ARTICLE:
THE RECOGNITION OF GOVERNMENTS UNDER INTERNATIONAL LAW:
THE CHALLENGE OF THE BELARUSIAN PRESIDENTIAL ELECTION
OF SEPTEMBER 9, 2001 FOR THE UNITED STATES
Ethan S. Burger, Esq.*
* Research Associate Professor,
School of International Service, American University, Washington,
D.C. Mr. Burger holds a law degree from the Georgetown University Law Center (1989, cum laude)
and a B.A. from Harvard University
(1981, magna cum laude).
SUMMARY:
... Nonetheless, the apparent rapprochement between the United States and Russia, as well as Belarus' alleged training of Iraqi military personnel and export of weapons to states that make those weapons available to terrorist organizations, as discussed more fully below, might ultimately prove President Lukashenka to be wrong. ... This effort gives rise to several critical political and philosophical issues: (1) the posture the OSCE, other international organizations such as the EU, the United States, and NGOs should take towards elections in Belarus - in particular the September 9, 2001 Belarusian Presidential Election; (2) whether an organization or country's willingness to act as an observer legitimizes what might be viewed as an illegitimate process; (3) whether President Lukashenka's victory should be acknowledged if it occurred pursuant to rules structured to ensure his victory; and (iv) whether President Lukashenka should be recognized as the legitimate Belarusian head of state if despite his harassment of the opposition, the independent media, and his possible physical elimination of potential rivals if he nonetheless won an election held in conformity with international standards. ... Given the short time permitted for both a candidate to begin a campaign in order to be placed on the ballot, as well as the time between placement on the ballot and the presidential election, the advantage of incumbency and the lack of vigorous independent media strongly favored President Lukashenka. ...
When a people tolerates being compelled, this tells much about a people. n1
- Aleksandr Veshnyakov
Chairman of Russia's Central Election Commission Russia does not influence the election because Lukashenka offered factories in return for his victory. But the situation is very bad for him. Russian oligarchs will receive no factories for their support because Lukashenka will cheat them; this is when Russia voices its clear and unequivocal position. That is why I believe we should start thinking now about what to do after the election. n2
- Pavel Sheremet
Head of the Special Information Project Department
Russian Public Television Channel (ORT)
TEXT-1:
[*107] During the September 10, 2001, celebration in honor of his victory in the Belarusian presidential election conducted the previous day, President Aleksandr Lukashenka n3 indicated that those who criticized his policies in the past would have to accept the decision of the Belarusian electorate. n4 He seemed confident that in the [*108] aftermath of his overwhelming victory, the leaders in principal Western countries would have to learn to deal with him and that he welcomed such a situation. n5 President Lukashenka exuded similar confidence that complaints about the nature of his rule and his treatment of political opponents would fade over time. n6 The terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, and subsequent events appear to demonstrate President Lukashenka's prescience. Nonetheless, the apparent rapprochement between the United States and Russia, as well as Belarus' alleged training of Iraqi military personnel and export of weapons to states that make those weapons available to terrorist organizations, as discussed more fully below, might ultimately prove President Lukashenka to be wrong.
This Article examines the domestic and international context of the September 9, 2001, Belarusian Presidential Election (Election), its implications for the member states of the Organization for Security and Cooperation in Europe (OSCE), and the potential consequences for the Belarusian state and people. n7 Section I offers an overview of the political situation and the basis of political power in Belarus. Section II discusses the Election's legal framework, its political context, and the results of the balloting, including [*109] the OSCE's evaluation of it. Section III examines the international legal framework for the recognition of governments under international law. Section IV addresses the political consequences of the Belarusian election for the OSCE, with an emphasis on the United States and Russia. Section V analyzes the implications of the Election for both international law and the international community's policy towards President Lukashenka's government. This analysis contends that where an election does not comply with internationally recognized electoral norms irrespective of whether they are deemed to be "political" or "legal," its outcome should be treated as illegitimate by the world community through the withholding of diplomatic recognition of the resulting "government." The failure by states to do so hinders the development of international law and the furtherance of human rights, while undermining existing international legal norms.
I. Overview of the Political Situation and the Basis of Political Power in Belarus
The Republic of Belarus (Belarus), achieved its independence upon the official demise of the Soviet Union in December 1991. n8 In November 1996, President Aleksandr Lukashenka organized a referendum on a number of issues, including the introduction of major amendments to the country's 1994 Constitution (1994 Constitution). n9 Although a majority of voters purportedly voted to amend the 1994 Constitution, the Presidium of the Belarusian Supreme Soviet (the legislature at the time), the Belarusian Constitutional Court, the European Union (EU), the OSCE Troika, the OSCE Parliamentary Assembly, and the United States have refused to recognize the results as "legitimate" for multiple reasons. n10 [*110] These include: (1) the fact that the 1994 Constitution did not allow for amendments introduced by referendum; (2) Lukashenka-biased media coverage and the inadequacy of the information provided to the electorate; and (3) numerous voting irregularities, all of which are discussed below. n11 Unlike other OSCE member states, Russia took the position that the referendum was binding. n12
In contrast to the 1994 Constitution, the radically amended 1996 Constitution provided the President with expansive powers. For example, under the 1996 Constitution, the Belarusian President appoints, and in most cases, may remove the following officials: (1) members of the Cabinet of Ministers (with the consent of the Chamber of Representatives), (2) the executive heads of the country's major political subdivisions, (3) six of the twelve Constitutional Court Justices, and (4) all other judges (appointed with the consent of the Council of the Republic). n13 President Lukashenka also has the authority to designate the heads of the country's Committee for State Security (KGB) and the Ministry for Internal Affairs (MVD), both organizations generally considered to be loyal to him. n14 Also, even though the 1996 Constitution places legislative authority in a two-chamber National Assembly n15 (a Chamber of Representatives and a Council of the Republic, with one-third of the members of the latter body appointed by the President), n16 President Lukashenka has largely ruled through edicts and decrees having the force of law.
President Lukashenka has kept his political opponents off-balance by bringing politically motivated charges against them. n17 The [*111] Belarusian tax authorities and other state bodies harassed the country's independent press, non-governmental organizations (NGOs) and independent lawyers. n18 Lawyers engaged in human rights activities, such as Vera Stremkovskaya, Nadezhda Dudareva, and Gary Pogonyailo, were frequent targets of such harassment. n19
Under the 1994 Constitution, a presidential election should have been held in the spring of 1999. n20 At that time, opposition activists held what amounted to a rump election between former Belarusian Prime Minister Mikhail Chigir and then leader of the Belarusian National Front Zenon Paznyak. n21 Victor Gonchar, Deputy Chairman of the disbanded 13th Supreme Soviet, n22 served as Chairman of the Electoral Commission for this election. n23 The Belarusian Government used the KGB, MVD, and other state personnel to disrupt this process, inter alia, by arresting Mr. Gonchar and fourteen members of his electoral commission in February 1999 and Mr. Chigir on March 30, 1999. n24 In addition, it used and continues to use such personnel to disrupt opposition rallies. n25
On May 19, 1999, Gonchar's Central Electoral Commission (Commission) reported the final results of the opposition-sponsored presidential election. n26 It claimed that approximately four [*112] million citizens representing fifty-three percent of the Belarusian electorate voted. n27 While such a turnout should have been sufficient for a valid election, the Commission found that due to irregularities, such as harassment by the authorities that prevented the candidates from conducting effective electoral campaigns, n28 and Mr. Paznyak's last minute withdrawal as a candidate, the election was invalid. n29 Mr. Paznyak contended that the Commission had inflated the figures for persons voting. His supporters later claimed that their polls indicated that the election's results were not binding n30 and that he defeated Mr. Chigir. n31 Although the Commission announced it would hold another election within three months, Mr. Gonchar told the Reuters News Service on May 15, 1999, that "the point of the elections was to show that Lukashenka [was] not legitimate and start his removal. Only after that can we hold free, democratic elections." n32
The 1994 Constitution provides that if the presidency becomes vacant, the Chairman of the Supreme Soviet assumes the presidency. n33 Thus, from a constitutional standpoint, Semyon Sheretsky, the Chairman of the disbanded 13th Supreme Soviet, should have become the acting president of Belarus as of July 21, 1999, upon the expiration of the five-year term to which President Lukashenka was elected. n34 Not surprisingly, President Lukashenka did not permit this to occur, and Mr. Sheretsky fled to Vilnius, Lithuania, out of a concern for his safety. n35 Mr. Sheretsky's decision not to declare himself Belarus' acting president or form a government-in-exile [*113] weakened the legal position of the forces opposed to President Lukashenka's continued rule. n36
In the aftermath of the rump election, the OSCE Advisory and Monitoring Group for Belarus (OSCE AMG) led by Ambassador Hans-George Wieck n37 and the Working Ad Hoc Group for Belarus of the OSCE Parliamentary Assembly chaired by Adrian Severin, began efforts to establish a mechanism for holding both legitimate parliamentary elections in 2000 and Presidential Elections in 2001, discussed below, by seeking to promote a dialog between President Lukashenka and opposition forces. n38
This effort gives rise to several critical political and philosophical issues: (1) the posture the OSCE, other international organizations such as the EU, the United States, and NGOs should take towards elections in Belarus - in particular the September 9, 2001 Belarusian Presidential Election; (2) whether an organization or country's willingness to act as an observer legitimizes what might be viewed as an illegitimate process; (3) whether President Lukashenka's victory should be acknowledged if it occurred pursuant to rules structured to ensure his victory; and (iv) whether President Lukashenka should be recognized as the legitimate Belarusian head of state if despite his harassment of the opposition, the independent media, and his possible physical elimination of potential rivals if he nonetheless won an election held in conformity with international standards.
[*114]
II. Principal Features of the Legal Framework for the September 2001 Presidential Election and its Political Context
The Election Code of the Republic of Belarus n39 (Electoral Code) constitutes the principal normative act establishing the rules for presidential elections. n40 The Chamber of Representatives adopted it on January 24, 2000; the Council of the Federation subsequently approved it on January 31, 2000, approximately six months after it was amended. n41 The Electoral Code replaced a number of items of then-extant legislation.
The Electoral Code assigns the Belarusian president broad powers for determining the organizational structure of elections, though the 1998 Belarusian Law "On the Central Commission of the Republic of Belarus for Election and the Conduct of Republican Referenda" (Election Commission Law) establishes specific norms concerning the formation and conduct of the Central Election Commission. n42 Article 3 of the Election Commission Law provides that the Commission consists of twelve individuals, half of whom the Belarusian president designates, and half of whom the Council of the Republic selects, one-third of whom the Belarusian president appoints. n43 Not surprisingly, President Lukashenka's supporters constituted at least the overwhelming majority if not all of the members of the Central Election Commission; his supporters dominated the local polling commissions as well. n44 In hindsight, it was probably na
Under Belarusian law, all Belarusian citizens above the age of eighteen may vote. n46 Each election district must maintain a list of individuals eligible to vote. n47 Each polling location may have no fewer than 20 voters or more than 3,000. n48 Individuals eligible to vote must establish their identity before casting their votes. n49 Citizens must be afforded privacy when casting their ballots. n50
Under the Electoral Code, the process for a person to register as a candidate for president begins thirty-five days and ends twenty-five days before election day, though the Central Election Commission has the right to extend this period for up to five days. n51 In order to initiate the process to be listed as a presidential candidate, at least 100 citizens must submit an application to the Election Commission. n52 In order to receive a place on the ballot, a candidate must submit a petition with 100,000 signatures of Belarusian citizens eligible to vote along with financial disclosure statements. n53 The short time frame makes it exceedingly difficult for opposition candidates to organize and be placed on the ballot, all of which, as intended, worked to President Lukashenka's advantage.
[*116] The Electoral Code provides for the participation of accredited international and domestic election observers as well as media access to polling places. n54 Such observers may not engage in "agitation in any form" or questioning citizens on how they voted. n55 This prohibition on exit polling, however, eliminates a common mechanism to ascertain whether election fraud occurred.
One of the most controversial provisions of the Electoral Code is Article 53, which allows for voting prior to election day. n56 It provides, inter alia, that voters not having the "possibility" n57 to cast a ballot on the day of an election at their place of residence have the right to vote up to five days before the election. n58 Ballots of such voters must be placed in a designated ballot box. While such ballot boxes were to be sealed and kept in a safe overnight, it is unclear whether the integrity of the process was upheld in the Election, and if the boxes were not in fact opened and filled with ballots for Lukashenka during the pre-voting process. Also interesting is that Article 53 explicitly provides that no grounds exist for challenging the right of a citizen to cast a vote in such a manner. n59 These issues illustrate how Article 53 provisions may increase the possibility of pre-election day fraud.
Perhaps an equally controversial feature of the Belarusian electoral system is the system of campaign finance, which sets strict limits on campaign expenditures, with funds coming out of the state budget. n60 Given the short time permitted for both a candidate to begin a campaign in order to be placed on the ballot, as well as the [*117] time between placement on the ballot and the presidential election, the advantage of incumbency and the lack of vigorous independent media strongly favored President Lukashenka. This is the case even though the Electoral Code provides that all candidates shall have access to the mass media, including state television and radio. n61 The limitations on campaign spending resulted in what the OSCE Final Report characterized as the "non-campaign." n62
The Electoral Code sets out the method tallying of votes. n63 The local election commission tallies in its area's polling place. n64 Although all voting is conducted using a written paper ballot, the ballots are not numbered. n65 As the voting system is therefore non-traceable, the opportunity to stuff the ballot box significantly increases.
