Belarusian Journal of International Law and International Relations 2004 — N 1

Summaries

International Law

Theoretical Issues

The Binding Character of the UN Security Council Resolutions in the Context of the Non-intervention Principle — Elena Dovgan

International Organizations

The Peculiarities of Mechanism and Practice of Introducing Changes and Termination of Normative Legal Acts Adopted in the Commonwealth of Independent States — Igor Barkovsky

Diplomatic and Consular Service Institution

Legalization of Documents as a Form of Consular Protection Abroad — Yury Bulavko

International Law and Domestic Law

International Legal Prerequisites for the Formation of Administrative Justice Institute in the Postsoviet Area Countries — Gevorg Danielyan

International Relations

International Terrorism as a Most Dangerous Threat to the Contemporary World Order: Nature of the Problem and Ways of International Counteraction — Alexander Sychev

Combating Illegal Migration but Ensuring Access to the Asylum Procedures for Persons in Need of International Protection — Ilija Todorovic

The Office of International Organization for Migration in the Republic of Belarus — Alexandr Kapirovsky

The Central and Eastern European Countries Joining the EU: Problems of Regional Cooperation — Leonid Gaidukevich

The Transylvania Problem in the USSR Relations with Its Anti-Hitler Coalition Allies (June 1941—May 1943) — Anatoly Salkov

Regional Policy in China’s Foreign Policy Strategy in the Post-Cold War Period — Vitaly Borovoy

Documents and Materials

Illegal Migration (the Materials of the International Conference “Illegal Migration as Treat to International Stability and State Security”) — Yury Morgun (only russian)

International Economic Relations

Access to Foreign Markets after the Uruguay Round: Tariff Conditions — Elena Davydenko

International and Belarusian Experience in Regulation of the External Migration of Labour — Valentina Migas, Alexandra Nechai

The Evolution of the Policy of Promotion of Foreign Investments into the Economy of South Korea After the 1997 Financial Crisis — Gil Kun Suk

The Payment Union of Belgium and Luxembourg: Historical Experience and Application Prospects — Stanislav Tkachenko, Nadezhda Kozlovskaya

FULL ISSUE

English Summaries

"The Binding Character of the UN Security Council Resolutions in the Context of the Non-intervention Principle" (Elena Dovgan)

According to the Charter of the United Nations the U.N. Security Council bears the primary responsibility for the maintenance of international peace and security. The Council, however, stays sometimes inactive because of controversy among its members. States may thus invoke insufficient efficacy of the S.C. as the basis for actions by the decision of other U.N. organs (Korea crisis 1950, Congo 1961), for collective or individual self-defense. States also try to justify the use of individual coercive measures referring to the necessity to enforce Security Council resolutions (military action in Afghanistan 2001, Iraq 2003). At present the possibility to act "on the advice" of the Security Council in the case of its inactivity or insufficient efficacy is alleged on the following grounds:

1. Authorization of the S.C. to use "all necessary means".

2. Recognition by the S.C. of the existence of a threat or breach of international peace and security.

3. Authorization of the S.C. to take action in self-defense.

4. Enforcement of earlier resolution of the S.C.

5. Other justifications.

The present article considers the status of the above-mentioned justifications without the explicit authorization by the U.N. Security Council in the context of the principle of non-intervention into the domestic affairs of states. The study allows to make the following conclusions. Whenever the system of the collective security provided for by the U.N. Charter doesn’t function, the Security Council carries out its enforcement capacity by authorizing individual states or international organizations to act. This enforcement activity doesn’t constitute intervention into the domestic affairs of states only in so far as it is accomplished in accordance with the authorization of the Council and ceases as soon as the purpose of the sanction is achieved. Other justifications (for example, recognition by the S.C. of the existence of a threat or breach of international peace and security, breach of obligations provided for in the S.C. resolutions, reference to the right of individual and collective self-defense, threat by the severest consequences) constitute no basis for the unilateral enforcement of the rulings of resolutions and therefore break the principle of non-intervention into the domestic affairs of states as well as the prohibition to use force or the threat of force in international relations. Inactivity or insufficient efficacy of the U.N. Security Council cannot be viewed as an authorization to resort to unilateral military measures either.

