Journal of International Law an International Relations

Journal of International Law and International Relations 2008 — N 3


International Law

Theoretical Issues

Towards the Problem of the Definition of Unilateral Acts of a State — Elena Konnova

International Private Law 

The Role of Intellectual Property in Integration: the Example of the European Union — Elena Leanovich

Criteria to Determine the International Nature of a Treaty on Factoring — Nadezha Gazdyuk

The Notion of the Surrogate Motherhood Institute — Natalia Bayborosha

Young Scholars Forum

Refugees and Others Categories of Migrants: Terminology and Differences of Migration Flows — Dmitry Makarevich

Sources of International Migration Law — Yuliya Parkhomova

International Relations 

The FRG Position on Restoration of the USSR Baltic Republics’ Sovereignity (1990—1991) — Vladislav Froltsov

Migration Processes in Belarusian-Russian-Ukrainian Borderland (the End of the 20th Century — 1917) — Mikhail Starovoitov

Chinese and Japanese Rivalry in the United Nations — Vitaly Tolstoy

Confucianism and Modern Political Culture of China — Ivan Sidoreyko

The Wailing Wall in Arab-Jewish Relations in 1840—1931 — Anastasiya Ioksha

Tourism Policy of the Republic of Belarus Under Mar-ket Reforms Conditions — Leonid Gaidukevich

Young Scholars Forum

Tolerance Towards Refugees in a Multicultural Society (a Student Collective Case) — Veronika Burachevskaya

Tatars and Gypsies in the Grand Duchy of Lithuania: Legal and Social Status — Eugeny Chervinsky

Documents and Materials

Main Aspects of Perfecting the Legislation Regulating Granting Protection to Foreign Citizens and Apatrides Seeking Asylum in the Republic of Belarus — Tatiana Tumashik (only russian)

The Experience of Belarus’ Participation in the EU European Neighbourhood Policy — Vladimir Belitsky, Evgeny Odinets, Leonid Orlov (only russian)

International Economic Relations

The Evolution of Subsidies as an Instrument of Structural Policy in the EU Countries — Vyacheslav Perepyolkin

International Trade and Economic Growth: Meta-analysis of Scientific Research in 1970s—2000s — Maksim Belitski

Transnationalisation of Business Activity of Automobile Companies of Russia and Belarus: Comparative Analysis — Dmitry Kalinin

The State and Fund of Funds in Venture Industry — Olga Malashenkova


English Summaries

«Towards the Problem of the Definition of Unilateral Acts of a State» (Elena Konnova)

The article is devoted to the problem of definition of a unilateral act of a state — the issue that has not received an unambiguous answer in the doctrine of international law. For the purpose of elaborating the definition of a unilateral act, it is necessary to ascertain whether it can be considered as a legal act, taking into account that doubts were cast regarding this. The international legal doctrine makes some requirements of the notion of an «international legal act». The analysis of these requirements allows to conclude that a unilateral act of a state meets all of them. Hence, on defining the notion of a unilateral act, account must be taken of such vital elements as the presence of the expression of the will, its capacity to produce its own legal consequences and the conformity of such consequences with the expressed will. These elements are inherent to all international legal acts. The definition of a unilateral act ought to reflect some of its peculiarities, such as the decisive role of the intent to trigger off international legal consequences, publicity of the unilateral act and its relative nature. On defining the notion of a unilateral act it is also necessary to take into account the meaning of the term «unilateral». The expression of the will is to emanate from one party, which may be represented by several states. For this reason the wording «the will, emanating from one subject of international law» seems unacceptable. The article suggests a definition which covers all the requirements mentioned above. It is the author’s contention that it could best sum up the concept of a unilateral act of a state.

«The Role of Intellectual Property in Integration: the Example of the European Union» (Elena Leanovich)

The article analyses the development of law and judicial practice of the EU in the intellectual property sphere. The influence of the intellectual property on the economic rapprochement of states is shown. The author cites examples from the practice of the EU Court, which confirm the close connection between the freedom of goods movement and market competition and the intellectual property problem.

The article presents the data on the development of the sources of secondary law on intellectual property. The author enumerates the directives and regulations adopted by the EU on the main issues of industrial property and copyright. The article characterizes the single system of protection of the most important objects of intellectual property in the EU as well as the trends in developing single protection of other intellectual property objects in the EU.