Like many European countries, Belarus requires a candidate to receive more than fifty percent of the vote to avoid a second round run-off between the two top candidates. n66 The OSCE Final Report identified the following shortcomings in the legislative framework for the Belarus election: (1) the establishment of certain rules impacting the election process by presidential edict; (2) inadequate protections to ensure the integrity of the system of voting and transparency during the tabulation process; (3) restrictions on observers; (4) restrictions on free and fair campaigning; (5) inadequate time and procedures for challenging decision(s) of the Central Election Commission; and (6) bias of both Central and Local [*118] Election Commissions. n67 As described below, these shortcomings in the legal framework played a significant, though possibly not decisive, role in determining the outcome of the election.
A. Opposition Electoral Strategy
After five years of President Lukashenka's rule, the "disappearance" of two of the potentially strongest presidential candidates - Mr. Gonchar and former Minister for Internal Affairs Yuri Zakharenko - limited financial resources of potential opposition candidates, and the absence of a vigorous opposition or independent media, it is unsurprising that the opposition before the election was fairly atomized. n68 Initially, there were twenty-two candidates for the Belarusian presidency, n69 but ultimately, only Messrs. Lukashenka, Domash, Goncharik and Gaidukevich obtained the required 100,000 signatures to secure a place on the official presidential ballot. n70
[*119] The principal opposition candidates, Mr. Chigir, Mr. Domash, Mr. Kalyakin and Mr. Kozlovsky, withdrew from the campaign and declared their support for Mr. Goncharik to "remove Belarus from its international isolation." n71 Many possible motivations for this decision exist: (1) first, they likely feared splitting the opposition to the benefit of President Lukashenka, who already enjoyed significant advantages arising from his control of the state apparatus and also name recognition; (2) Mr. Goncharik, as head of the largest official trade union organization, was known to a large share of Belarusian voters - an important factor for a majority of the conservative Belarusian electorate; and, (3) as a Soviet-era union official, it was more likely that Mr. Goncharik would be more politically acceptable to Russian President Vladimir Putin than some of the other candidates. n72
B. President Lukashenka's Last-Minute Election Ploys
In late May 2001 indications existed that President Lukashenka could actually lose the election. According to certain polls, seventy percent of Belarusians were dissatisfied with the lack of progress of economic reforms. n73 Yet despite the economic difficulties at the time, it was believed that President Lukashenka could rely on the support of a solid forty-five percent of the electorate. n74 Simultaneously, reports began to filter in from foreign media sources. Russian state-run ORT n75 aired programs about the five opposition presidential candidates, which President Lukashenka termed "provocations." n76 The Western and even the Russian press began to report on Mr. Goncharik's and other opposition candidates' statements that death squads were operating in Belarus to eliminate political opponents of the regime, such as Messrs. Gonchar and Zakharenko. n77
[*120] Since the state-sponsored Belarusian media did not report about the "disappearance," accounts of these incidents circulated via e-mail messages and hand delivered leaflets. n78 President Lukashenka has denied the allegations that government-sponsored death squads killed two of his opponents. n79 Ironically, prior to the release of a videotape containing interviews with individuals having first-hand knowledge of the death squads, only an estimated forty percent had any knowledge of the alleged killings - the denials made the public more aware of the allegations. n80
Perhaps as a consequence of this negative publicity, President Lukashenka left little to chance. He cracked down harder on the independent media. n81 While ultimately permitting international election observers, though denying visas to some, he delayed their entry into the country up until the last three weeks of the campaign, thus reducing their ability to conduct their monitoring function. n82 He accused OSCE Ambassador Wieck and foreign election observers of attempting to interfere in Belarus' domestic affairs. n83 In fact, Belarusian Foreign Minister Mikhail Khvostov threatened [*121] to expel Ambassador Wieck; n84 President Lukashenka later modified that threat by stating that Ambassador Wieck would have to leave the country immediately after the election. n85
The circulation of the pro-Lukashenka newspaper, Sovetskaya Belorusiya, dramatically increased and was distributed free-of-charge just prior to election day. n86 Almost simultaneously, Belarusian law enforcement personnel seized American computer equipment used to publish the independent newspaper, Narodnaya Volya, detained persons distributing opposition newspapers, and arrested antigovernment demonstrators. n87 In addition, certain opposition web sites were blocked and e-mail transmission and telephone service cut-off. n88 These circumstances probably reduced the turnout of pro-Goncharik voters.
The military undertook large exercises to increase some citizens' sense that the North Atlantic Treaty Organization was contemplating action against Belarus. n89 The media gave these exercises great prominence in the news, and President Lukashenka warned his opponents that he was not going to be the next Slobodan Milosovic, n90 whom state security forces declined to assist in his [*122] attempt to seize power after losing an election. n91 Furthermore, he accused "'countries with mature democracy' of an 'onslaught' on Belarus, holding back economic progress." n92
Perhaps in order to reduce the number of votes by young people, university students were granted free travel the weekend of September 8-9, 2001. n93 Since many students had registered to vote where they enrolled in school, this may have lessened the number of younger, educated voters who might have favored the opposition.
C. The Official Electoral Results
According to the official returns of the Belarusian Central Election Committee, the results of the Election were as follows: n94
[tdg1n,m'Republic of',ql [tcg1m,mp1,qc,vu1 [tcg1m,m'parliamentary',qc,vu1 [tcg1m,mp1,qc,vu1 [tcg1m,mp1,qc,vu1 [tcg1m,mp1,qc,vu1 [tcg0,m1n,ql] [dr r1,lg1,2] [dr r2,cg2,2] [dr r3,cg3,2] [dr r4,cg4,2] [dr r5,cg5,2] [dr r6,cg6,2] [dr r7,rc7,2] [hrl 2,r1,r7][bvl r1,r2,r3,r4,r5,r6,r7] Oblast Voter Turnout -
Presidential Election 2001 Voter Turnout -
parliamentary Election 2000 Votes for Sergei Gaidukevich (% of Total) Votes for Vladimir Goncharik (% of Total) Votes for Aleksandr Lukashenka (% of Total) [hrl 2,r1,r7] Brest 85.84% 60.90% 2.44% 15.73% 76.17% [hrl 2,r1,r7] Vitebsk 84.67% 60.30% 2.41% 12.76% 77.45% [hrl 2,r1,r7] Gomel 85.74% 64.50% 1.76% 8.34% 85.00% [hrl 2,r1,r7] Grodno 85.67% 67.00% 2.87% 15.08% 76.96% [hrl 2,r1,r7] Mogilev 85.26% 62.40% 2.17% 9.84% 83.03% [hrl 2,r1,r7] Minsk 84.12% 62.20% 2.32% 14.84% 76.56% [hrl 2,r1,r7] Minsk City 77.59% 49.00% 3.37% 30.50% 57.37% [hrl 2,r1,r7] Republic of
Belarus 83.86%
6,169,087 votes 60.90% -
N/A 2.48%
153,199 votes 15.65%
965,261 votes 75.65%
4,666,680 votes [hrl 2,r1,r7]
The OSCE Final Report did not attempt to verify these results by examining the actual documentation from the various polling stations, but made note of two facts. First, the "Independent Observation" network concluded that President Lukashenka received 70 percent of the votes from the polling stations, whereas the OSCE-sponsored Limited Election Observer Mission, which collected data from 41 of 161 territorial election districts, concluded President Lukashenka was given 76.6 percent of the votes from locales [*123] its members observed. n95 Second, the figures for twenty-nine precincts actually observed by members of the ACEEEO delegation resulted in the following tabulations: n96
[tdg1n,mp1,ql] [tcg1m,mp1,qc,vu1] [tcg0,m1n,ql] [dr r1,lg1,2] [dr r2,cg2,2] [dr r3,rc3,2] [hrl 2,r1,r3] [bvl r1,r2,r3] Alexsandr Lukashenka 64.54% [hrl 2,r1,r3] Vladimir Goncharik 23.77% [hrl 2,r1,r3] Sergei Gaidukevich 2.87% [hrl 2,r1,r3] Against All & Invalid Votes 8.47% [hrl 2,r1,r3]
The percentage turnout in polling locales where ACEEEO members observed the final tallying was 80.94 percent. n97
Upon the announcement of the preliminary results by the Central Election Commission, Mr. Goncharik submitted a petition requesting a second round of voting. n98 According to Goncharik's polling data, President Lukashenka received less than fifty percent of the vote. n99 He argued that President Lukashenka received only 46.7 percent of the vote to his 40 percent. n100 Not surprisingly, the Commission, chaired by Lukashenka appointee Lydia Yermashina, rejected Mr. Goncharik's petition. n101 Mr. Goncharik subsequently petitioned the Belarusian Supreme Court. n102 As expected, the Court denied this appeal on September 27, 2001. n103
Even the numbers cited by Mr. Goncharik in his challenge may generously reflect voter support of President Lukashenka. n104 As the OSCE Final Report noted:
[*124]
Violations committed against domestic observers and in some cases international observers raised questions about the integrity of the process. These questions were further aggravated when combined with the high turnout during the permissive early voting process (14-19%), the mobile vote (4.5%), n105 and the absence of transparency during the critical tabulation of the nationwide aggregated voting results. n106
Moreover, the number of ballots printed exceeded the number of voters by 7 percent, and the election rolls increased by over 100,000 votes at the last minute increase in the size of the election rolls. n107 Nonetheless, despite the lopsided nature of the results and the low vote tally for Mr. Goncharik, particularly in Minsk, n108 which was considered to be his stronghold before election day, no concrete evidence existed of widespread fraud sufficient to alter the outcome of the election. In a sense, President Lukashenka discovered that he did not need to steal the election because it had already been stolen. He seemed to acknowledge the existence of pre-election day vote tampering by noting that even if one subtracted the approximately fifteen percent of the electorate that engaged in pre-election voting, he still would have won. n109
Nonetheless, the views of the Belarusian state and non-state electoral officials polled by Minsk's Independent Institute for Socioeconomic and Political Studies are significant:
. 85% were dissatisfied with the official electoral outcome;
. 95% believed that the candidates were not competing on an even playing field; and
. 80% considered the elections to be neither free nor fair. n110
One must not assume that electoral fraud can explain the outcome of the voting. As noted many years ago by Michael Kinsley, then-editor of The New Republic, "The crime is not what's illegal, the [*125] crime is what is legal." n111 While it is possible or even likely that fraud occurred in the counting process, n112 most data show that this did not alter the ultimate result. In fact, data from post-election surveys conducted by Zerkala, an entity affiliated with the independent wire service BelaPAN, indicate that President Lukashenka carried Minsk by forty-four percent to thirty percent. n113 Since almost forty percent of the electorate resides in Minsk, it is at least conceivable that President Lukashenka did not win more than fifty percent of the votes cast in the entire country thus necessitating a run-off between the two leading candidates. n114
The Central Election Commission gave President Lukashenka a victory of fifty-seven to thirty percent over Mr. Goncharik. n115 Significantly, as noted above, earlier in the campaign BelaPAN reported that Mr. Goncharik was leading in the country's capital city; n116 this raises the question of why a last-minute shift in favor of President Lukashenka occurred.
Furthermore, the ACEEEO election observer team, noting numerous violations of the Electoral Code with respect to actual balloting and counting, concluded that in the absence of such violations, President Lukashenka's victory would not have occurred. n117 While the ACEEEO found numerous election law violations, it concluded that President Lukashenka actually won the election, albeit with the extensive use of his ability to harass the opposition, denying [*126] them access to the media, and stacking the election commissions. n118
D. OSCE's Assessment of the Results
According to the OSCE Final Report, fundamental flaws plagued the electoral process including:
- A political regime unaccustomed to opposition that everything in its power to block it;
- Executive structures with extensive powers, including rule by presidential edict, which commensurate legislative controls have no power to check but rather allow arbitrary modification of electoral environment;
- A legislative framework that fails to ensure the independence of election administration bodies, the integrity of the vote tabulation, free and fair campaign conditions, and which imposes excessive restrictions on campaigning and observers;
- Legal provisions for early voting that do not guarantee the proper control of that process or the counting of early votes;
- A biased election administration system that depends too heavily on the executive branch from the national to the local community level;
- A campaign environment constructed to seriously disadvantage opposition candidates;
- A campaign of intimidation directed against opposition activists, domestic observation organizations, opposition and independent media, and a smear campaign against international observers; and
- Highly biased State-controlled media and censorship and the independent print media. n119
At the same time, the OSCE Final Report noted some positive elements of the process, which may constitute the basis for future improvements:
[*127] - An emerging civil society mobilized and deployed many thousands of domestic observers, including those favorable to the government; n120
- The democratic opposition forces overcame differences and jointly contested the election, expressing greater and maturing political and democratic awareness;
- Three candidates competed in the presidential election, giving voters a genuine political choice, although the restrictive campaign regulations and practices made it extremely difficult for the voters to be fully informed about the alternatives;
- International experts helped to improve some aspects of the legislative framework for elections;
- The administrative preparations were conducted in a well-organized manner; the legal terms of the formation of electoral commissions and the registration of candidates were respected within the existing legal framework; and
- Voting occurred in an orderly fashion in accordance with the legal provisions. n121
The OSCE Final Report, however, concluded that "the 2001
presidential election process failed to meet OSCE commit-
ments for democratic elections formulated in the 1990
Copenhagen Document n122 and the Council of Europe stand-
[*128] ards." n123 Nonetheless, one must not lose sight of the fact that the international community views OSCE obligations "politically, as opposed to legally, binding." n124
III. International Legal Framework for the Recognition of Governments Under International Law and Its Relationship to the Lukashenka Regime
In recent years, the recognition of governments has become distinct from the recognition of states. n125 The Restatement (Third) Foreign Relations Law of the United States (Restatement) provides that "[a] state cannot recognize or accept a regime as a government without thereby accepting the statehood of the entity which the regime claims to be governing. A state can, however, recognize or treat an entity as a state while denying that a particular regime is its government." n126 Thus, the theoretical non-recognition of President Lukashenka as the legal and legitimate president of Belarus need [*129] not entail a refusal by another state to recognize Belarus as a sovereign country under international law.