"The Peculiarities of Mechanism and Practice of Introducing Changes and Termination of Normative Legal Acts Adopted in the Commonwealth of Independent States" (Igor Barkovsky)

The article deals with the unexplored problem of the international law concerning the procedure of amendments introduction and termination of normative legal acts adopted within the framework of the CIS.

The author analyses the mechanism and practice of introducing amendments and terminating the following legal acts adopted within the CIS framework: The Rules of Procedure of the Council of the Heads of States, the Council of the Heads of Governments, the Council of Ministers of Foreign Affairs and the Economic Council of the CIS adopted by the Council of the Heads of States on October 7, 2002, recommendations on the development of drafts of the international legal instruments of the CIS and the procedure of preparation and holding meetings of the expert groups on the concordance of the CIS instruments drafts adopted by the Council of Ministers of Foreign Affairs on September 18, 2003, international practice and norms of the 1969 Vienna Convention on the Law of Treaties regulating the mechanism of changing and termination of international agreements.

The author goes beyond mere analysis of the normative instruments: he also introduces interesting proposals for the improvement of the CIS law-making activities including amendments in the CIS legal acts and their termination. In particular, the author suggests that amendments in the CIS law should be introduced in proper time. With this aim in view, continuous analysis of the CIS legal base should be carried out in order to compare the adopted legal acts with the existing ones. He also makes proposals on the alteration of a number of the CIS acts.

"Legalization of Documents as a Form of Consular Protection Abroad" (Yury Bulavko)

The article reflects the problems of recognition of foreign documents in the Republic of Belarus, legalization of Belarusian documents abroad as well as legal regulation in this sphere. The author studies the aspects of legalization of documents by the authorized bodies in the Republic of Belarus for their use both in the country and abroad, gives analysis of legal regulation of the legalization process carried out by the special bodies in the Republic of Belarus in comparison with the specific features of law in this field of the developed European states.

The author also considers the legalization procedure for the documents issued in the countries that have no consular offices in the Republic of Belarus

The reasons for refusal in legislation also are given.

German law is shown as an example in the sphere of documents legalization.

The author also focuses on the 1961 Hague Convention abolishing the requirement of legislation of official documents in foreign countries.

The article examines the problems that Belarusian citizens face during the legalization process such as: absence of consular offices in some foreign countries, changes in legalization procedure, development of the way of payment for legalization services and suggests possible variants of solution of these problems.

The author describes the procedure of the Ministry of Foreign Affairs’ mediation in the documents legalization process and draws up a list of international treaties in the sphere of documents legalization that the Republic of Belarus is party to.

"International Legal Prerequisites for the Formation of Administrative Justice Institute in the Postsoviet Area Countries" (Gevorg Danielyan)

The article explores the peculiarities of international legal norms in the sphere of administrative justice, analyses the legislation of Armenia regarding its conformity to international acts in this respect. The author comes to the conclusion about the necessity of developing common criteria concerning the institution of administrative justice and bringing national legislation in accordance with the provisions of international legal documents.

"International Terrorism as a Most Dangerous Threat to the Contemporary World Order: Nature of the Problem and Ways of International Counteraction" (Alexander Sychev)

The article is devoted to international terrorism — one of the most topical problems on the agenda of the world community. The author analyses the changes that took place in the of international relations system after the terrorist attacks in the USA on September 11, 2001 and also the measures that the states choose to respond to the new global challenge. The author considers factors that led to the wide spreading of terrorism. The analysis of initial motives that incite people to perform terrorist acts is given. The article also raises a question of human rights observance with regard to the international terrorism and its prevention.

The author comes to the conclusion that combatting terrorism may include certain preventive military actions. Meanwhile, unilateral actions of the states without observance of the international law lead to extremely dangerous cases as for the further observance of international agreements by states. The author believes that observance of such achievements of civilization as freedom of transportation, freedom of information dissemination, human rights protection are especially important. Otherwise the mankind will not only regress in its development but the terrorist aims would also be achieved.

