Journal of International Law an International Relations


Journal of International Law and International Relations 2007 — N 3


International Law

Mirgation Issues

Legalization of Migrants in the Republic of Belarus: Some Aspects — Larisa Vasilieva, Mikhail Stankevich

Human Rights

The European Union and Human Rights — Yury Lepeshkov

International Organizations

An Internationally Wrongful Act of the International Organization and the Grounds for Its Origin — Ekaterina Vorobiova

The Rule-Making Function of International Intergovernmental Organisations: Current Trends — Elena Filimonova

Young Scholars Forum

The Origin and the Formation of Migration Law Institutes on the Example of the Correlation of such Terms as "Refugee", "Migrant" and "Foreigner" — Yuliya Parkhomova

Procedure Improvement in Granting Refugee Status in the Republic of Belarus — Anna Novikova

International Relations

Law of the Republic of Belarus on Refugees and Main Directions of its Improvement — Tatiana Mayorova

The Geopolitical Image of the Republic of Belarus: Current Position and Prospects — Leonid Gaidukevich

Relationship between the European Union and the NATO in 1990s—2000s — Denis Melyantsov

The History of Sino-Japanese Relations at the End of 19th Century — the Second Half of the 20th Century as a Barrier for the Bilateral Political Dialogue — Vitaly Tolstoy

International Experience

Environmental Policy Despite the Bush Administration: Federalism, Divided Powers, and the Last Six Years — Steven Hoffman

Young Scholars Forum

Formation of Ethnic Tolerance Among Schoolchildren and Students as a Factor of Positive Attitude to Forced Migrants — Olga Pishchik

The Role of Islamic Organisations in Integration of Muslims into Western European Society — Iliya Korogodov

International Economic Relations

International Experience of Tariff Regulation of the Domestic Market in the Countries with Small Open Economies for the Republic of Belarus — Elena Davydenko

Property Right Protection in the Light of a Country’s Investment Attractiveness — Mikhail Trafimovich

The Information Market: Its Future Both Globally and in the Republic of Belarus — Kseniya Yakushenko

International Experience

Tourism Development and Tourism Policy in Slovakia — Jana Kucerova


English Summaries

«Legalization of Migrants in the Republic of Belarus: Some Aspects» (Larisa Vasilieva, Mikhail Stankevich)

The article discusses the prospects of migration amnesty in the Republic of Belarus for foreign citizens and stateless persons who arrived after the USSR disintegration. The authors ground their opinions on the basis of academic research, including the studies of Western European experts, and suggest a number of specific measures:

1. The efforts of the state to regulate the issues concerning illegal migrants residence should be directed not only at one specific group (e. g. labour migrants) but at migrants in general with regard to certain time period (e. g. till November 2006, when the migration card came into force).

2. Priority should be given to the work on fixing (possibly, an approximate) the number of non-documented migrants from the CIS member-states and the Baltic states currently living in Belarus.

3. These migrants count can be carried out during the population census in the Republic Belarus, planned for 2009. In the authors’ opinion it is important at this stage to fix in law the guarantees for the foreigners, who would declare themselves during the census, for them not to be sued for illegal residence in Belarus.

«The European Union and Human Rights» (Yury Lepeshkov)

The article focuses on identification and legal evaluation of an integral set of norms in the sphere of human rights and freedoms currently existing within the European Union. The author attempts to analyze the legal nature of the Charter of Fundamental Rights of the EU adopted in 2000 and to compare it with the norms of the 1950 European Convention on Human Rights.

Special attention is paid to the exploration of the role and place of the European Union in the existing system of international protection of human rights and freedoms, as well as to the revealing and the following evaluation of rights and freedoms of the first (civil and political) and second (economic, social and cultural) generations that are fixed in the EU law, and to the level and volume of their legal regulation.

The author draws attention to the role of the EU institutions, the European Parliament in particular, as well as of a number of special bodies (the Agency for Fundamental Rights, etc.) in the process of formation of an independent regional system of human rights and freedoms protection within the EU. The author also revealed and analyzed the provisions of the 2004 Treaty fixing European Constitution that include human rights issues.

«An Internationally Wrongful Act of the International Organization and the Grounds for Its Origin» (Ekaterina Vorobiova)

The article considers the notion of an internationally wrongful act of the intergovernmental organization through defining its elements. Internationally wrongful act includes the subjective side, which consists of the subject, who has committed this act and attribution of that act to this subject; and also the objective side, which consist of the object of the wrongful behavior and the fact of a breach of an international obligation. At the same time, in contrast to the national law system the guilt and the damage are automatically implied in any internationally wrongful act. Elements of an internationally wrongful act of intergovernmental organization are reflected in article 3 (para. 2) of the Draft articles on the international organizations responsibility and read as follows: «There is an internationally wrongful act of international organization when conduct, consisting of an action or omission is attributable to the organizations under international law; and constitutes a breach of an international obligation of the organization». The attribution of conduct to the organization rests on the concept of functional linkage between the concrete entity (it may be an organ, an official or an agent) and the organization. In accordance with this concept significance is given not to the official determination of this entity, but to the functions it actually exercises and on whose behalf it is acting. There is a breach of an international obligation by the organization when an act of that organization is not in conformity with what is required of it by that obligation, regardless of its origin or character.