The author comes to the conclusion that single systems of protection in the EU are constructed on the principles specific to national legal systems of intellectual property protection and points out the ever-deepening cooperation and interaction of the member-countries in the sphere of intellectual property which is likely to lead to elimination of the territorial character of the intellectual property rights in the EU space.

«Criteria to Determine the International Nature of a Treaty on Factoring» (Nadezha Gazdyuk)

The article deals with the issue of the circumstances which determine the international nature of a treaty on factoring. After the study of Belarusian legislation, international legal instruments and the research of national and foreign academics the author came to the conclusions that follow below.

No single approach has emerged in the practice across the world as to the criteria which provide a treaty with international character. As a rule, comprehensive lists of these factors are compliled, such as the Banking Code of the Republic of Belarus, the 1988 UNIDROIT Convention on International Factoring, the UN Convention on the Assignment of Receivables in International Trade.

According to the author the existing approaches to determining the criteria of the international nature of a treaty on factoring can hardly be considered efficient. In view of the fact that a treaty on factoring always involves the interests of at least three subjects (the creditor, the factor and the debtor) who can have different national allegiance and also considering the variability of the international economic relations and their constant evolution it is not advised to limit the criteria which define the international character of a civil law treaty including treaties on factoring to some specific comprehensive list. In this respect the author recognizes the expediency of the approach fixed in the 1994 Inter-American Convention on the Law Applicable to the International Contracts (1994) where an international contract is regarded to be a contract the parties of which have permanent residence or commercial enterprises in different states which agree on the contract, or a contract which is objectively connected with more than one state-parties to the agreement. In the author's opinion, this approach corresponds to the national doctrine on the subject of international private law.

In conclusion the author makes an attempt to formulate her own definition of a treaty on international factoring which covers all possible cases of manifestation of the international nature in question.

«The Notion of the Surrogate Motherhood Institute» (Natalia Bayborosha)

Improving demographic situation is one of the fundamental directions of most states’ social policy. Legislation in action should ensure a rising birth rate, provide both protection of citizens’ reproductive rights and realization of the basic inalienable human rights to continue the family line.

Surrogate motherhood is one of modern methods of the assisted reproductive technologies which allows to cope with sterility. It is a well-known fact that traditional surrogacy appeared first. This type of surrogacy means that the surrogate mother must carry and give to an infertile couple a baby, conceived using the genetic material of one of his potential parents and a donor. In gestational surrogacy the woman (surrogate mother) bears a baby for persons whose genetic material was used at the time of conception. The main difference between traditional and gestational surrogacy is that in the latter the embryo is transferred to the woman who carries and gives birth to a child under the condition that there is no genetic relation between that woman and the baby.

The attitude to the institute of surrogate motherhood in foreign states’ legislation is rather ambiguous (from full prohibition to legalization). It is caused both by cultural traditions and moral, ethical and legal aspects.

In the course of the surrogate motherhood program implementation the matter of the «real» mother recognition is quite topical. It seems that the institute of surrogate motherhood raises doubt about the obvious fact: the woman who gave birth to the child is considered to be its legal mother. Moreover, in practice confusion appears at the time of the baby’s registration. The medical birth certificate is given to the woman who gave birth to the baby, while the genetic relation between the mother and the newborn is not to be taken into consideration. Therefore in case of using surrogate motherhood program it would be possible to establish motherhood not on the fact of the baby’s birth, but on the fact of the genetic relation between the mother and the child.

In most states such issues as opportunities for surrogate motherhood implementation by same-sex partners and for social reasons are not legally regulated. In these situations the fulfilment of surrogate motherhood program will distort its essence and aggravate the commercialization problem in this sphere.

Although surrogate motherhood cannot solve demographic problem completely, it can change somebody’s life, giving people the feeling of parental happiness. In our opinion, we shouldn’t consider surrogate motherhood immoral because owing to it, a new, so long-expected child comes into being.

«Refugees and Others Categories of Migrants: Terminology and Differences of Migration Flows» (Dmitry Makarevich)

Definition of the concepts «forced migration», «illegal migration», «refugee» and the questions of categorical distinguishing of migratory process are examined in this article. This differentiation is necessary for more accurate and correct definition of the status and legal positions of migrantsб subject to their belonging to this or that category. The author proposes to use some organizational procedures and administrative sanctions to regulate the stated processes, which would make it possible to protect certain categories of migrants (the use of amnesty migratory institution, advanced development of migration programmes).