In the author’s opinion further activities are necessary on revealing initial motives of terrorism with the aim of their maximum possible elimination. The motive definition should not justify criminal nature even by implication.

The article reviews the measures of the global and regional organizations taken to counteract terrorism and also their cooperation with the Republic of Belarus. Our country’s position lies in the necessity of observance of the international law by the states, with the leading role of the UN and the Security Council in the coordination of the global anti-terrorist cooperation. The activities of other international organizations should supplement the UN activities.

The problem of international terrorism has global nature, therefore close inter-state cooperation should exist aimed at combined joint counteraction to such an extremely dangerous threat to all fields of international activities.

"Combating Illegal Migration but Ensuring Access to the Asylum Procedures for Persons in Need of International Protection" (Ilija Todorovic)

Since 1995, UNHCR has been active in Belarus with direct assistance to help the Belarusian authorities in developing an effective system for granting fair access and asylum for those in need of international protection. In 1995, this came at a difficult time for Belarus, just a few years into its independence from the former Soviet Union. It had little or no experience in dealing with such issues as illegal/forced migration, asylum, smuggling and the trafficking of human beings. Since then, in 2001, Belarus has ratified the 1951 Geneva Convention Relating to the Status of Refugees with its 1967 Protocol and has amended its Law on Refugees in 2002 to better reflect international standards. These steps are in compliance with international obligations. The result is a functioning asylum system that has recognized some 700 refugees to date with another 2,500—3,000 persons of concern in the procedures.

Today, UNHCR is also sponsoring and facilitating Belarus’ active participation in various multi-lateral processes that have raised crucial attention to the cross-border aspects of the issues of migration and asylum. From the CIS process to the Budapest process, now Belarus has taken an active and fruitful leadership role in the Soderkoping process. In these Processes, UNHCR and Belarus have a mutually beneficial partnership which has as its basis, 2 important goals:

1. The recognition that illegal migration consists of both economic migrants and refugees, hence all efforts to combat it must have the necessary safeguards for ensuring entry into the country and then access to the asylum procedures for asylum seekers and refugees.

2. The procedures for being granted refugee status must be fair and efficient which would allow for the full protection for those who are asylum seekers in the process and those who are deemed to be refugees.

In essence, this nexus between illegal migration and asylum is quite strong. It is here that the multilateral Process like the Budapest one and its recommendations are quite useful to examine the international refugee law obligations that States must adhere to as they take greater measures to control migration flows. Such State measures have included the following: punishing illegal entry and stay of asylum seekers, sanctioning the use of false documents and imposing liability on carriers that transport illegal migrants and asylum seekers. Notwithstanding the increased use of these measures, it should be noted that these UNHCR-endorsed recommendations to protect asylum seekers and refugees have already been agreed to by participating States like Belarus and the Russian Federation.

As for the punishing of illegal entry and stay, Article 31 of the Geneva Convention exempts refugees from being punished, provided that they present themselves in a reasonable time to the authorities and show good cause for their illegal entry and presence. This article also provides that States should not apply restrictions to the movements of refugees, except as necessary. Regarding sanctions being introduced punishing the production, provision and use of fraudulent documents, UNHCR believes that this may have a negative impact on asylum seekers and refugees because they would have valid reasons for being in possession of forged documents. It should be recognized that asylum seekers have to resort to the use of falsified documents as the only way to flee the country of origin and if done not for deliberate deceit then such use may indicate the well-founded nature of the asylum claim. While acknowledging that there are increasing numbers of asylum seekers with false documents, States should still allow/enable all asylum seekers without any distinction to have access to the refugee status determination procedures. Concerning punishment on carriers who fail to facilitate the identification of improperly documented passengers, UNHCR’s position is that this issue can be better addressed by careful harmonization of standards of application, treatment and implementation of accelerated asylum procedures. If carrier sanctions are resorted to then they should be implemented in a manner consistent with international human rights and refugee protection that under Article 14 of the Universal Declaration of Human Rights declares every person has the right to enter a country to seek asylum.