The article proves the necessity to distinguish between the grounds of international responsibility and the grounds for an internationally wrongful act. The author uses the criteria established — those of the actually acting subject — to separate the grounds for internationally wrongful acts into two groups: the grounds, connected with the actions of the organization itself (direct grounds) and the grounds, connected with the actions of another subject (derived grounds).

«The Rule-Making Function of International Intergovernmental Organisations: Current Trends» (Elena Filimonova)

The article is devoted to the rule-making function of international intergovernmental organisations (IGOs) that has its origin in the legal nature of IGOs. Apart from states, active participation of other subjects of international law in IGOs’ activities is pointed out. Specific character of legal personality of IGOs is regarded as the cornerstone of the rule-making function performed by IGOs.

Rule-making activities of IGOs are an integral part of international lawmaking as a whole, while the distinction is drawn between lawmaking in the context of international law and creation of other international rules. The standpoint is admitted that two components make up involvement of IGOs in international rule-making process: direct participation in creation of rules of international law and participation in states’ international rule-making activities. The author emphasizes the necessity to focus attention on correct interpretation of international legal rules, contained in the decisions of international organisations.

The article analyzes the international rule-making of IGO in its interaction with the states’ rule-making. This characterizes the IGO rule-making function in general, considering the important contribution of IGOs in development of national legal systems by means of soft law, model acts and judiciary bodies. National legal systems in their turn influence rule-making of IGOs, as illustrated with reference to the initiatives of the Republic of Belarus within the framework of the United Nations. Thus, the contemporary aspects of participation of the Republic of Belarus in IGOs are presented.

«The Origin and the Formation of Migration Law Institutes on the Example of the Correlation of such Terms as "Refugee", "Migrant" and "Foreigner"» (Yuliya Parkhomova)

The article explores such terms as «refugee», «migrant», «foreigner» both from the point of their contemporary interpretation and the historical context. The author shows how the terms is question are bound with each other, how their meaning has been changing in the course of history. The legal status of refugees, migrants and foreigners is analyzed on the concrete historical examples beginning with the Exodus of Jews from Egypt to the legal regulation of migration relations in the 19th century. As the result of this analysis the author produces the arguments that the origin and formation of migration law institutes had started long before the formal appearance of the terms «refugee», «migrant» and «foreigner» in the studies accomplished by the League of Nations.

«Procedure Improvement in Granting Refugee Status in the Republic of Belarus» (Anna Novikova)

The article reviews the notion of «the refugee» and exclusion causes fixed in the law «On Refugees» and the 1951 Convention relating to the Status of Refugees. The procedure of granting refugee status can be conventionally divided into the following stages: 1) application; 2) registration of application; 3) consideration of application and decision-making. The author carries out her analysis according to these stages, gives a brief description of the procedure of granting refugee status in Belarus emphasizing the aspects that, in the author’s opinion, require additional examination.

«Law of the Republic of Belarus on Refugees and Main Directions of its Improvement» (Tatiana Mayorova)

The article reviews legislation in the sphere of forced migration, the stages of granting refugee status to aliens and stateless persons in the Republic of Belarus and practical aspects of law enforcement in this sphere. The author cites statistical data about the number of aliens and stateless persons granted refugee status in the Republic of Belarus, the number of applications submitted, including those considered in accelerated procedure. Besides, the author identified new provisions relating to the institution of subsidiary protection and, in this respect, to the definition of the procedure of its granting, to the reasons of deprivation, loss and annulment of subsidiary protection, the legal status of aliens to whom such protection is granted as well as the procedures of family reuniting and personal identification, some provisions included into the draft of the Law «On Provision to Foreign Nationals and Stateless Persons of Refugee Status, Subsidiary or Temporary Protection in the Republic of Belarus». This legal act aims to preclude the possibility of abuse by aliens and stateless persons of the procedure of granting refugee status.

«The Geopolitical Image of the Republic of Belarus: Current Position and Prospects» (Leonid Gaidukevich)

The article considers a number of factors (economic, political, sociocultural etc.) which influence the geopolitical status of Belarus. Special attention is focused on the middle position of the Republic in the Central European and Eastern European region (the so-called, transit factor). The independent development of the country over more than 15 years has proved that the transit factor can play an important economic and geopolitical role, which is of great significance today.

While considering the multivector foreign policy pursued by Belarus, the author emphasizes that economic and social development of Belarus in near future would require the combination of Eastern and Western orientation, though the strategic priority should remain with the Eastern neighbour — Russia.