It is widely acknowledged that the recognition of a government is a discretionary, sovereign decision, unless otherwise limited by treaty or international law. n127 That is, the decision to recognize a government constitutes a principally political decision. International law, per se, does not preclude a state from refusing to recognize a government it has deemed unfairly elected or otherwise offensive for political or policy reasons. n128
Section 204 of the Restatement notes that "under the Constitution of the United States, the President has exclusive authority to recognize or not to recognize a foreign state or government, and to maintain or not to maintain diplomatic relations with a foreign government." n129 The impact of non-recognition is generally limited to denying an unrecognized government access to U.S. courts and ignoring its ownership of property belonging to the state that the government purports to represent. n130
According Dr. Stefan Talmon of the University of T bingen, traditional notions of sovereignty provide each state the right to determine its own form of government without the threat of outside interference. n131 This does not mean, however, that because a government exercises authority in a particular state, other states must confer recognition on its government. In recent history, the most common situations in which questions of non-recognition arose involved separatist movements seeking independence or leaders of a coup d'etat seeking international legitimacy. n132
[*130] Customary international law arising from these categories of cases holds limited relevance in a state's development of an analytical framework for its policy towards Belarus for two reasons: (1) no region of the country seeks to secede from Belarus; and (2) no organized group has seized power by force or formally seeks recognition as the country's legitimate government under the Belarusian Constitution.
As discussed in detail infra, in 1994, President Lukashenka was legally elected president he unconstitutionally extended his term in office in 1996, and then won a flawed vote for re-election in 2001. n133 Currently within Belarus, no group of individuals appears to possess the legal authority or organizational skills to lay the groundwork to assert the right to act as the legitimate ruler of the country. These circumstances present an unusual, but by no means unique situation with respect to the dilemma of whether to recognize a government whose claim to power arises from elections or other mechanisms that are incompatible with international human rights norms, such as the 1948 Universal Declaration of Human Rights, n134 the 1966 International Covenant on Civil and Political Rights (ICCPR), n135 and other normative international documents. The absence of an organized opposition introduces a practical issue of whom various states would recognize as the legitimate government of Belarus, if they refused to recognize President Lukashenka's government.
The ICCPR does not expressly provide how citizens should exercise their political rights. The drafters apparently intended this [*131] vagueness so as not to require a single form of political system for all countries. n136 The difficulty in implementing these requirements where no established political opposition with a credible claim on power exists is by no means unique to Belarus, but occurs in the vast majority of countries where elections are held largely for show with little or no possibility of producing genuine political change. n137 Interestingly, even in dictatorial regimes, the leadership often feels compelled to go through some sort of electoral process, even if it is only for propagandistic purposes.
One must pay close attention to the legal and diplomatic nuances involved when discussing the meaning of recognition. n138 [*132] Some scholarship on recognition emphasizes the importance between de facto and de jure recognition, with the former being "provisional, conditional, incomplete and or (more easily) revocable," while the latter is "final, unconditional, express, full, and/or irrevocable." n139 Such a distinction is not always evident in practice. n140 Consequently, it appears that the traditional literature on recognition of governments does not directly address situations in which a government exercises power by means of a one-sided, if not unlawful, electoral process that fails to comply with international election standards.
Perhaps Professor M. J. Peterson of the University of Massachusetts at Amherst offers a more useful analytical tool in her book, Recognition of Governments, in which she identifies "main" and "other criteria" that states have used in determining whether to recognize a government. n141 She lists as the "main criteria" playing a role in such a decision:
[*133]
(i) the ability to elicit popular support from the population;
(ii) whether the government assumed or retained power legitimately, i.e., whether it occurred pursuant to a constitutional process rather than by force;
(iii) whether the government has the ability and will to fulfill its country's international obligations, that is, whether the government will uphold prior obligations entered into by its predecessors; n142
As "other" criteria playing a role in the decision-making process, Professor Peterson examines:
(iv) whether the government could survive in the absence of the active military support of another state, ensuring that it is not a puppet state;
(v) the state's willingness to honor other states' rights by observing international law;
(vi) the manner in which the government seized power, namely whether it used undue violence;
(vii) whether the government's origins conform with international law; n143 and
(viii) the government's willingness to respect the human rights of its citizens by abiding by international human rights standards. n144
Thus, according to the above criteria, a government is entitled to recognition if: (1) it enjoys active or passive popular support and governs in accordance with the rule of law domestically, i.e. criteria i, ii, iv, vi, and viii; and (2) it does not threaten the interests of the international community, i.e. criteria iii, v, and vii.
Consequently, a government that lacks the popular support, governs in violation of domestic legislation and threatens members of the international community should not receive recognition. The Lukashenka government thus offers a complex case. While it relies on intimidation (or worse) to rule, at least at the time of the election, it seemed to enjoy at least passive support. Whether President [*134] Lukashenka would enjoy such support if he did not have the ability to dominate the country's mass media is uncertain. Similarly, though he has been highly criticized for failing to observe international human rights norms, the legal structure of the 1996 Constitution grants him significant powers. It also has not been firmly established whether he threatens the interests of the international community. Notably, Belarus does not threaten the independence of its neighbors.
E. The Case for Eliminating Distinctions Between Political and Legal Obligations With Respect to International Electoral Standards and Human Rights Standards
To reach a position on the first criteria to determine whether a government is entitled to recognition, one must be vigilant - which requires not only the thorough monitoring of elections, but also scrutiny of human rights conditions within the country. In recent years the importance of international election observation, typically under the auspices of international organizations, has taken on increasing importance. n145 Significantly, the OSCE has led in the area of election observation. n146
The OSCE AMG's election observation in Belarus served the important function of focusing international attention on the often-overlooked country and provided a vehicle to document the flaws in the political process. Though written in restrained language, the OSCE Final Report does not lend legitimacy to an illegitimate process; rather, it provides the factual basis for future political action in accordance with international law.
As discussed above, the international community has historically viewed OSCE commitments as political, rather than legally binding. Nonetheless, following the adoption of the Helsinki Final Act [*135] in 1975, n147 the participatory states undertook a series of obligations with respect to human rights. The met in Vienna from November 1986 through January 1989 where they decided to form a "Conference on the Human Dimension." n148 This Conference took place in a series of meetings in Paris (1989), Copenhagen (1990), and Moscow (1991). n149
Each meeting expanded the scope of human rights obligations of the participatory states, perhaps the most significant of which was the recognition of a right of recourse to vindicate the violation of any human rights. n150 Consequently, one need not reject the view that major human rights documents "reflect an opinion juris" and may serve as the basis to establish a customary rule under international law. n151 In this regard, Professor Lois E. Fielding makes an important point:
In the [OSCE] Copenhagen Document, each participating state makes a commitment not only to defend and protect the democratic order established within its own borders but also a commitment to defend and protect the democratic order of the other participating states against violent attack. According to the Copenhagen Document, the participating states recognize their responsibility to defend and protect, in accordance with their laws, their international human rights obligations and their international commitments, the democratic order freely established through the will of the people. ... n152
Arguably, one can construe the term "violent attack" to cover not only the violent elimination of opposition candidates, but also the use of violence to maintain political power through the intimidation of the independent media and the removal of government workers and judges who express views hostile to the ruling government. Consequently, the divide between a political and legal obligation can become less clear-cut.
While general agreement exists on the standards applicable to the election observation process, no agreement exists with respect to what states should do when such standards go unmet. While some countries have sought to mediate political solutions where an [*136] established opposition exists - such as power sharing or the peaceful transfer of power - the appropriate course of action in absence of such an opposition capable of exercising power becomes more complex, as in the case of Belarus.
It is the view of this author that in certain cases of gross and widespread violations of human rights and proof that a regime threatens the international community, such as through the support of terrorist organizations or states that threaten world peace, e.g. Iraq, grounds exist for members of the international community to examine whether steps should be taken to delegitimize such a regime.
Initially, this should entail the formal derecognition of a regime and the severance of diplomatic ties. It need not lead to the termination of ties with elements of civil society or individuals within the relevant country who may be viewed as a catalyst for positive change. Admittedly, derecognition of a regime as a government may entail significant economic, political, strategic, and humanitarian risks and must be assessed pragmatically. n153 In the case of Belarus, the risks to many Western countries of revoking recognition do not appear to be great.
IV. Political and Legal Consequences of the Election
The OSCE Final Report represents an accurate and well-informed assessment of the Belarusian Presidential Electoral process. Consistent with the OSCE Mission's role as election observers, the Final Report maintains a non-inflammatory tone. Given the extent of President Lukashenka's efforts to prevent a fair and free presidential election from occurring, only skilled professionals could react dispassionately to the situation.
Despite the numerous shortcomings in the electoral process, the OSCE and its institutions did not declare the election invalid. This reflects not only the consensual nature of OSCE decisionmaking, and the unwillingness of Russia, the Ukraine, and other successor states of the former Soviet Union to single out one of their own for non-democratic practices, but also the fact that a majority of OSCE nations do not want to change the nature of the organization's decision making. As an institution, the OSCE aims to ensure that it has the ability to conduct missions that may eventually lead to the [*137] achievement of the stated goals for its foundation, rather than act as a vehicle to conduct confrontational policies, which may threaten its very existence. Consequently, the OSCE cannot serve as an institution for promoting political change unless all the interested parties share a desire for such change.
Some OSCE member states such as Great Britain and Poland n154 have indicated that they would not take a position on the election until the OSCE issued its Final Report. n155 Even after the issuance of the Report, Ambassador Gerard Stoudman, Head of OSCE's Office for Democracy and Human Rights, announced that the OSCE would pursue a policy of engagement in Belarus, possibly including establishing better ties with the authorities. n156 For instance, Mr. Goncharik's office announced that it would seek international support for new elections. n157 Mr. Stoudman, however, urged the opposition against taking extreme positions. n158 He advised that it "should not give any pretext for repression ... we are just at the beginning of a very long process and the issue, let's face it, is that there is still a lot of support in the countryside for President Lukashenka." n159
On July 10, 2002, the OSCE Parliamentary Assembly (OSCE PA) issued its Berlin Declaration. n160 The Berlin Declaration contained a special resolution in which it (1) "called upon the Government of Belarus to live up to its OSCE Obligations and commitments," n161 (2) "urged the Belarusian authorities to cease harassment of independent media, NGOs, and human rights activists, to end politically-motivated arrests and detentions, and mount a full and transparent investigation into the death or disappearance of opposition [*138] leaders," n162 (3) "further urged the Government of Belarus to end its self-imposed isolation through the holding of free and fair parliamentary and presidential elections in a manner consistent with longstanding OSCE commitments," (4) "strongly urged the Government of Belarus to cooperate with the OSCE and its institutions, including the AMG, in facilitating compliance with OSCE commitments;" n163 and (5) called "upon the Belarus authorities to issue visas without delay to AMG diplomats appointed by the OSCE." n164 While the Berlin Declaration is a significant document in setting out the steps that the OSCE PA expects the Government of Belarus to take, it remains silent as to the actions it will take if the government ignores its recommendations.
On the first anniversary of the September 9, 2001, Presidential Election, the OSCE convened its Human Dimension Implementation Meeting in Warsaw. n165 The Meeting's first working session examined whether OSCE members were "meeting their commitments to conduct free and fair elections?" n166 The next day, Portuguese Foreign Minister Antonio Martins da Cruz, in his capacity as OSCE Chairman-in-Office, issued a statement in which he called on Belarus to honor its OSCE commitments. n167 On September 18, [*139] 2002, the participants held a special day-long session to discuss "recent norm setting developments and the possible development of election-related OSCE commitments." n168 During this session, they discussed the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) draft paper "International Standards and Commitments on the Right to Democratic Elections: A Practical Guide to Democratic Elections Best Practices" (the Guide). n169 The [*140] ODIHR will revise the Guide based on comments received from the member states and non-governmental organizations. n170
Unfortunately, numerous factors continue to prevent the OSCE from addressing the issue of noncompliance with international election standards in an effective and systematic manner. n171 First, as an organization consisting of an amalgamation of sovereign states, it can only act on a unanimous basis. n172 Undemocratic OSCE member states with poor human rights records such as Tajikistan, Turkmenistan, and Uzbekistan, would probably be reluctant to adopt steps to expel or suspend Belarus from OSCE membership, which could become precedent adverse to them in the future.
Second, states' views diverge as to whether it is best to encourage change in Belarus by isolating it further or seeking to engage President Lukashenka, potentially reformist elements within Belarus' government, and its non-governmental community in the hope of laying the groundwork for more favorable developments in the future.
[*141] While the first factor need not stand in the way of action on the part of certain OSCE Member States acting independently or under the auspices of other international organizations such as the Council of Europe or the European Union, the second factor still plays a large role in preventing more assertive foreign policy on the part of the major European countries.