Due to time constraints all the Budapest recommendations on the nexus of migration and asylum are not gone into here. However, it is necessary to highlight that no matter what actions are taken by States on the following: e. g. the approximation of visa regimes, the concluding of readmission agreements, the sanctioning of both trafficking and smuggling of people, the strengthening of the sanction of detention (in aggravating circumstances cases) — as part of their legitimate interest in controlling illegal migration, States still must meet their international obligations under refugee law. If States use these measures to interfere with the ability of persons at risk of persecution to gain access to safety and obtain asylum in their countries, then States act inconsistently with their international obligations towards refugees. In this light, concerns of immigration control should not overshadow the need to protect the victims of smuggling when they are refugees or the commitment to uphold the right to seek and enjoy asylum from persecution. Moreover, cases of trafficked persons particularlywomen and children may also under exceptional circumstances be in need of international protection. Therefore there is a need to reconcile measures aimed to combat the smuggling of migrants and the trafficking of persons, with existing and binding obligations under international refugee law, particularly with the principal of "non-refoulement".

Lastly some points must be made on the exchange of data and the particular need for the protection of women and children. The Budapest process meetings reaffirmed the need for increased exchange of information at all levels between participating States with a view to combating illegal migration and trafficking in aliens and its linkage to organized crime. However recommendations were made that appropriate legislation should be adopted on the protection of personal data. As such, UNHCR would like to stress in conformity with this recommendation that no information which could jeopardize the individual should be shared with the country of origin of an asylum seeker and refugee or any other unauthorized source. Informing the country of origin of an asylum seeker about his/her individual case may have potentially grave consequences for the asylum seeker and may even be a course of persecution in itself. As for vulnerable categories of individuals caught in the illegal migration mixed flows, the special needs to protect women and children who are trafficked or who enter and stay illegally in your countries should be stressed. The specific rights of women are recognized in a number of international human rights instruments including the Convention on the Elimination (of all forms) of Discrimination against Women. Women should be given equal access to the asylum procedures. The authorities dealing with asylum claims should be fully aware of, and support, the needs and resources of refugee women. All officials and staff involved in the reception and determination process should be trained in order to be sensitive to gender issues. As for children, it should be highlighted that they suffer the hardship of displacement even more acutely than adults due to their vulnerability and developmental needs. Hence Article 3 (1) of the Convention on the Rights of the Child provides that the "best interests" of the child shall be the primary consideration in any action taken by States concerning illegal migration and asylum policies which affect children.

In conclusion, the author highlights and congratulates Belarus for being an active participant of both the Budapest and Soderkpoing Processes in which States take stock of the advancements in combating illegal migration and in meeting international standards as to refugee law and the protection of vulnerable groups like women and children. Being a transit country for illegal migration but also providing asylum for those who wish to seek international protection, Belarus is taking full advantage of cross border cooperation mechanisms to assist in finding a solution. The solution, i. e., making illegal migration "manageable" is not only greatly facilitated by these multilateral Processes but also by the organizing of international seminars such as this one.

"The Office of International Organization for Migration in the Republic of Belarus" (Alexandr Kapirovsky)

The article is devoted to the migration issues including illegal migration and women trafficking as the most topical problems today. The author gives brief description of the main directions of the International Organization for Migration (IOM) activities and the basic fields of activities of the IOM office in the Republic of Belarus. He shows that the IOM office within its mandate jointly with the government bodies of the Republic of Belarus has carried out a number of specific projects contributing to the improvement of the migration situation in the country.

A vivid example is the successful project of joint Belarusian-Russian control of the border area between Gomel region (Belarus) and Chernigov region (Ukraine).

The author also gives brief description of the project "Combatting Women Trafficking in the Republic of Belarus" carried out in close cooperation with the Ministry of Foreign Affairs of the Republic of Belarus and the UNDP with the support of the Department of International Development of Sweden and the US State Department.