The author also makes an attempt to analyze the system of the geopolitical partnership of Belarus and Russia at the end of the 20th — the beginning of the 21st century, to determine the motivation of the diverse speed integration processes of the two states. Special interest is presented by the author’s conclusion about the political motives dominating the integration processes in the Union State lately: the influence of various political elites guided by pragmatic egoism in Russia on the one hand and Belarus striving to retain its full sovereignty and independence on the other. All this does not contribute to strengthening of either Belarus’ or Russia’s geopolitical power.

With the above-mentioned factors in view Belarus started to position itself in the 20th century as an independent geopolitical subject, with its own foreign policy course and an independent domestic policy.

Certainly, with Europe integrating and the US foreign policy pressuring the post-Soviet countries, Belarus has to keep a balanced attitude along its different geopolitical vectors. It is this, that dictates the active search of new partners in the international arena for the Republic, especially among the countries critical of the US foreign policy (Iran, Venezuela, China, Cuba, India and others).

«Relationship between the European Union and the NATO in 1990s—2000s» (Denis Melyantsov)

The article is focused on relationship between the European Union and the North Atlantic Treaty Organization under conditions of transformation of both organizations in the 1990s—2000s. The evolution of relationship between the EU and NATO is analyzed in the article and division of their interaction into periods is presented. Special attention is devoted to the study of the Western European Union’s role as a mediator in the NATO—EU relations.

The author makes a conclusion about the division of roles in ensuring of European security where the European Union is responsible for peacekeeping functions, whereas NATO assumes responsibility for full-scale military operations. An the same time, the author argues that the European Union has achieved substantial progress in framing its security and defence policy and this contributes to establishing a balance in transatlantic partnership.

«The History of Sino-Japanese Relations at the End of 19th Century — the Second Half of the 20th Century as a Barrier for the Bilateral Political Dialogue» (Vitaly Tolstoy)

Sino-Japanese contention from the end of the XIX century till the end of World War II is a very tragic period in the history of Sino-Japanese relations, especially so for China, as it lost much of its territories and time and again suffered defeats and humilation while resisting Japanese offenses. After more than 60 years have passed the genetic memory of both peoples is expected to have softened and reciprocal bitterness to have relaxed. But again and again new generations in both countries are being involved in the vicious circle of prejudices, suspicion and hate.

Beijing and Tokyo go on accusing each other of distorting history (the controversy of history textbooks). Beijing is indignant with Tokyo about the official practice of Yasukuni shrine visits. China demands from Japan an official apology for the aggression of 1937—1945 while Japan insists that the apology has been made already.

Thus, the heavy burden of the historical past hinders the Sino-Japanese dialogue on settling unsolved issues, especially the ones of political nature.

«Environmental Policy Despite the Bush Administration: Federalism, Divided Powers, and the Last Six Years» (Steven Hoffman)

The claim that policymaking in the United States is mired in a state of gridlock has been repeated often and loudly. Indeed, by almost any measure of partisan polarization, the divide between Democratic and Republican members of Congress has widened deeply over the past twenty-five years, reaching the levels of partisan conflict not witnessed since the 1920s. Yet, if both the popular media and the scholarly literature are awash with dire warnings, others maintain that gridlock has long characterized the American system and that the founders intentionally designed a system of institutional politics that largely preserves the status quo. This article explores recent trends in environmental policymaking in light of these competing claims. The analysis is based on two basic assumptions: first, that policy gridlock does reasonably describe the current situation at the national level, this despite the recent midterm capture of both chambers of Congress by the Democrats. The second assumption, however, is that the constitutional structure of the American political system diminishes the importance of gridlock at the national level; thus, in spite of gridlock, effective environmental policy is continuing to evolve.

«Formation of Ethnic Tolerance Among Schoolchildren and Students as a Factor of Positive Attitude to Forced Migrants» (Olga Pishchik)

The article includes both theoretical aspects of ethnic tolerance and the results of practical research that showed the attitude of future teachers and instructors in social work and psychology as well as of senior pupils to forced migrants. The author paid special attention to the results of practical studies proving that social and educational problems of the formation of a positive attitude to forced migration are connected with the formation of a realistic image of a migrant, the promotion of legal knowledge among senior pupils and students as a basis for constructive approach to migration, expansion of real positive experience of communication between senior pupils, students and other young people and their peers from forced migrants.

«The Role of Islamic Organisations in Integration of Muslims into Western European Society» (Iliya Korogodov)

Europe has many Islamic organizations, of which official and political Islamic organizations are the largest. The former are oriented on integration of Muslims on the basis of the diaspora integrational strategy, and the latter — on the multicultural integrational pattern. The diaspora integrational strategy corresponds to ethnic Islam that does not present a menace to the integrity of Western European society; the multicultural integrational strategy represents fundamentalist (politicized) Islam that is a challenge to this integrity.