«Sources of International Migration Law» (Yuliya Parkhomova)

Considering the tendency of separating international migration law into an independent branch of law, the author of the article makes an attempt to define and analyse the system of international migration law sources basing on the sources of international public law. Thus, the author explores the international treaty law, customary international law, decisions of international judiciary authorities (of the International Court of Justice and of the European Court on Human Rights), acts of international organizations and the doctrine of international migration law. The author emphasizes that the necessity to analyse international migration law sources as an integral system is aimed at more efficient application of its norms.

«The FRG Position on Restoration of the USSR Baltic Republics’ Sovereignity (1990—1991)» (Vladislav Froltsov)

The article considers the position of the government of the FRG concerning the struggle of Lithuania, Latvia and Estonia for restoration of their statehood in 1990—1991. The key reason for German unwillingness to support the Baltic national movements is indicated to be the striving of H. Kohl to convince M. Gorbachev, that Germany did not wish the disintegration of the Soviet Union and separation of the Baltic republics. It was necessary for the Federal Chancellor to persuade the Soviet leadership to agree to the incorporation of Eastern Germany into the FRG. The consequences of such policy of H. Kohl for the further development of the relationship between the Federal Republic and the Baltic countries as well as for the present role of Germany in the postsoviet Baltic region are also evaluated in this article.

«Migration Processes in Belarusian-Russian-Ukrainian Borderland (the End of the 20th Century — 1917)» (Mikhail Starovoitov)

The article relies on the study of vast statistics to explore how Belarusian, Russian and Ukrainian borderlands population participated in the migratory processes at the end of the 20th century till 1917. The author strives to show to what extent relocation, temporary labour migration, emigration and refugee problems affected the population of Belarusian provinces in question, and, first of all, the ethnic Belarusians. The comparative analysis allowed to view these processes within the general historical context of the Russian Empire. One-third of Belarusian provinces population was scattered in the neighbouring provinces of the borderlands. They mainly participated in the eastward migration, not in the westward one. It is the first time in the national historiography that the absolutely reliable absolute data on the Belarusian emigrants and Belarusian refugees has been received.

The results obtained can be used to study the dynamics of the number, of the educational professional and general cultural levels of the Belarusian population and, on the whole, of the ethnic cultural processes in Belarusian, Russian and Ukrainian borderlands.

«Chinese and Japanese Rivalry in the United Nations» (Vitaly Tolstoy)

The article exposes the gist of the contradictions between the People’s Republic of China and Japan within their UN membership. It also reviews the international political situation at the moment of both countries’ accession to the organization. The author analyses the objectives of the Japanese leadership aiming to raise the status of Japan in the UN and the obstacles to that, as well as the PRC position and its methods of blocking Japan’s promotion to the permanent membership of the Security Council. According to the author the Asian Pacific Region is the most explosive place in the world and the Chinese-Japanese rivalry in the UN is the centre of a global intrigue which heightens the Chinese-Japanese controversy against the background of Chinese-American confrontation.

«Confucianism and Modern Political Culture of China» (Ivan Sidoreyko)

The analysis of factors influencing modern political culture of the Chinese people is presented in the article. Among them special attention is devoted to Confucianism. What is researched is how Confucian values are compatible with the ethics of modernity and democracy. Democratic and antidemocratic features are bound both in classical Confucianism and in modern political culture of the Chinese. Special academic interest is raised by the phenomenon of «Guanxi» a new informal political institution that depicts the transitional character of modern Chinese political culture. However, trends of individualism emerge in political culture. À certain discrepancy between the emerging political culture of the Chinese and the character of official political institutions leads to decreasing of the level of legitimacy of the present political system of the country and makes the necessity of its democratization more urgent.

«The Wailing Wall in Arab-Jewish Relations in 1840—1931» (Anastasiya Ioksha)

The article is devoted to the Arab-Jewish relations in 1840—1931, concerning the Wailing Wall (the Western Wall). The article draws attention to the documents of the Arab side and of the administration of Great Britain, that relate to the status quo of the Holy places of Judaism and Islam. There is an explanation of the concepts of the «old practice» and «established practice», which were used during the period of the Ottoman Empire and the period of the Mandate. The «established practice» contributed to the changing of the status quo that influenced the Arab-Israeli conflict. Arabs tried to resist this change. The article presents the conclusion about the evolution of the Arab and Jewish positions and results that were achieved by the British administration. New terms of the changed status quo were consolidated in the Palestine (Western or Wailing Wall) Order in Council in 1931.

