

«Diplomatic Service of the Grand Duchy of Lithuania in the Late 16th Century» (Syargey Lashkevich)

The author discusses the diplomatic service of the Grand Duchy of Lithuania in the late 16th century, studies the influence of the king of the Rzech Pospolyta, of the Soym and the hetmans on the foreign affairs of the country, reveals the essentials of the work of the Chancellery and the embassies of the GDL and raises the issue of the distribution of the foreign affairs powers between the GDL and Poland.

For a long time historical scholarship has considered that the diplomatic service of the Duchy ceased to exist after the 1569 Union of Lublin was signed. The diplomatic activities of the GDL in the second half of the 16th century and the first half of the 17th have been identified with the foreign policy and diplomacy of the Kingdom of Poland, thus emphasizing the dependent character of the GDL’s foreign policy.

According to the author, the relations between the GDL and Poland after the Union of Lublin remained essentially what they had been during the personal unions up to 1569. Separate governments, including the foreign affairs and finance bodies, separate armies and, most importantly, separate territories were retained. Each of the Rzech Pospolyta’s states defended its own territorial borders separately and the most important problems of foreign affairs often remained to be settled respectively by the GDL or Poland as their own. The Duchy pursued active and independent foreign policy during this period. But the Union with Poland made certain amendments to the foreign affairs of the country. Poland and the GDL, ruled by the same monarch, had to coordinate their actions on the international arena.

The author arrives at the conclusion that the organisation of the Rzech Pospolyta’s diplomatic service took into consideration the dissimilar interests of the Crown and the Duchy in foreign affairs and the different vectors of their geopolitical interests. At the same time, as the Polish magnates’ positions were strengthening and the GDL aristocracy’s influence in the Rzech Pospolyta was waning, the foreign affairs activity on the whole confederation was getting centralized.

«Belarus and the European Union: New Cooperation Conditions» (Galina Gavrilko)

A new long-term strategy of cooperation between Belarus and the European Union depends both on the changes in the political system of the Republic and on the development by the EU of reasonable criteria and guidelines in the cooperation with Belarus. Political, institutional and economic changes are possible only in the long-term outlook. The nearest five years can only bring the «space of choice» rather than the «choice of space» (a union with Russia or the EU). Even without joining the EU Belarus, as a close neighbour, can seek to achieve the four freedoms (freedoms of movement of goods, services, capital and people). Following the EU enlargement Belarus can act as a strategic corridor ensuring secure transit between the growing markets.

The EU enlargement can be regarded as a significant change in the conditions of cooperation of Belarus with Eastern European countries. In fact, the country found itself in the sphere where the European market interests cross and interact.

Several variants of the long-term strategy of Belarus towards European integration can be suggested. The first variant presupposes independent movement to Europe, avoiding rigid political and economic unions with eastern neighbours and coordinating the actions with Ukraine and Moldova who are in a similar situation. The second means fostering the bilateral union with Russia and formation of a common economic space (CES) to include Russia, Ukraine, Kazakhstan and Belarus.

The finance integration processes in the CES and in the CIS could contribute to the expansion of mutual investments and, as a result, to the overall investment potential of the CIS countries. They could also raise the capitalisation level and expand the existing financial instruments. The prerequisites for this have been created by the high economic growth rate and stabilisation of prices.

«Non-Tariff Methods of Regulation of Foreign Trade within the WTO Framework» (Elena Davydenko)

The article deals with the analysis of measures of foreign trade non-tariff regulation in accordance with the WTO principles. The study focuses on technical barriers, import licensing, customs value, inspection before shipping, rules of the goods’ passing through the customs, investment and phytosanitary measures. The protective role of non-tariff barriers used by the organization member-states is increasing due to the reduction of the general level of customs tariffs as a result of the 8-round trade negotiations. Therefore, a significant place in the WTO activities is occupied by the development of single principles and rules in this sphere aimed at elimination of possibilities to use these procedures as excessive trade barriers. At the same time the WTO does not relax the requirements related to national security and directs them to the protection of life and health of people, animals, plants and the environment.

The article gives a significant place to the analysis of rules for granting subsidies, especially in agriculture and to the practice of application of antidumping measures by the WTO member-states.

The data shows that antidumping investigations are initiated both by the developed and developing countries such as the USA, the EU, Australia, Canada, Mexico, Argentina, Brazil, India etc. Main competition takes place on the market of black metals, chemical fertilizers and products, machines and electronic equipment as well as textiles.

The author concludes that a study of the theory and practice of application of non-tariff measures of foreign trade regulation by the WTO member-states will allow the Republic of Belarus to assert its economic interests on foreign markets and to protect the domestic market from excessive competition with foreign manufacturers after joining this organization.

«Forecasting of Consequences of Belarus’ Entering the WTO for the Pharmaceutical Market» (Elena Kryukova)

The object of study is one of the most export oriented and, at the same time, import dependent branches of Belarusian industry — the pharmaceutical sector.

Most important for the solution of economic managerial tasks in the country is firstly the analysis of well-known methods of forecasting of price changes on exported and imported medical products as well as development of original methods in this field. Next comes modelling of regularities of these methods development.

The expected results lie in designing (within the programme of study of consequences of the Republic of Belarus’ entering the WTO) of a model of price dynamics which would allow to evaluate and forecast the consequences of price changes for the economy.

«Modern Motivations of Development of Ecological Tourism and the Mechanisms of Its Regulation» (Olga Mozgovaya)

The author considers modern motivations of development of ecological tourism and the mechanisms of its regulation. She analyses international experience of regulation of ecological tourism development. On this basis the author makes a conclusion that efficient state administration and regulation is the main factor in establishment of the national ecotourist market. The article examines science-based techniques and methods of control of ecological tourism development in the Republic of Belarus. Another conclusion made by the author is that the lack of clear state regulation, science-based methodology and systemic approach in the sphere of regulation hinders efficient ecological tourism development in Belarus. The article gives special attention to the system of multi-level management and its practical use.

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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