A. The Official View from Washington
In prepared remarks following the OSCE Ministerial Conference held on December 4, 2001, U.S. Secretary of State Colin Powell noted:
Despite OSCE's heroic efforts led by Ambassador Wieck, the head of the OSCE Mission in Belarus, the Presidential elections in Belarus did not meet international standards. The Government of Belarus ignored the recommendations of the OSCE on what conditions would need to be established in order for free and fair elections to take place. It is unfortunate, indeed, that the government of Belarus continues to act in a manner that excludes Belarus from the mainstream of European political life. We will continue to work with our fellow OSCE member states to support the development of genuine democratic institutions and a strong civil society in Belarus. n173
About a month earlier, U.S. Ambassador Michael Kozak to Belarus made a clearer statement on U.S. policy towards Belarus in which he explained the U.S. policy of selective engagement, U.S. goals in economic relations with Belarus, and the desire to normalize relations with Belarus so long as Belarus acts in compliance with OSCE norms. n174
On November 7, 2001, U.S. Senator Jesse Helms (R-N.C.) introduced S.1645 known as the Belarus Democracy Act of 2001. n175 The bill aims to promote democracy and the rule of law in Belarus as well as to protect the sovereignty and independence of the country. [*142] In addition to allocating no less than $ 30 million in support of these objectives, it would impose various sanctions against the Lukashenka government and would require the United States to oppose the extension of any financial assistance by multinational lending institutions to Belarus. n176 It would also block Belarusian assets in the United States as well as deny entry into the United States of Belarusian officials. n177
While S.1645 has not attracted a co-sponsor in the Senate to date, n178 on June 27, 2002, Congressman Christopher H. Smith (R-N.J.) introduced H.R. 5056 - the "Belarus Democracy Act of 2002" as an alternative approach. n179 Like S.1645, the House bill is intended to further the "promotion of democracy, human rights, and rule of law in the Republic of Belarus and for the consolidation and strengthening of Belarus sovereignty and independence," and provides for the appropriation of $ 40 million over two years for Belarus-related programs. n180 The House bill differs from the Senate version principally because it does not include a section on blocking Belarusian assets in the United States, and provides for a Presidential waiver of certain provisions of the bill. n181 H.R. 5056's presidential waiver provision may prove critical to the final enactment of a law to promote Belarusian democracy, however, since it addresses a principal concern of the administration about Congress dictating to the Executive Branch the substance of foreign policy. A factor that might have increased the likelihood that some form of the bill will in fact be passed by Congress and signed into law by the President is that on May 31, 2002, the lower chamber of the Belarusian Parliament enacted a draft "Law on Freedom of Conscience and Religious Organizations."
The State Department's 2001 Report on Human Rights Practices implicitly questions the legitimacy of President Lukashenka's rule:
[*143]
On September 9, Lukashenka renewed his term of office as President through an election process that the Organization for Security and Cooperation in Europe (OSCE) described as neither free nor fair and as having failed to meet OSCE commitments for democratic elections. Parliamentary elections were held in October 2000, the first since the 1996 referendum. The President and his administration manipulated the election process to ensure an absolute minimum of anti-regime candidates and opposition members of the Parliament. The OSCE concluded that the elections were neither free nor fair. n182
At the present time, little desire appears to exist on the part of the Bush administration (as was the case during the administration of President William J. Clinton), to adopt a policy consistent with its observations. As a consequence declaratory policy has diverged from action policy, which remains at the center of U.S. Belarus policy. Rather than being based on factual observations, such policy seems to be conducted through the prism of United States-Russian relations. While the United States-Russian relationship is of higher priority to the United States, this need not mean that U.S. policy towards Belarus should consist solely of well-meaning statements.
Some seeds of change may have been planted however. In recent months, the U.S. government has become increasingly aware of Belarus' alleged role in providing arms to states hostile to U.S. interests. According to Fulbright Scholar Mark Lenzi, over the past year, Belarus has supplied over $ 500 million in lethal military equipment to Syria, Iran, and the Palestinian Authority. n183 According to Mr. Lenzi, Belarus has continued to provide training to Iraqi air defense officers on S-300 anti-aircraft missile systems, capable of threatening U.S. and U.K. aircraft patrolling the "no-fly" zone in Northern Iraq. n184 Belarus has denied these allegations. n185
[*144] In response to a question concerning whether U.S. Deputy Assistant Secretary Steven Pifer discussed the issue of weapons transfers by Belarus, U.S. Department of State Spokesmen Richard Boucher during a press conference stated:
Deputy Assistant Secretary Pifer put the question very clearly to the Belarusian Government. They should not be in the business of selling arms to countries with histories of supporting terrorism or fomenting regional conflict. n186 We use a variety of means to prevent such transfers. Sanctions are a possible tool, but they're only one possible tool to address them. n187
Consequently, unless Belarus terminates its alleged military training of Iraqi officers and supply of weapons to states that the United States believes serves as weapons suppliers to terrorist organizations, it is conceivable that the United States will adopt a more aggressive stance to President Lukashenka.
The United States may be entering a new and more aggressive phase with respect to its policy towards Belarus. For example, Secretary of State Powell apparently approached Russian Foreign Minister Igor Ivanov in order to seek Russia's influence with Belarus to permit the OSCE to continue its activities in Belarus. n188 Furthermore, in President Bush's 2002 Proclamation on Captive Nations Week, he identified Belarus as among those states where "people [*145] are denied the most basic rights to speak in freedom and their daily lives are haunted by the fear of the secret police." n189
It appears that Washington has recently recognized that President Lukashenka's continued rule in Belarus constitutes an anathema for human rights reasons, but also raises national security considerations. Consequently, a renewed willingness exists to examine both U.S. foreign policy tools and international mechanisms to further U.S. international goals such as bringing about political change in Iraq and combating terrorism.
B. Response of the International Financial Community
Significantly, on May 3, 2002, the Board of Directors of the European Bank for Reconstruction and Development (EBRD) adopted a new strategy for dealing with Belarus, making EBRD activities in the country dependant on political and economic reform. n190 It thus appears that the EBRD has for the moment decided to curtail its operations in Belarus. As EBRD Secretary General Antonio Maria Costa has noted, the EBRD Charter, unlike that of the International Monetary Fund or the World Bank, places significant emphasis on democratic reform in borrowing nations. n191
A notable discussion within such institutions appears to parallel those taking place within the foreign ministries of principal Western European countries, namely whether the isolation of Belarus advance their country's interests or is a policy of engagement preferable. It seems that advocates of the latter approach are prevailing. Consequently, small, relatively innocuous projects are underway in Belarus, such as the provision of $ 22.6 million in funds for renovations of schools and hospitals, financial assistance to combat tuberculosis and AIDS, and a program giving $ 50 million to support people living on land contaminated as a result of nuclear fallout from the 1986 Chernobyl disaster. n192 While the [*146] projects themselves are inoffensive, they nonetheless permit President Lukashenka to tell the Belarus population that he can ignore the entreaties of the West and still obtain foreign loans and technical assistance. Ironically, President Lukashenka, in his annual address to the legislature, criticized the World Bank by stating that "we do not need their assistance." n193
It remains unlikely that the international financial community will adopt the U.S. view about pursuing a pro-active policy against President Lukashenka. Nonetheless, the United States has a major say in the policies of the major international financial institutions mentioned above. Thus, such institutions must take into account U.S. preferences with respect to Belarus. As a result, uncontroversial lending aimed at improving the health and well being of the Belarusian population will likely continue, though the amounts involved are equally as likely to remain small.
C. Russia's Ambivalent Attitude towards Belarus and President Lukashenka
Although a member of OSCE, Russia has always had a special relationship with Belarus and President Lukashenka. Russia was the only OSCE-member state to recognize the legitimacy of the 1994 Referendum. This policy reflects the complex nature of the Belarus-Russian relationship. n194 On September 10, 2001, Russian President Vladimir Putin congratulated President Lukashenka on his "impressive victory" despite the widespread belief that Mr. Putin dislikes his Belarusian counterpart. n195 Similarly, Ukrainian President Leonid Kuchma sent his congratulations the next day. n196 [*147] While the Russian President has demonstrated a willingness to work with President Lukashenka, n197 this may be changing.
Clearly, Belarus holds both strategic and psychological importance to Russia and its political leadership. Belarus provides Russia with strategic depth in the unlikely event of an attack from the West; it gives Russia a "reliable" ally in the international community and most importantly sits atop the pipelines that permit Russia to export oil and natural gas to Russia's Western Europe markets. One of the reasons that Russia was willing to subsidize the Belarusian economy through cheap energy exports is that Belarus, n198 unlike the Ukraine, does not divert oil or natural gas from Russia's pipelines; n199 thus the subsidy can be viewed as a form of "protection money." n200 Belarus' maintenance of good relations with Russia is both an economic and political necessity. For example, fifty-one percent of Belarus' exports are to Russia (largely machinery, equipment, chemicals, metals, textiles and food products), while sixty-six percent of its imports (largely mineral imports, including energy and various forms of machinery and equipment) are from [*148] Russia. n201 Not only does Russia provide critical economic support, it also offers both political and psychological sustenance to its western neighbor.
On April 2, 1996, Belarus and Russia entered into a treaty on the formation of an association (soobshchestvo). n202 This treaty was not very substantive and largely represented a first step in the closer, undefined integration of the two countries to be formalized before the end of 1997. n203 It was followed by a second treaty signed on April 2, 1997, on the "union" of Belarus and Russia. n204 At the same time, Russia has been creating a firmer legal framework for closer relations with Belarus and other countries formerly constituting the Soviet Union. It enacted a law establishing a procedure for accepting members into the Russian Federation and the creation of new constituent entities. n205 The law is sufficiently flexible to permit special arrangements with a sovereign state joining the Russian Federation. n206
One should not overlook Russia's long-term strategic interests. With approximately 110 million of its 145 million people located in [*149] European Russia (west of the Urals), n207 the growing Moslem and Chinese populations to the south, and the onset of severe demographic problems, n208 it appears that Russia's future lies in closer integration with Western European countries, the United States, and a more formal relationship with NATO. Additionally, the onslaught of HIV/AIDS cases in Russia may make Russia more dependent on such relations. The rate of growth in HIV/AIDS cases in Russia has far-reaching implications for its economy, its ability to recruit adequate personnel for its armed forces, and even its long-term viability as a sovereign country. n209 Cooperation between the United States and Russia in the post-September 11th environment may be the first indicator of a long-term Russian policy of engagement with western nations. n210
Russia's willingness to cooperate with the West has coincided with cooling relations between Russia and Belarus. On December 5, 2001, Belarusian Prime Minister Genadz Navitski acknowledged to the Belarusian State Council that Russia is unwilling to enter into as close a relationship with Belarus as envisioned by the 1999 Union State Treaty. n211 According to Prime Minister Navitski, Russian Prime Minister Mikhail Kasyanov indicated that Belarus must first bring its legislation into compliance with that of Russia's in various areas. n212 Conceivably, Mr. Navitski was offering a technical legal explanation for what was apparently a political outcome decided upon by the Russian leadership. n213 Nonetheless, despite [*150] the posturing, Russia and Belarus eventually seemed to have reached an accommodation with respect to Russian exports of natural gas to Belarus for 2003. n214
Thus, one cannot rule out the possibility that Mr. Putin may reap significant benefits from President Lukashenka's removal from power. n215 It could represent another tangible way of cementing ties with the United States and Western Europe. This is particularly true if more evidence comes to light tying President Lukashenka to the death squads in Belarus. Such a development may give rise to legal action against him, which neither the international community nor President Putin can ignore. n216
In fact, on August 14, 2002, President Putin issued a challenge to President Lukashenka by proposing that Belarus and Russia hold a [*151] referendum in March 2003 on the issue of whether Belarus should become fully incorporated into Russia as one or more Russian Federation subdivisions. n217 President Lukashenka reacted to this proposal with hostility. n218 He indicated that he would proceed with integration only on the basis of the Union Treaty he had signed with then-Russian President Boris Yeltsin. n219 President Lukashenka's current reaction may reflect in part Belarusian public opinion, now that he no longer sees a Belarusian-Russian Union as a means of prolonging his hold on power. n220 According to a public opinion poll, only a small percentage of the Belarusian population supports integration of Belarus as part of the Russian Federation. n221 Significantly, President Putin made this proposal at a time when the Belarusian government had intensified its campaign against the country's independent media, n222 Mr. Goncharik and his former supporters, and other members of the opposition. n223 This suggests that Mr. Lukashenka's hold on power is more tenuous than is often believed, and that the opposition still poses a threat to his continued rule.
[*152] While President Putin appears to be trying to distance himself from President Lukashenka's desire for closer ties between their two countries, he still seeks to avoid a complete break with President Lukashenka personally. Even so, his actions may have the effect of undermining President Lukashenka both with Belarusian nationals who favor continued independence for their countries as well as those who want a full union with Russia. In so acting, Mr. Putin may be motivated by President Lukashenka's failure to cooperate with the OSCE and a realization that Russia's relationship with Belarus may hinder Russia's goal of greater cooperation with NATO and the EU, as well as its entry into the World Trade Organization. n224 Whether President Putin intends on making Russian policy less supportive of President Lukashenka and the extent of any such policy shift remain unclear.