"The Central and Eastern European Countries Joining the EU: Problems of Regional Cooperation" (Leonid Gaidukevich)

The article explores some topical issues in the development of inter-state relations of the countries of Central and Eastern Europe with Belarus, Russia and Ukraine in the conditions of the EU enlargement.

The central and eastern European countries which emerged in the aftermath of the collapse of the socialist system are undergoing a complex period of profound social and political transformations and search for a new regional identity. The EU reaching the borders of Belarus creates a completely new political and economic situation on its western vector.

"The Transylvania Problem in the USSR Relations with Its Anti-Hitler Coalition Allies (June 1941—May 1943)" (Anatoly Salkov)

After the beginning of Soviet-German war issues connected with Romania and Hungary took a significant place in the USSR relations with Great Britain and the USA. Firstly, the USSR urged its allies to declare war on Germany’s satellites, which had not been done until December 1941. Secondly, the issue of borders in the Carpathians-Danube region was very acute, including the recognition of the new Soviet border. Thirdly, the discussion of the scenarios of the post-war order in Central and South-Central Europe began.

An important step in the solution of these problems was the Foreign Minister A. Eden’s visit to Moscow in December 16—20, 1941 and the discussion of the general plan of European borders reorganization put forward by J. Stalin. Other steps included an unproductive attempt to start the planning for the post-war period in December of 1941—January of 1941, the establishment of the Commission on Peace Treaties and Post-war Settlement at the People’s Commissariat of Internal Affairs (the Litvinov Commission) in August 1943, the development of vast Soviet concepts of the post-war settlement and national and territorial changes in October 1943 (the Dekanozov memorandum) and in January 1944 (the Maisky Memorandum). The Transylvania issue which was the subject-matter of the Hungary-Romania territorial debate involving the interests of all warring countries played an important role in these events, documents and concepts.

Beginning with 1942 the liberal opposition both in Romania and Hungary seeked a reserve option in case of Germany’s defeat so as to decide the Transylvania question in their favour. Romania gained a major advantage in this respect after the coup d’etat of August 23, 1944 and the declaration of war on Germany. Starting with June 1944 the Litvinov Commission worked at the assessment of historical and ethnic arguments for the right to possess Transylvania. Four possible variants of the solution of the problem were developed: 1) leave the situation as it was, meaning the recognition of the second Vienna Arbitration decision from August 30, 1940, which was politically impossible; 2) give the province to Hungary, which was out of the question but "not quite"; 3) give the province to Romania in exchange for a strong guarantee of close and lasting cooperation with the USSR; 4) establish an independent Transylvania state, to which most of the Litvinov Commission inclined.

On September 12, 1944 Romania concluded an armistice agreement, Article 19 of which provided that the Allies considered the Vienna Arbitration null and void and "agreed on Transylvania (or its most part) to be returned to Romania". This clause contained a possibility for a scheme which permitted Moscow to successfully play the Transylvania card: as a result of two visits of A. Vyshinsky to Bukharest in November-December 1944 and February—March 1945 the USSR was active in the development of two government crises and guaranteed the formation of the pro-Communist cabinet of P. Groza on March 6, 1945. Bukharest’s award was Northern Transylvania which had been lost in 1940. By this Moscow achieved the set of decisions on Transylvania issue which secured Soviet political and ideological interests. The content of these decisions and their implementation mechanism were the subject of debate at various levels for the next 3 years but they remained practically the same.