«Tolerance Towards Refugees in a Multicultural Society (a Student Collective Case)» (Veronika Burachevskaya)

The article is dedicated to the investigation of tolerance as a most important factor of the successful integration of refugees into the receiving society. The author analyses the etymological ground of the concept of tolerance; mentions factors, which form tolerance towards refugees. Within the framework of the scientific research 80 students of the faculty of international relations of Belarusian State University completed a questionnaire, the goals of which were characterization of the students’ attitude towards refugees; determination of the level of students’ knowledge on themes, connecting with refugees, identifying the main information sources; drawing students into solving the problem of refugees in Belarus. After the analysis of the survey results and the list of measures, which are carried out by the state and public organizations in cooperation with the UNHCR in Belarus, the author suggests possible ways to increase the level of tolerance in Belarus: improving the mass-media’s activities in the correct presentation of the refugees’ problems; organization and financing of the compulsory language courses with the aim to remove the language barrier between the refugees and the receiving society.

«Tatars and Gypsies in the Grand Duchy of Lithuania: Legal and Social Status» (Eugeny Chervinsky)

The article makes an attempt to analyse the first mentions of historical minorities, such as Tatars and Gypsies. It makes an attempt to define their legal status and social structure on the basis of historical materials and works of famous historians. It is stressed in the article that it is in the traditional and legal culture of the Grand Duchy of Lithuania population of those times that it is necessary to look for an answer to the question, what assisted peaceful co-existing of different ethnic groups in this country over several centuries.

«The Evolution of Subsidies as an Instrument of Structural Policy in the EU Countries» (Vyacheslav Perepyolkin)

The article explores Western European experience of using subsidies as one of the main instruments for a state to assist certain purposeful changes in sectoral and regional structure of economy. The study of the subsidies system evolution allowed to formulate the hypothesis about the beginning of a qualitatively new stage in its development which can be characterized by advance into the foreground of the social and ecological aims of subsidizing.

«International Trade and Economic Growth: Meta-analysis of Scientific Research in 1970s—2000s» (Maxim Belitsky)

The estimated welfare gains from international trade are small enough, on the order of one percent of GDP. However, under free trade, their positive impact on economic growth is obvious. But as to the size of these effects, national and foreign literature on international trade has emphasized the statistical significance, not the economic significance, of the international trade-growth relationship.

Using the instruments of meta-analysis of the international trade-growth relationship has enabled the authors to overcome the problem of credibility with a minimal sample sizes. The influence of such indicators as foreign trade, the exchange rate, the illiteracy rate, secondary education level, human development index, unemployment, government spending in % of GDP, R&D index on economic growth are defined in relation to trade liberalization. The research has answered the main question, whether free trade guarantees economic growth. It is empirically proven, that the developing countries with the growth rates of exports up to 12 % or more per year will be able to demonstrate an average GDP growth rate of about 2.5 % quicker than the developed industrial countries.

«Transnationalisation of Business Activity of Automobile Companies of Russia and Belarus: Comparative Analysis» (Dmitry Kalinin)

The world market witnesses the continuing growth of the number and influence of automobile companies from the developing countries and the transition economy countries. The said trend is also characteristic of Russian and Belarusian car makers. The aim of the article is to give insight into the transnationalisation of this business activity and to sum up their advanced experience for other automobile companies to use.

The article investigates the scale and specific features of transnationalisation of business activities of Belarusian and Russian automobile enterprises at the example of Minsk Tractor Plant and Kamsky Automobile Plant. It is for the first time in national economic studies that the comparative analysis of the transnationalisation strategies of the business activity of Belarusian and Russian car-making companies has been carried out. The study resulted in the identification of the transnationalisation of business activities of the companies in question, in summing up of the advanced experience of organizing business activities abroad. This served as a basis to suggest recommendations for the national automobile companies on how to optimize the process of transnationalisation of business activity.

«The State and Fund of Funds in Venture Industry» (Olga Malashenkova)

Successful world experience defines the role of the state and government support programs of venture business development as the start catalyst of venture processes in the country. Programs of direct state investments basically are typical of developed countries. Developing countries achieved success thanks to fund mechanisms. The article reveals the essence of the fund of funds and its role in the development of the venture industry. Examples are given of the state support of venture business in different countries: Finland, Israel, the USA, Russia, Kazakhstan.

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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