D. Additional Post-Election Observations
Despite his post-reelection calls for national reconciliation, President Lukashenka has not altered his behavior towards his domestic adversaries. For example, former Belarusian Premier Mikhail Chigir has again been brought up on charges, this time for official negligence dating back to his activities in 1994. n225 In recent months, President Lukashenka has accused more than a dozen business leaders of sabotaging the economy, n226 harassed opposition [*153] forces, n227 and arrested members of the independent media for holding demonstrations, such as in Grodno, where the police arrested fourteen journalists who staged unauthorized demonstrations following the closure of the independent weekly Pahonya. n228 He has thus shown himself unwilling to govern in a manner consistent with Belarus' OSCE obligations in the area of human rights and has permitted Belarusian officials and judges to use the law to punish political enemies.
Furthermore, President Lukashenka has refused to accredit German diplomat Eberhard Heyken as the new head of the OSCE AMG in Minsk after forcing the interim head of the AMG, Mr. Michel Rivolier and Mr. Andrew Carpenter, the AMG's Acting Head, to leave the country. n229 According to the Belarusian Foreign Ministry, the OSCE appointment of Mr. Heyken was improper under relevant OSCE documents, which provide that the OSCE may only appoint such an envoy "in the event of a crisis or conflict." The Belarusian Foreign Ministry maintains that "there is obviously no such situation in Belarus." n230
Western political leaders have shown increased willingness to criticize President Lukashenka more directly. For example, Peter Schieder, President of the Parliamentary Assembly of the Council of Europe (PACE), noted during his inaugural address that:
Belarus remains a problem ... the attitude of the presidential regime has not changed and remains totally unacceptable in [*154] terms of democratic and human rights standards. One the other hand, isolation does little to change the status quo. The Assembly will have to pursue its delicate diplomatic balancing act between support for progressive forces in Belarus and the need to avoid condoning the dictatorial attitude of the present regime." n231
In fact, the wives of the men who "disappeared" have appealed to PACE to organized an independent probe of the disappearance of their husbands. n232 This appeal may have led PACE's proposal to "assist" Belarusian officials in the investigation of the disappearance of opposition figures in Belarus. n233 Significantly, on November 19, 2002, fourteen of fifteen European Union members (Portugal being the lone exception, which criticized taking the action as inappropriate prior to the OSCE Ministers Meeting on December 6-7, 2001) imposed a travel ban on Mr. Lukashenka and seven of his ministers. The EU members justified their action by the deteriorating human rights situation in the country and not the illegitimacy of his rule per se. n234 On November 26, 2002, the U.S. imposed a similar travel ban, apparently for the same grounds. n235
It remains unclear, however, whether Western European policy will follow this largely symbolic step with concrete actions within the relevant foreign policy establishments.
V. Conclusion and Implications
In the view of one political observer, President Lukashenka's lack of faith in democracy may have an unforeseen result. According to Mr. Aleksandr Klasovsky:
[*155]
Lukashenka has become hostage to his victory. Now he will be responsible for everything. He will have to take drastic and unpopular economic measures. He will find it more difficult to blame enemies for his failures. Willy-nilly, he will have to establish a meaningful dialogue with the international community. Finally, Russia will hold him in leash, forcing concessions from him in return for its support in the trying times. n236
It remains to be seen whether Russia will be willing to pay the price of keeping President Lukashenka afloat in the new post-September 11th world. n237 Perhaps, in hindsight, President Lukashenka should have had greater faith in the Belarusian people and been willing to live with a fifty-two to forty-eight percent victory. Given the age and large rural component of the Belarusian electorate and its awareness of what "economic reform" has wrought on the majority of the Russian and Ukrainian populations, he probably would have prevailed in a free and open election.
As long as President Lukashenka faces an embattled and disorganized opposition at home and passive support of Russia, Ukraine, and other countries, the leverage the West has over the future direction of Belarus is limited unless the United States can persuade itself, its principal allies, and Russia that President Lukashenka is not merely a threat to Belarusian nationals who oppose him but to global security as well.
With respect to the relevance of international law, if one were to apply Professor Peterson's analysis to the issue whether President Lukashenka's electoral victory should be "recognized," the facts appear to support the conclusion that it should not. A government is entitled to recognition if:
(1) it enjoys active or passive popular support and governs in accordance with the rule of law domestically; and
[*156] (2) does not threaten the interests of the international community. n238
Under this two-part test, the continued recognition of the Lukashenka government may be unjustified. First, the OSCE Electoral Observers concluded a fair and free election was not held in accordance with Belarusian law, which under its constitution incorporates the norms of international law, including those of the Copenhagen and Berlin Declarations. n239 In fact, it is indeed possible that President Lukashenka's supporters eliminated the strongest potential opposition candidates for president. Second, recent disclosures seem to indicate that Belarus has been providing military assistance to Iraq and weapons produced by it are finding their way to terrorist organizations. n240
The impact of non-recognition could have a more far-reaching impact with respect to Belarusian officials present in the United States who in the past enjoyed privileges of immunity from arrest, detention, criminal and civil liability, with the exception of those engaged in U.N.-related activities. n241 It would also send a message to the world community, much as did Great Britain's decision to extradite former Chilean President Augusto Pinochet to Spain. n242 [*157] But whereas Mr. Pinochet no longer exercised power in Chile, President Lukashenka continues to do so in Belarus. Consequently, if the United States refused to accord diplomatic privileges to Belarusian diplomats, it would present a significant reciprocal risk to its own personnel present in Belarus.
Of course, if OSCE and other states took action in accordance with this interpretation of the state of international law, major political and economic consequences would likely result, possibly including the need to withdraw diplomatic and other personnel from Belarus. Significant institutional opposition of pursuing such a policy would likely arise. Policymakers continue to engage in discussions over whether engagement or isolation is a better approach to take towards Belarus. To date, engagement to the extent that it has been pursued has not yielded noticeable results. It is this author's belief that further isolation of the Belarusian government combined with increased support of democratic forces should be more aggressively pursued. In order to reduce support for President Lukashenka amongst members of his own government, nations should revoke diplomatic recognition and therefore diplomatic immunity to such officials.
The United States has both legal and moral justification to take the lead against Belarus. The U.S. Congress should consider adopting a Belarus Democracy Act in some form in order to increase the political and economic pressure on President Lukashenka for political, strategic, and humanitarian reasons. Perhaps adoption of the Act in some form would place into practice the principal articulated by Georg Scharzenberger that unless otherwise limited by customary international law or treaty commitments, international law does not preclude states from recognizing only popularly sanctioned governments. n243 While the international community as a whole seems unwilling to move in this direction at this time, it is beholden on the United States to take the lead - that is to ensure that OSCE legal norms and policy set forth in the Copenhagen Document n244 and the OSCE PA's Berlin Declaration, n245 respectively, are not simply empty words. This large discrepancy between declaratory policy and concrete actions should cease.
FOOTNOTES:
n1. Aleksandr Veshnyakov, Belapan, available at http://elections.belapan.com.eng/ (Sept. 10, 2001).
n2. Pavel Sheremet, Belapan, available at http://elections.belapan.com.eng/ (Aug. 30, 2001).
n3. Under Belarusian law, both Belarusian and Russian are official languages of the country. For purposes of consistency, the author will use English-language transliterations from the Russian language with the exception of President Lukashenka's name.
n4. On September 18, 2001, the Belarusian Ministry of Affairs issued a statement noting, inter alia, that "the people of Belarus made their choice, showing wisdom and maturity and European states and the United States must accept it." International League of Human Rights, Regime Lashes Out at U.S. Criticism of Election, 4 Belr. Update No. 38 (Victor Cole ed., 2001), at http://www.ilhr.org (last visited Nov. 3, 2002). The International League for Human Rights is one of the few Western organizations that monitor developments in Belarus. Whereas the Department of State has the principal responsibility for carrying out U.S. foreign policy with respect to Belarus, the U.S. Helsinki Commission, an independent agency of the U.S. government, monitors and encourages compliance with the Helsinki Final Act and other commitments of the fifty-five OSCE member states, including Belarus. The U.S. Helsinki Commission maintains a web site that often contains information on developments in Belarus, at http://www.csce.gov.
n5. Id.
n6. At his televised victory celebration, while welcoming the idea of the restoration of normal relations with the European Union (EU), the United States, the International Monetary Fund, the World Bank, and the European Bank for Reconstruction and Development, President Lukashenka emphasized that such relations can only be made on the basis of "mutually beneficial principles and national interests." Belarusian President Claims Victory, Vows No Change, Foreign Broadcast Information Service, Central Eurasia, Sept. 10, 2001 (translation of Minsk Radio 1 in Belarusian 1100 GMT). In response to a journalist's question about whether opposition figures and journalists "disappeared," President Lukashenka, "to you this was big politics, the great harvest. This harvest of yours failed. I can assure you, with all certainty, which you will forget in a week or two. To you this will be a spent card. This is not your pain. This is the pain of the relatives of the missing people whom we haven't found, unfortunately." Id.
n7. The Organization for Security and Cooperation in Europe (OSCE) consists of fifty-five participating states. See Welcome to the US Website, at http://www.usosce.rpo.at/ (last visited Oct. 29, 2002) (introducing the website for the United States mission to the OSCE). The OSCE adopts decisions on a consensual basis. Id. Given its diverse membership, its decisions reflect a "least common denominator" approach. The language of OSCE documents tends to be couched in cautious, diplomatic terminology and understatements.
n8. David Remnick, Lenin's Tomb (1994).
n9. President Lukashenka was elected as president of Belarus after defeating the former Prime Minister Vyacheslav Kebich - a campaign in which President Lukashenka successfully ran as the "anti-corruption candidate." Kathleen Knox, Belarus: A Look at Lukashenka's Record, at http://www.rferl.org/ (last visited Nov. 4, 2002); see also Office for Democratic Institutions and Human Rights, Republic of Belarus Presidential Election: OSCE/ODIHR Limited Election Observation Mission Final Report, at 5-6, available at http://www.osce.org/ (Sept. 9, 2001) [hereinafter OSCE Final Report]. For a discussion of Mr. Lukashenka's election as Belarusian President in 1994 and the 1996 Referendum, see Margaria M. Balmaceda et al., Independent Belarus: Domestic Determinants, Regional Dynamics and Implications for the West 4-23 (2002) (hereinafter Independent Belarus).
n10. Human Rights Watch, Republic of Belarus: Crushing Civil Society, available at http://www.hrw.org/ (Aug. 1, 1997).
n11. Mikhail Pastukhov, Human Rights in Belarus (1997), at 4-5. On November 4, 1996, the Belarusian Constitutional Court ruled that the 1994 Constitution could not be amended by a referendum. Nonetheless, on March 4, 1997, a reconstituted Constitutional Court, then consisting of a majority of judges appointed by Lukashenka, ruled that the referendum amending the 1994 Constitution was legally binding. See Human Rights Watch, supra note 10.
n12. Paul Goble, Belarus: Analysis from Washington - the Belarusian Divide, at http://www.rferl.org (July 21, 1999).
n13. Belr. Const. art. 84, 7, 10 (1996).
n14. See id. 16.
n15. Belr Const. art. 140 (1996). The 1994 Constitution provided for a unicameral legislature, the Supreme Soviet. See Belr. Const. art. 79 (1994).
n16. This is significant since no less than two-thirds of each chamber of the National Assembly must approve any amendments to the 1996 Constitution. See Belr. Const. art. 140 (1996). It may also be amended by referendum See id.
n17. Human Rights Watch, World Report 1999: Republic of Belarus Human Rights Developments, available at http://www.hrw.org/; Human Rights Watch, World Report 2000: Republic of Belarus Human Rights Developments, available at http://www.hrw.org/; Human Rights Watch, World Report 2001: Republic of Belarus Human Rights Developments, available at http://www.hrw.org/ [hereinafter World Reports]; see also Human Rights Watch, supra note 10.
n18. Human Rights Watch, supra note 10.
n19. See id.; World Reports, supra note 17.
n20. Belr. Const. art. 97 (1994).
n21. Radio Free Europe/Radio Liberty, Belarusian Opposition Concludes Presidential Ballot, Newsline (May 17, 1999), at http://www.rferl.org/.
n22. The OSCE's Parliamentary Assembly maintains official relations with the Belarusian 13th Supreme Soviet (not the National Assembly formed pursuant to the provisions of Article 90 of the 1996 Belarusian Constitution). According to Dr. Hans-George Wieck, the head of the OSCE Advisory and Monitoring Group in Belarus from December 1997 until December 2001, the OSCE adopted a policy of dialogue with Belarus as a means to get it to honor its commitments under the Copenhagen and Paris documents. Hans-George Wieck, The Role of International Organizations in Belarus, in Independent Belarus, supra note 9, at 376.
n23. See id.
n24. Embassy of the United States of America, Minsk, Belarus, Release of Opposition Leader Mikhail Chigir, at http://www.usis.minsk.by/ (Dec. 2, 1999) (citing statement of James P. Rubin, Spokesman of the United States Department of State); Embassy of the United States of America, Minsk, Belarus, Arrest of Central Election Commission, at http://www.usembassy.minsk.by/ (Feb. 25, 1999) (citing statement of James B. Foley, Deputy Spokesman, United States Department of State).
n25. See, e.g., Radio Free Europe/Radio Liberty, No Winner in Belarus' Shadow Presidential Polls, Newsline (May 20, 1999), at http://www.rferl.org/.
n26. Id.
n27. Belarusian Opposition Concludes Presidential Ballot, supra note 21.
n28. Lisa McAdams, Belarus: Opposition Leader Pleased with Presidential Poll, at http://www.rferl.org/ (May 10, 1999).
n29. No Winner in Belarus' Shadow Presidential Polls, supra note 25.