These organizations influence integrational strategies of both European Muslims (through mosques, female, students’, youth, sports and other associations, the media), and the nation-states (through participation in the inter-faith, intercultural dialogue). But such influence is limited since Islamic organizations are not very popular with young people and since nation-states play the leading role in the inter-religious dialogue.

The author believes that a Muslim person and a Western European nation-state remain the key subjects of the integrational process.

«International Experience of Tariff Regulation of the Domestic Market in the Countries with Small Open Economies for the Republic of Belarus» (Elena Davydenko)

The article carries an analysis of variants of tariff regulation of imports in the countries with small open economies. The author points out that the Republic of Belarus tariff regulation needs reforming towards internationally recognized standards with due consideration given to national interests as the case of countries with small open economies shows. The import customs tariff of the Republic of Belarus ought to retain the protectionist function to protect the most vulnerable strategic goods and also the fiscal function to contribute to the income part of the country’s budget, since it usually is a substantial source of budget sources for a country with the emerging market economy. However, as the reform goes on, the customs tariff of the Republic of Belarus should become more liberal, taking into account some negative economic effects of its application for different economic subjects, primarily, for consumers and the national economy in general, but also considering the overall trend of international trade system liberalization within the WTO framework and the necessity for Belarus to join it. The experience to study and profit from for Belarus is that of the small countries of Western and Northern Europe, with regard to the fiscal and protectionist component of their customs tariff and the correspondence to the principles of the international trade system formation.

«Property Right Protection in the Light of a Country’s Investment Attractiveness» (Mikhail Trafimovich)

Obviously, the prerequisite of a state’s success as an object for foreign investing lies in its attitude to property issues. This institution guarantees to a certain extent the investor’s rights in the host country markets. The property risks, unacceptable to the Western standards, hinder attracting potential foreign investors. On the other hand, the state, especially during the transition period, develops by a hit-and-miss strategy and so strives to balance the extension of the investors’ property rights in accordance with its national interest.

The world experience, primarily, that of the Central and Eastern Europe in shaping the property institute shows that it is impossible to achieve competitiveness in the international capital market without fixing property rights in legislation. Here, it is necessary to take into consideration not only the issues of establishing and guarantees of the property rights but also a civilized approach to nationalization. The latter is nothing out of the ordinary in world practice. The important aspects of this problem are transparency, clarity and independence of the norms regulating this practice.

Another moment, whose significance has grown lately, is the intellectual property rights protection. This topic is bound to become important for Belarus who is aiming to follow the innovation route of development. High technologies development requires attracting ample investment resources to this sector. Relying on foreign participation would entail correspondence to international standards in intellectual property rights protection. This means not only the adoption of the corresponding legislation but also the law-enforcement bodies’ readiness to act clearly and competently to control and combat breaches of law in this area.

«The Information Market: Its Future Both Globally and in the Republic of Belarus» (Kseniya Yakushenko)

The topicality of the study of the global information market is caused by significance of the issues of its technological and economical changes as well as by the insufficient development of theoretical, economic, legal and managerial aspects of the operation and progress of the information market in the economic development of the Republic of Belarus in the conditions of integration and globalisation.

In the author’s opinion, the information market is a system of economic, legal and organizational relations in the sphere of trade in the results of intellectual labour on commercial basis.

However, there is no single position towards the structure of the information market.

The results of the study revealed certain trends in the development of modern global information market with regard to some segments of the market structure. The given trends gave some problems of operation of the information market in the Republic of Belarus and to indicate certain ways of its improvement.

Thus, the author outlined basic trends and new phenomena common for some segments (printed, non-printed, audio-visual and electronic media) of the global information market after consideration of different approaches to comprehension of the information market and its structure. The author also identified a range of legal, economic and organizational problems of Belarusian information market and gave general recommendations for their solution on the basis of global economic data and statistics.

«Tourism Development and Tourism Policy in Slovakia» (Jana Kucerova)

The article reviews problem issues of tourism sustainable development in Slovakia. The author revealed on the basis of substantial statistical data that the political transformation of the country in the 1990s and its joining the European Union have become favourable factors for tourism development in Slovakia. Nowadays tourism policy is directed at maintaining the existing number of tourists and changing of their structure, for more than half of them are sightseers and transit tourists. The main aim of the country’s tourist policy is positioning of Slovakia as a promising tourist region in the European and global tourist markets. The article pays special attention to the issues of raising the level of services offered to tourists by way of improvement of accommodation facilities (building of mini- and family hotels), advertising and information promotion of national tourist product as well as development of the Slovak regions’ tourism potential.

This publication was prepared in the framework of EU AENEAS — UNHCR project “Strengthening the Protection Capacity in the Republic of Belarus” 


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