"Regional Policy in China’s Foreign Policy Strategy in the Post-Cold War Period" (Vitaly Borovoy)

Since the end of the Cold War geopolitical situation around China has changed considerably, creating new opportunities as well as challenges for Beijing’s foreign policy. The collapse of the USSR meant that the threat to China’s northern border disappeared alltogether, making the country’s external environment more stable and predictable than ever before. Nonetheless, the growing power of China is perceived by its neighbors as a potential disaster, which provides the US with an opportunity to shape its policy of containment directed against China. This article argues that development of closer ties with China’s neighbors, preventing them from becoming a threat and a part of containment circle, as well as the desire to gain preeminent influence in the peripheral zone will be at the heart of PRC’s strategy on the world arena for the next few decades. Such developments dovetail nicely with some traditional patterns of Chinese relations with the outside world; they are supported by some outstanding researchers in Chinese intellectual community and could become a jumping board for gaining superpower status by China.

"Access to Foreign Markets after the Uruguay Round: Tariff Conditions" (Elena Davydenko)

The author studies tariff conditions of access to foreign markets after the Uruguay round of trade negotiations within the GATT/WTO. The analysis performed shows that despite absolute dependence of custom tariffs for industrial and agricultural articles, both developed and the developing countries as well as countries with transitive economies protect their producers with tariff methods. While, in the developing countries the average level of customs duties is at 3—5%, there are peak tariffs of hundreds percent for the most sensitive produce. In the developing countries tariffs exceed the level of 12% more often than in the developed countries, though these tariff peaks remain mainly within 12—30% andonly in few cases exceed 100%. The problem of peak tariffs can be found in six sectors: 1) staple food produce of agriculture; 2) fruits, vegetables, fish; 3) food industry; 4) textile goods and clothes; 5) footwear, leather, goods for travel; 6) automobile industry and hi-tech products.

However, not only the tariff amount but its structure as well can lead to deformation of international industry and trade conditions creating additional barriers for the access to the markets. Almost all mentioned states have a higher rate of customs protection of producers compared to the nominal rate of customs tariff for the ready-made products, inasmuch as significant tariff interest growth from raw materials to the ready-made produce can be observed.

It is advisable for the Republic of Belarus and its main trade partners such as Russia, Ukraine and Kazakhstan to take a single position: to join the WTO only on the terms which are standard for all “old” members of the organization using the methods and instruments of protection of the domestic market from the increasing competition traditionally used by the member-states of this organization.

"International and Belarusian Experience in Regulation of the External Migration of Labour" (Valentina Migas, Alexandra Nechai)

The article contains the analysis of the global trends of the external migration of labour and the problems of national, interstate and international processes regulation arising from it. They authors give the description of normative and legal base of immigration and emigration, programmes that encourage emigrants to return, as well as critical analysis of new approaches to the migration policies of national states (role of international aid, foreign direct investments etc.).

Special attention is rendered to the condition, potential and problems of regulation of external labour migration in the Republic of Belarus.

"The Evolution of the Policy of Promotion of Foreign Investments into the Economy of South Korea After the 1997 Financial Crisis" (Gil Kun Suk)

Korea is actively promoting foreign investments to overcome the crisis situations and to implement structural transformations in the economy of the country. However, the modern policy of foreign capital attraction has not been shaped at once and has gone through a number of stages. Direct foreign investments are very convenient because they allow stable use of foreign capital for a long time without payment of interest. Besides, they give other positive results such as raising employment, introduction of new technologies and modern management techniques.

But despite these positive points there was such a situation in the Republic of Korea when the population was against foreign companies’ taking over Korean companies and entering Korean domestic markets. In 1997 South Korea suffered the currency crisis. In those conditions the government intensified its efforts on attracting direct foreign investments into the country, considering this activity as a way to overcome the continuing economic crisis. As a result, a new law on promoting foreign investments was adopted and came into force on February 17, 1998. This law did not only cover new investments from abroad but also promoted economic and investment activity of the transnational corporations already operating in Korea. The government reduced the restrictions on the foreign investments quotations at the Korean stock exchange. These measures resulted in a better dynamics of the investments attracted.

It is necessary to constantly improve legislation to attract foreign investments into the economy. Still more important is precise observance of the legislative norms regarding the rights and guarantees of foreign investors.

"The Payment Union of Belgium and Luxembourg: Historical Experience and Application Prospects" (Stanislav Tkachenko, Nadezhda Kozlovskaya)