n30. Id.
n31. Id.
n32. Belarusian Opposition Concludes Presidential Ballot, supra note 21.
n33. Belr. Const. art. 105 (1994).
n34. Embassy of the United States of America, Minsk, Belarus, Presidential Term of Office, available at http://www.usis.minsk.by/ (July 20, 1999) (citing statement of James P. Rubin, Spokesman, United States Department of State). For an informative discussion of the 1999 'Presidential Election' and the problems encountered by the Belarusian opposition during the process, see David R. Marples & Uladzimir Padhol, The Opposition in Belarus: History, Potential and Perspectives, in Independent Belarus, supra note 9, at 55-76.
n35. Radio Free Europe/Radio Liberty, Belarusian Opposition Leader Flees to Lithuania, Newsline (July 26, 1999), at http://www.rferl.org/.
n36. Radio Free Europe/Radio Liberty, Belarus to Have Government in Exile?, Newsline (Aug. 31, 1999), at http://www.rferl.org/.
n37. In 1997, the OSCE Permanent Council created the Advisory and Monitoring Group (AMG) to help the Belarusian authorities promote and support the establishment of democratic institutions as well as to facilitate Belarus' compliance with its OSCE commitments - in particular those contained in the 1990 Copenhagen Declaration concerning the holding of elections consistent with international human rights standards and the rule of law. See OSCE, OSCE Chair to Hold Press Conference on Belarus, at http://www.osce.org/ (June 5, 2002); see also Conference for Security and Co-operation in Europe, Document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE (1990), available at http://www.osce.org/. In 1992, the Conference on Security and Co-operation in Europe (CSCE) was formally reconstituted into a more formal body, the Organization for Security and Co-operation in Europe (OSCE) with more formal structures. Organization for Cooperation and Security in Europe, OSCE Handbook, at 1-17, (1999), available at http://www.osce.org/ (last visited Nov. 10, 2002) [hereinafter OSCE Handbook]; Miriam Shapiro, Current Development: Developing the CSCE into the OSCE: Legal Aspects of a Political Transformation, 89 A.J.I.L. 631 (1995).
n38. See Lisa McAdams, supra note 28.
n39. Electoral Code of the Republic of Belarus, available at http://www.president.gov.by/ (last visited Nov. 8, 2002) [hereinafter Electoral Code].
n40. As discussed below, the OSCE's Office for Democratic Institutions and Human Rights ("ODIHR") concluded that Belarusian electoral standards did not meet OSCE Standards. See generally Embassy of the United States of America, Minsk, Belarus, Testimony, at http://www.usis.minsk.by/ (March 9, 2000) (citing Harold Hongju Koh, Assistant Secretary of the U.S. Department of State's Bureau of Democracy, Human Rights and Labor. Mr. Koh testified before the Commission on Security and Cooperation in Europe. His testimony detailed the breakdown of the rule of law in Belarus and the harassment of the independent media).
n41. See Electoral Code, supra note 39.
n42. See id. ch. 8.
n43. See On the Central Commission of the Republic of Belarus on Holding Elections and Republican Referenda, available at http://mail.ncpi.gov.by:8081/ (Apr. 30, 1998); Belr. Const. art 91 (1996).
n44. See Radio Free Europe/Radio Liberty, Trade Union Boss Becomes Lone Democratic Challenger to Lukashenka, 3 Pol., Belr. Ukr. Rep. No. 29 (July 31, 2001), at http://www.rferl.org/.
n45. On September 24, 2000, after years of war and a sharp decline in their standard of living, Yugoslav voters appeared to have elected opposition candidate Vojislav Kostunica as their new president. See Radio Free Europe/Radio Liberty, Yugoslavia's Democratic Revolution, at new president. See Radio Free Europe/Radio Liberty, Yugoslavia's Democratic Revolution, at http://www.rferl.org/, (last updated Nov. 14, 2000). On October 3, 2000, the Yugoslav Supreme Court issued a decision to nullify the election. See id. On October 5, 2000, hundreds of thousands of people throughout the country demonstrated in protest and called for a national strike. See id. Opposition supporters seized the federal parliament building and state television station. See id. To the surprise of many observers, the state security forces were largely unwilling to act to restore Mr. Milosevic to power, his legitimacy having been severely undermined by the election result and subsequent protests. See id. Subsequently, the Yugoslav Supreme Court reversed its earlier decision on the election. See id. Mr. Milosevic then conceded defeat at the polls. See id.
n46. See Electoral Code art. 4, available at http://www.president.gov.by/ (Feb. 11, 2000); Belr. Const. art. 64 (1996).
n47. Electrical Code art. 19.
n48. See id. art. 17.
n49. See id. art. 52.
n50. See id. art. 9.
n51. See id. art. 68.
n52. See id. art. 61.
n53. See id. art. 68.
n54. See id. art. 13.
n55. See id.
n56. See id. art. 53.
n57. The Russian word "vozmozhnost" is not defined in the Electoral Code. Thus, it is not clear whether mere inconvenience, as opposed to impossibility, is sufficient to vote before election day.
n58. See Electoral Code art. 53.
n59. See id.
n60. See id. art. 45 (providing that the state will finance a presidential candidate's purchase of campaign posters in the amount of 2,300 minimum monthly wages) (the Belarusian minimum monthly wage was 7,500 Belarusian Rubles or approximately US $ 4.50). See Postanovlenie Soveta Ministrov Respubliki Belarus No. 894, Minimal'noi Zarabotnoi Plate i Tarifnoi Stavke Pervogo Rapzriada Dlia Oplaty Truda Rabotnikov Organizazii, Finansiruemyx iz Butzeta i pIlzuiuschixsia Gosudarstvennumi Dotaziami (2001) [Council of Ministers of Belarus, Decree No. 894, on the minimum wage and the wage of employees of the organizations financed from the budget and receiving subsidies from the Government]. Article 46 of the Electoral Code provides that an eligible candidate is to be given newspaper space and television airtime to promote his programs. Similarly, pursuant to Article 48, eligible candidates for president are allocated equal sums of money out of the State Budget for campaign purposes according to rules established by the Election Commission.
n61. See Electoral Code art. 74, available at http://www.president.gov.by/ (Feb. 11, 2000).
n62. OSCE Final Report, supra note 9, at 10. In reality, President Lukashenka had little need for conducting a true campaign so long as he could show that more than 50% of the electorate cast their ballots. While it may have escaped the notice of certain observers, the posters encouraging citizens to vote stated in large letters "Vote for President on September 9th." While such text might be understood as merely encouraging people to vote, the lack of articles in the Russian and Belarusian languages could lead one to conclude that the poster was encouraging people to vote for "the President", President Lukashenka. This point was made to me by one of the many people I met with in Minsk after the election, who told me that she did not vote at all since the outcome had been predetermined. She was correct from two perspectives: first, the deck was stacked against Mr. Goncharik (whom she considered the lesser of three evils) and, second, ironically, her complacency (and that of like-minded people) proved to be a self-fulfilling prophecy by contributing to President Lukashenka's electoral victory.
n63. See Electoral Code art. 55, available at http://www.president.gov.by. (Feb. 11, 2002).
n64. See id.
n65. See id. art. 72.
n66. See id. art. 80.
n67. OSCE Final Report, supra note 9, at 8-9. President Lukashenka ran as an independent- unaffiliated with any party. It therefore is probably not a coincidence that only 67 of 2,179 members of the Territorial Election Commissions and 172 of 78,407 members of the Precinct Election Commissions were affiliated with a political party. Id. at 10. According to an estimate by the correspondent for The Washington Post, President Lukashenka designated all but 230 of the 80,000 local, provincial, and central election officials. See Michael Wines, Belarus Leader Claims Big Election Victory, But Many Doubt It, N.Y. Times, Sept. 10, 2001, available at 2001 WL 27396090. Thus, rather than President Lukashenka's selection of election officials lacking party affiliation indicating neutrality, it indicates loyalty to President Lukashenka.
n68. It should not be overlooked that many Belarusians have "voted with their feet" - that is, rather than remain in the country; they have formally emigrated or simply moved to Russia or other countries. See Radio Racyja, 2/3 Belarusians Willing to Immigrate, at http://www.newsbelarus.com (Oct. 9, 2002); see also, Charter 97 Belarus News Update, Half of Belrusians Ready to Immigrate, at http://felist.com/ (May 28, 2002). Consequently, many potential supporters of opposition candidates had no ability or desire to vote. Some have criticized Lukashenka opponents as more focused on obtaining Western research grants than on seeking to change the political situation in the country. See, e.g., Jeffrey Donovan Belarus: Beleaguered Opposition Seeks New Vote, at http://www.rferl.org/ (Sept. 13, 2001).
n69. These candidates included Natalya Masherova, the daughter of the former Head of the Belarusian Communist Party, the Head of the Federation of Trade Unions of Belarus, Vladimir Goncharik, former Prime Minister Mikhail Chigir, former head of the Grodno Oblast' Semyon Domash, former Minister of Defense Pavel Kozlovsky, Belarusian Ambassador to Latvia Mikhail Marinich, Leader of the Conservative Christian Party Zenon Poznyak, Leonid Sinitsyn (President Lukashenka's Chief of Staff until 1996), Belarusian Communist Party Head Sergei Kalyakin and Liberal Democratic Party Head Sergei Gaidukevich. See BelaPAN, 2001 Elections in Belarus: Contenders, at http://elections.belapan.com (last visited Nov. 10, 2002).
n70. See Vladimir Glod, Circle of Presidential Bidders Narrows to Four, at http://elections.belapan.com/ (last visited Nov. 10, 2002)
n71. Radio Free Europe/Radio Liberty, Belarus: Opposition Leaders Unite Against Lukashenka, at http://www.rferl.org/ (May 3, 2001); see also BelaPAN, supra note 69.
n72. See Jeremy Bransten, Belarus: Uladzimir Hancharyk, President Lukashenka's Main Challenger, at http://rferl.org/ (Sept. 6, 2001).
n73. See Jeremy Bransten, Belarus: Lukashenka Anxious as Election Nears, at http://www.reerl.org/ (May 25, 2001).
n74. See id.
n75. ORT is Russian Public Television.
n76. See Radio Free Europe/Radio Liberty, Belarus: Lukashenka Threatens 'Unfriendly' Russian Media, at http://rferl.org/ (June 21, 2001).
n77. See Radio Free Europe/Radio Liberty, Belarus: New Charges of Government Involvement in Murders of Opposition Figures, at http://www.rferl.org/ (July 18, 2001). In Belarus, the overwhelming share of the local media coverage was favorable towards Lukashenka. See NOVAK, Most Television Election Coverage Devoted to Lukashenka, at http://election.belepan.com/ (last visited Sept. 17, 2002). Nonetheless, many citizens receive their news from Russian television. See OSCE Final Report, supra note 9, at 22. In the period July 23 to August 23, 2001, much of the coverage of President Lukashenka was negative. This apparently changed just before the election. Of all the Russian television stations, only NTV broadcast the videotape describing the state-sponsored death squads, which allegedly murdered Messrs. Gonchar and Zakharenko. See Sharon LaFraniere, Belarusian President Answers Accusers: Police Hold Search for Bodies of Foes, Wash. Post. Aug. 29, 2001, at A15.
n78. See BelaPAN, Media Outlets Receive Photograph Featuring Authors of Shocking Report on State-Ordered Killings, at http://www.belapan.com/ (June 13, 2001); BelaPAN, Anonymous E-mail Blames High Profile Disappearances on Authorities' Death Squad, at http://www.belapan.com/eng/scandal.htm (June 11, 2001); BelaPAN, Interior Minister [Vladimir Naumov] Dismisses All Allegations Leveled Against Him in E-mailed Report on State-Ordered Killings, Spokesman say, at http://www.belapan.com/ (June 11, 2001); BelaPAN, [Dmitrii] Zavadsky's Long-Time Friend Says That New Revelations About Much-Talked-of Belarusian Disappearances are Trustworthy, at http://www.belapan.com (June 12, 2001); BelaPAN, Independent Investigator Suspects a Russian Hand in Persistent Leaks on Belarus' High-Profile Disappearances, at http://www.belapan.com/ (June 13, 2001).
n79. See Sharon LaFraniere, supra note 77, at A15.
n80. See Sharon LaFraniere, In Video, Officials Tie Death of Foes to Belarus Leader, Wash. Post Aug. 28, 2001, at A9; Sharon LaFraniere, supra note 77.
n81. See Kathleen Knox, Belarus: Ahead of Vote, Independent Media Come Under Pressure, at http://rferl.org/ (Aug. 27, 2001).
n82. See Jeremy Bransten, Belarus: Authorities Deny Entry to OSCE Election Observer Mission, at http://rferl.org/ (July 31, 2001); OSCE Final Report, supra note 9,at 4, 7.
n83. See Askold Krushelnycky, Belarus: President Feuding with OSCE, at http://www.rferl.org/ (last visited Nov. 19, 2002).
n84. See Radio Free Europe/Radio Liberty, Belarus: Minsk Threatens to Expel OSCE Mission Chief, at http://www.rferl.org/ (May 17, 2001).
n85. See Radio Free Europe/Radio Liberty, Belarus: Hancharyk Praises High Voter Turnout: OSCE Head Called a Spy, at http://www.rferl.org/ (Sept. 9, 2001).
n86. See Belarusian Association of Journalists, The Daily Update on Media Situation in Belarus Ahead of Presidential Elections: Government Newspaper Campaigns to Re-Elect Lukashenka, at http://www.baj.unibel.by/ (Sept. 5, 2001).
n87. See Peter Baker & Susan B. Glasser, President Claims Victory in Belarus: Protesters Say Election Was Rigged, Wash. Post, Sept. 10, 2001, at A13, A14; Michael Wines, Belarus Leader Wins Re-election; Many Voters Question Tally, Monitors Say They Can't Prove Fraud, San Diego Union-Trib., Sept. 10, 2001, at A8; see also Amnesty International, Belarus: Right to Speak out Violated Ahead of Presidential Elections, at http://web.amnesty.org/ (Sept. 4, 2001).
n88. See Michael Wines, Observers Say Re-election of Belarus Chief was "Flawed," San Diego Union Trib., Sept. 11, 2001, at A10. There is only one Internet service provider in Belarus, Beltelecom, which is a monopoly. OSCE Final Report, supra note 9, at 23; Radio Free Europe/Radio Liberty, Belarus: OSCE Says Vote Unfair; Putin Congratulates Lukashenka, at http://www.rferl.org/ (Sept. 9, 2001).
n89. Radio Free Europe/Radio Liberty, Lukashenka Inspects Military Exercises, Decries U.S. Information Pressure, Newsline (Aug. 31, 2001), at http://www.rferl.org/.
n90. BelaPAN, 2001 Elections in Belarus: Quote of the Day, at http://elections.belapan.com (last visited Nov. 10, 2002). On July 31, 2001, President Lukashenka stated "I will not sit in a bunker like Milosevic. I am afraid of no one. I stole nothing from my people. I will defend myself. Who will defend me? The army cannot be drawn into internal affairs. They will not interfere. The Internal Troops, of course. The Internal Troops include a special brigade commanded by Pavlyuchenko. You know that name." Id.
n91. See Trade Union Boss Becomes Lone Democratic Challenger to Lukashenka, supra note 44.
n92. OSCE Final Report, supra note 9, at 13.
n93. Belarus News, Elections Monitoring by BDG, at http://www.belarusnews.de/ (Sept. 10, 2001) (statement of Vladimir Goncharik to the citizens of Belarus).
n94. OSCE Final Report, supra note 9, at 26.
n95. OSCE Final Report, supra note 9, at 24, 26.
n96. ACEEEO, The Voting Results in Certain Districts Conveyed to the ACEEEO on the Night of September 9-September 10, 2001 (2001) (tallying of polling results observed by official ACEEEO election observers) (on file with author). Due to rounding, the total does not yield 100%.
n97. Differences between all of the ACEEEO's figures and those of the OSCE Mission and Central Election Commission are probably the result of sampling taken from various sites.
n98. OSCE Final Report, supra note 9, at 24.
n99. Id. at 24.
n100. See Wines, supra note 87.
n101. In an interview, when asked whether she would be upset if Alesandr Lukashenka loses the election, Ms. Yermoshina stated that "it will be a personal tragedy for me as an average voter." BelaPAN, Lidiya Yermoshina: Aleksandr Lukashenko's Defeat in the Election Will be My Personal Tragedy, at http://elections.belapan.com/ (last visited Nov. 7, 2002).
n102. OSCE Final Report, supra note 9, at 24.
n103. Id. at 24; see also, BelaPAN, Goncharik Contests Election Result in Supreme Court, at http://elections.belapan.com/ (Sept. 24, 2001).
n104. According to the Final Report, the OSCE Mission received 400 complaints and about sixty responses from the election commissions. OSCE Final Report, supra note 9, at 15. In most cases, no violation was found or it was deemed that insufficient information had been provided by the complaining party. See id.
n105. The mobile voting was reminiscent of practices during Soviet times. For example, a local election commission upon discovering that an elderly citizen had not cast a ballot would send several of its members to the persons house to ensure that such person would vote. See OSCE Final Report, supra note 9, at 22.
n106. See OSCE Final Report, supra note 9 at 4.
n107. Id. at 11-12.
n108. See Leonid Mikheichikov, Lukashenka Loses Lead in Minsk to Goncharik, at http://elections.belapan.com/ (last visited Sept. 28, 2002).
n109. Central Eurasia Report (Minsk Radio 1 Radio Broadcast, Sept. 10, 2001, translated by Foreign Broadcast Information Service).
n110. BelaPAN, Poll of Experts Reveals Skepticism About Fairness of Belarusian Election, at http://elections.belapan.com/ (Oct. 10, 2001).
n111. Michael Kinsley, The Conspiracy of Trivia: The Rules for Raising Money Just Deodorize a lot of Smelly Behavior, Time, Mar. 17, 1997, at 25.
n112. The OSCE Final Report noted that in general the Electoral Code was respected. OSCE Final Report, supra note 9, at 23. It observed, however, the extraordinary speed in which the tallying took place. See OSCE Final Report, supra note 9, at 23-24. Independent Observation headquarters claimed that up to 25% of votes for Mr. Goncharik were credited to Lukashenka. See BelaPAN, Lukashenko Resorted to Massive Election Fraud to Create Illusion of Overwhelming Support, Independent Observation Coordinator says, at http://elections.belapan.com/ (Sept. 21, 2001); OSCE Final Report, supra note 9, 24.
n113. See BelaPAN, BelaPAN Poll Indicates That 44 Percent of Minsk Residents Voted for Lukashenko, 30 Percent for Goncharik, at http://elections.belapan.com/ (Sept. 14, 2001).
n114. Electoral Code, supra note 39, arts. 79-80.
n115. See Leonid Mikheichikov, Post-Election Poll in Minsk, at http://elections.belapan.com (last visited Sept. 28, 2002).
n116. See note 104 and accompanying text.
n117. Ass'n of Central and Eastern European Election Officials, Final Report of the Mission of the Association of Central and Eastern European Election Officials for the Observation of the Presidential Elections in the Republic of Belarus, 17-18, at http://www.aceeeo.org/ (last visited Nov. 10, 2002).
n118. See id. Some experts do not share this view. See, e.g., 2001 Elections in Belarus: Lukashenka Resorted to Massive Election Fraud to Create Illusion of Overwhelming Support, Independent Observation Coordinator says, at http://elections.belapan.com/ (Sept. 21, 2001). According to Mr. Ales Belyatsky, a coordinator of the Nezavismoye Hablyudenie (Independent Observation Campaign), massive fraud was committed in rural areas lacking independent observers. See id. In his view, the situation differed in towns where election officials were cautious in falsifying the results. See id.
n119. OSCE Final Report, supra note 9 at 1-2.
n120. It was, however, profoundly regrettable that a few thousand of these observers had their accreditation revoked.
n121. OSCE Final Report, supra note 9 at 2.
n122. Conference for Security and Co-operation in Europe, supra note 37, art. 7-8. The Document deals most directly with OSCE's standards for elections conducted in its member states, which have applied to Belarus since 1992. Belarus first participated in the OSCE as an independent country on January 30, 1992; it signed the Helsinki Final Act on February 26, 1992, thus making it officially a participating party. OSCE Handbook, supra note 37, Annex 1, at 169. The Document provides, in relevant part, that:
(7) To ensure that the will of the people serves as the basis of the authority of government, the participating States will;
(7.1) hold free elections at reasonable intervals, as established by law;
(7.2) permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;
(7.3) guarantee universal and equal suffrage to adult citizens;
(7.4) ensure that votes are cast by secret ballot or by equivalent free voting procedures, and that they are counted and reported honestly with the official results made public;
(7.5) respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations without discrimination;
(7.6) respect the rights of individuals and groups to establish in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;
(7.7) ensure that law and public policy work to permit political campaigning be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them, from casting their vote free of fear of retribution;
(7.8) provide that no legal or administrative obstacles stand in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process;
(7.9) ensure that candidates who obtain the necessary number of votes required by law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to an end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures.
(8) The Participating States consider that the presence of observers, both foreign and domestic, can enhance the electoral process for States in which elections are taking place. They therefore invite observers from any other [OSCE] participating States and any appropriate private institutions and organizations who may wish to do so to observe the course of their national election proceedings, to the extent permitted by law. They will also endeavor to facilitate similar access for election proceedings held below the national level. Such observers will undertake not to interfere in the electoral process.
Id.
n123. OSCE Final Report, supra note 9, at 2.
n124. Miriam Shapiro, Current Developments: Changing the CSCE into the OSCE: Legal Aspects of a Political Transformation, 89 I.J.I.L. 631, 633 (1995).
n125. In the opinion of some scholars, the recognition of governments as distinct from the recognition of states has fallen out of practice. See e.g. Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (1998), at 1-6. Furthermore, Dr. Talmon notes that "the term 'recognition' or 'non-recognition' may be meant [as] an indication of [the] willingness or unwillingness on the part of the recognizing government to establish or maintain official but not necessarily intimate, relations with the government in question." Id. at 23. Of course, such willingness or unwillingness to establish or maintain official relations will have legal implications. Id. (citations omitted).
n126. Restatement (Third) Foreign Relations Law of the United States, 203, cmt. a (1986) (hereinafter Restatement) (emphasis added).
n127. See Robert D. Sloan, The Changing Face of Recognition in International Law: A Case Study of Tibet, 16 Emory Int'l L. Rev 107, 120 (2002) (noting that the U.S. Supreme Court adopted this view in Guaranty Trust Co. v. U.S. 304 U.S. 126, 137-38 (1938)).
n128. See Obiora Chinedu Okafor, The Global Process of Legitimating and the Legitimacy of Global Governance, 14 Ariz. J. Int'l Comp. Law 117, 121 (1997).
n129. Restatement, supra note 126, 204; see also U.S. Const. art. II, 2, 3.
n130. See Restatement, supra note 126, 205.
Under the law of the United States: (1) an entity not recognized as a state, or a regime not recognized as the government of a state is ordinarily denied access to courts in the United States; (2) a regime not recognized as the government of a state is not entitled to property belonging to that state located in the United Sates; (3) courts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic relations only.
Id.
n131. See Talmon, supra note 125.
n132. See Talmon, supra note 125, at 7-10 (describing four traditional models of government recognition, none of which contain features in common with the situation in Belarus). See generally Edward G. Lee, Recognition of Governments in Internal Law: With Particular Reference to Governments in Exile, 93 A.J. Int'l. L. 261 (1999) (reviewing Dr. Talmon's treatment of the topic of recognition of governments under international law and opining that Dr. Talmon's work represents the leading treatise concerning the recognition of governments in exile); Wendy T. Wylegala, Recognition of Governments in International Law, 31 N.Y.U. J. Int'l L. & Pol. 675 (1999) (observing that while Dr. Talmon does an impressive job of "taxonomy" of recognition and attempts to develop rules and exceptions in this area, he fails to provide a "cohesive picture of recognition whether descriptive or prescriptive").
n133. See supra note 9 and acompanying text.
n134. Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948). Article 21 of the Universal Declaration of Human Rights provides that
everyone has the right to take part in the government of his country, directly or through freely chosen representatives. ..." It states further that "the will of the people shall be the basis of the authority of the government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Id.
n135. The Covenant On Civil and Political Rights, G.A. Res. 2200A(XXI), U.N. GAOR, 21st Sess. No. 16 at 1, U.N. Doc A/6316 (1996).
n136. See Elizabeth F. DeFeis, Proceedings on the 201 Symposium on International Election Monitoring: Should Democracy Be a Right?," 19 Wis. Int'l L. J. 321, 324 (2001).
n137. A similar but by no means identical situation to that in Belarus occurred recently in Zimbabwe. In March 2002, Robert Mugabe announced his re-election as President of Zimbabwe in a contest termed by the Commonwealth Observer Group as held in an atmosphere of "violence and intimidation." See Commonwealth Secretariat, Report of the Commonwealth Observer Group: Zimbabwe Presidential Election 43 (2002), available at http://www.thecommonwealth.org/dynamic/ViewAPress search.asp?ID=432 (Mar. 21, 2002); see also Reuters, Treason Case Lands Mugabe Foe in Court, L.A. Times, Mar. 21, 2002, at A15; Ed O'Loughlin, Tsangirai in Court Charged with Treason, Sidney Morning Herald, Mar. 22, 2002, at 9; Staff Reporter, EU Pressures Region to Act on Mugabe, Fin. Gazette, Apr. 18, 2002, at http://www.fingaz.co.zw/ (Apr. 18, 2002). The Commonwealth Observer Team found numerous electoral violations, including the disenfranchisement of thousands of Zimbabweans, the ruling party's use of state resources for the benefit of Mr. Mugabe's campaign and the government's use of its monopoly over the media to ensure the defeat of the opposition. See Commonwealth Secretariat, supra at 43-44. The European Union, the United States and most western countries have not recognized the election results. After the election, Mr. Mugabe arrested his principal rival, Mr. Morgan Tsangirai of the Movement for Democratic Change, on treason charges. See Reuters, Treason Case Lands Mugabe Foe in Court, L.A. Times, Mar. 21, 2002, at A15. U.S. Department of State Spokesman Richard Boucher condemned the action. See BBC News, U.S. Keeps Pressure on Mugabe (2002), at http://news.bbc.co.uk/ (Mar. 21, 2002). Zimbabwe has since been suspended from participation in the Commonwealth for one year and the EU has imposed economic sanctions on it. See CNN, Zimbabwe's Anger Over EU Sanctions, (2002), at http://www.cnn.com/ (Feb. 20, 2002). In Zimbabwe, however, Mr. Tsangirai and his followers have a credible position from which to make a claim on power. See Commonwealth Secretariat, Preliminary Report on Commonwealth Observer Group to the Presidential Election in Zimbabwe, at 9-10, at http://www.thecommonwealth.org/dynamic/ViewAPress search.asp?ID=425 (Mar. 14, 2002).
n138. Talmon, supra note 125, at 33 (citations omitted).
In general, the meaning of the term 'recognition' will coincide, that is to say, recognition of a government will express both the recognizing government's willingness to enter into official relations with it and its opinion that the government recognized exists as such. This coincidence may be based on the recognizing government's understanding that it should enter into official (but not necessarily diplomatic) relations with an authority when the same fulfills the criteria prescribed by international law for the status of government and that it should not enter into such relations when the criteria are not fulfilled. However, the two meanings of the term need not always coincide. [The r]ecognizing governments may make their willingness to enter into official relations with a government dependent on criteria other than its legal status. Thus, non-recognition of, for example, a government need not necessarily mean that, in the opinion of the recognizing government, the unrecognized government does not exist as a government in the sense of international law. It may mean only that the recognizing government is unwilling to enter into normal official, i.e. diplomatic relations with it.
Id.
n139. Talmon, supra note 123, at 46.5
n140. Talmon, supra note 125, at 60 (citations omitted).
States have spoken of 'de jure recognition' and of 'recognition as a de jure government (authority or ruler)'. Before continuing the investigation into the meaning of the terms de facto and de jure recognition it is necessary to clarify the relationship in which the terms stand to these expressions. When [examining] this, it is well to remember at the outset that the term 'de facto government' in particular has been used by States and writers in more than one sense. Thus, the term de facto government has been used to describe (1) an effective government, i.e. a government wielding effective control over people and territory, (2) an unconstitutional government, (3) a government fulfilling some but not all the conditions of a government in international law, (4) a partially successful government, i.e. a belligerent community or a military occupant, (5) a government with sovereign authority, and (6) an illegal government under international law. In order to understand the literature on recognition, it is therefore essential first to establish the meaning in which a writer is using the term. Seemingly contradictory statements often stem from the fact that the writers are using the term in different meanings. It has been maintained by some writers that 'de facto recognition' and 'recognition as a de facto government' belong to 'entirely different categories of ideas' and that 'to say that a de facto recognition is recognition as a de facto government is an obvious contradiction in terms.' This view, however, has no foundation is State practice. On the contrary, States have regularly used the terms 'de facto recognition' and 'recognition "as" a de facto government, authority or independent body as synonyms.
Id.
n141. See M.J. Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (1997), at 51-85. See generally Thomas D. Grant, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995, 39 Va. J. Int'l Law 191, 222-23 (1998) (reviewing Professor Peterson's book, evaluating her analysis and approach to the issue of recognition of governments, and noting that the biggest problem for her is that many states have given up on the principle of recognizing governments as distinct from states); see also Christine M. Chinkin, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995, 92 A.J. Int'l. L. 589 (1998) (reviewing Professor Peterson's book and noting the political as opposed to the strictly legal aspects of the issue); Steven A. Engel, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995, 23 Yale J. Int'l L. 289 (1998) (reviewing Professor Peterson's book and noting that states, particularly the United States, have routinely used recognition as a political weapon, but at the same time often maintain "non-official" contacts).
n142. Peterson, supra note 141 at 53-76.
n143. It is important to note that a government need not be popularly elected to be legitimate and deserving of recognition.
n144. Peterson, supra note 141 at 77-85.
n145. See International Human Rights Law Group, Guidelines for International Election Observation (1984), at 1-10.
n146. Julia A. Glidden, Proceedings of the 2001 Symposium: International Election Monitoring: Should Democracy be a Right? 19 Wis. Int' L. J. 353, 357 (2001).
the OSCE was among the first organizations to pioneer the deployment of Long Term Observation teams ("LTOs") in the pre-and post-election period to monitor the broader political context surrounding an election. In contrast to shorter-term counterparts, LTOs set out to observe election activities in their totality - from the first appointment of election agents through to campaigning, voting, counting and declaring results and post-election activities. As a consequence, mainstream monitoring organizations, like the OSCE, now routinely rely on a comprehensive set of procedures and checklists to assess the validity of an election.
Id.
n147. Conference for Security and Co-Operation in Europe, Helsinki Final Act (1975), available at http://www.osce.org/.
n148. See OSCE Handbook, at 103-05.
n149. See id.
n150. See id.
n151. See Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int'l L. 304, 306 (1994).
n152. Lois E. Fielding, Taking the Next Step in the Development of New Human Rights: the Emerging Right of Humanitarian Democracy to Restore Democracy, 5 Duke J. Comp & Int'l L 329, 346-47 (1995).
n153. See generally Thomas D. Grant, Current Development: Afghanistan Recognizes Chechnya, 15 Am. U. Int'l L. Rev., 869, 886-894 (2000) (discussing the recognition by the Taliban of Chechnya and the relevance of recognition in general).
n154. Members of the Polish Parliamentary Commission on International Affairs are considering the holding of special hearings on the disappearances of members of the Belarusian political opposition. See Charter97, Iryna Krasouskaya and Sviatlyana Zavdzkaya Meet Polish MPs (2002), at http://www.charter97.org/ (July 17, 2002). At present, the Polish Government does not maintain official contacts with the higher levels of the Belarusian administration. See id.
n155. See Jeremy Bransten, Belarus: OSCE Says Election Flawed But Lukashenka Here to Stay, at http://www.rferl.org (Sept. 10, 2001).
n156. See id.
n157. See id.
n158. See Jeffrey Donovan, Belarus Beleaguered Opposition Seeks New Vote, at http://www.rferl.org/ (Sept. 13, 2001).
n159. Id.
n160. OSCE Parliamentary Assembly, Berlin Declaration: Resolutions Adopted During the Eleventh Annual Session (2002), available at http://www.osce.org/ (July 10, 2002).
n161. Id. at 16.
n162. Id.
n163. Id.
n164. Id.
n165. See OSCE, 2002 Human Dimension Implementation Meeting Annotated Agenda (2002), available at http://www.osce.org/ (Aug. 9, 2002).
n166. Id.
n167. Press Release, OSCE, Portuguese Chairman Urges Belarus to Comply with OSCE Commitments (Sept. 10, 2002), available at http://www.osce.org/. The Chairman's statement was issued in Vienna and not part of the Conference of the Human Dimension. It noted: "Despite all efforts made by the OSCE Chairmanship, through direct contacts with Minsk, to overcome the current difficulties between Belarus and the OSCE, the Belarusian Government informed the OSCE that it has refused to extend the visa of the last remaining member for external relations of the Advisory and Monitoring Group (AMG). The OSCE Chairmanship considers that this attitude by the Belarusian authorities does not contribute to the desirable normalization of relations between Belarus and the OSCE. The Government of Belarus must comply within its obligations undertaken within the OSCE and understand that such a step can only harm the interests of Belarus. For that purpose, a continuation of the co-operation between the OSCE and Belarus is essential and the work of the AMG has to be considered a key element in it. In the present circumstances the AMG is no longer in a position to perform its duties. The OSCE is ready to pursue consultations on the future work of the OSCE in Belarus and the Chairmanship already informed the Belarusian authorities of its intention to urgently pursue contacts with them at appropriate level in order to discuss concrete proposals." Id. The above statement is significant and telling for a number of reasons. First, it singled out Belarus for its failure to comply with OSCE obligations. See id. Second, it nonetheless failed to refer to President Lukashenka by name. See id. Third, it did not even raise the possibility of sanctioning Belarus' for its non-compliance with its OSCE obligations. See id. Also, the OSCE Chairman did not mention Belarus in his remarks during the opening of the Human Dimension Implementation Meeting. See Osce, 1st day of the implementation meeting on human dimension issues (2002), available at http://www.osce.org/ (Sept. 9, 2002).
n168. See OSCE, Human Dimension Implementation Meeting: Key Issues (2002), at http://www.osce.org/ (Sept. 18, 2002) (listing of the topics at the First Working Group dealing with elections and election observation).
n169. OSCE Office for Democratic Institutions and Human Rights, International Standards and Commitments on the Right to Democratic Elections: A Practical Guide to Democratic Elections Best Practice, available at http://www.osce.org/. (Aug. 20, 2002). The Guide is organized into three sections covering: (i) the concept of democratic elections within the framework of internationally-recognized human rights norms, (ii) practical aspects of organizing and holding democratic elections, and (iii) an elaboration of best practices. See id. Although the Guide contains a sub-section entitled "Complaint Mechanism and Dispute Resolution," it does not address what action OSCE member states should take when international standards and commitments are not observed. See id. at 25. It is both a legal and technical election guide that avoids discussion of the topic of actual electoral outcomes. See id., at 2-3, 33.
With respect to violation of applicable standards, the Guide only discusses individual rights: (i) to present evidence in support of a complaint, (ii) to a public hearing of a complaint, (iii) to a fair hearing on the complaint, (iv) to an impartial tribunal to decide the complaint, (v) to transparent proceedings on the complaint, (vi) to an effective remedy, (vii) to a speedy remedy, and (viii) to appeal an appellate court if a remedy is denied. Id. at 25. The Guide does not discuss the role of the international community in ensuring compliance, enforcement, and the consequences of the failure to observe relevant standards other than from the standpoint of offering technical assistance, nor does it address the complex, though more general topic of group rights.
Similarly, a [Draft] Convention on Election Standards, Electoral Rights and Freedoms (Draft Convention), prepared by Dr. V. I. Lysenko of the Institute of State and Law of the Russian Academy of Sciences and the Scientific and Methodological Council of the Central Election Commission of the Russian Federation, does not address the international component of non-compliance with relevant standards. V.I. Lysenko, Convention on Election Standards, Election Rights and Freedoms (2002) (forthcoming, Aug. 13, 2002 to be submitted to Council of Europe). Russia prepared this Draft Convention for submission to the Council of Europe. IFES, IFES Commentary on the Draft Convention on Election Standards, Electoral Rights and Freedoms (2002). It does not comply with a number of critical international standards. For example, the August 13, 2002 version of the Draft Convention in Article 19(8) prohibits exit polling by election observers. See Lysenko, supra. This is incompatible with the Venice Commission's Guidelines on Elections. See Eur. Comm'n for Democracy through Law, Venice Comm'n, 51st Sess. 2002, Section II.3.b (Observation of Elections). See also IFES, Commentary on the Draft Convention on Election Standards, Electoral Rights and Freedoms (Draft Convention as of February 20, 2002) (submitted to the ACEEEO Secretariat, July 2002 for a critique of the Draft Convention). It is likely that Russia will revise the Draft Convention to comply with international standards as suggested by the ACEEEO at its Annual Meeting following the September 27-29, 2002 session.
n170. See generally OSCE, supra note 165, at 17-18 (describing the Human Dimension Implementation Meeting's Working Sessions on Electoral Standards, sessions 14 and 15).
n171. The Helsinki Final Act adopted in 1975, and acceded to by Belarus in 1992, is organized into four sections referred to as 'baskets'. See Helsinki Final Act, supra note 147, at 1(a)(IV) (1975). Basket I includes a "Declaration of Ten Principles." Id. at 1. Principle VI provides for non-intervention in affairs "falling within the domestic jurisdiction of another participating state." Id. While some member states regard this as a pledge of "non-interference", the West has interpreted this phrase as meaning essentially military action. See Lawyers Comm. for Human Rights, Human Rights and U.S. Foreign Policy: the Conference on Security and Cooperation in Europe 3-4 (1991).
n172. According to the Final Recommendations of the Helsinki Consultations issued in July 1973, (known as the "Blue Book"), the Member states participating in the OSCE shall participate "as sovereign independent states and in conditions of full equality." Conference for Security and Co-operation in Europe, Final Recommendations of the Helsinki Consultations (1993), ch. 5, P 65, at http://www.osce.org/ (last visited Nov. 10, 2002). The OSCE shall take decisions on the basis of consensus which is defined as "the absence of any objection by a Representative and submitted by him as constituting an obstacle to the taking of the decision in question." Id. Consequently, as a result of these procedures, all OSCE actions reflect major compromise, often by states with disparate interests. Thus, OSCE documents reflect "least common denominator" compromises that often do not effectively address underlying problems, despite the fact that OSCE Member States are obliged to uphold various international obligations, particularly those falling under the rubric "the human dimension". See OSCE Handbook, 1975-2000, at 11. This term refers to "commitments by OSCE participating States to ensure full respect for human rights and fundamental freedoms, to abide by the rule of law, to promote the principles of democracy and in this regard, to build, strengthen and protect democratic institutions. ..." Id. at 10.
n173. Embassy of the United States of America, Minsk, Belarus, Secretary Powell's Remarks Following OSCE Ministerial Council (2001), at http://www.usis.minsk.by/ (Dec. 4, 2001) (citing Secretary Powell's full statement).
n174. Embassy of the United States of America, Minsk, Belarus, U.S.-Belarusian Relations: The Myths and the Realities (2001), at http://www.usis.minsk.by/ (Nov. 24, 2001) (citing the full text of Ambassador Kozak's speech). For additional information on U.S. policy on Belarus, see Press Statement, Philip T. Reeker, Deputy Spokesman, United States Department of State, Belarus Election Declared Undemocratic (Sept. 10, 2001), available at http://www.state.gov/ (Sept. 10, 2001) and Orest S. Deychakiwsky & Ron McNamara, Missed Opportunity in Belarus: Presidential Election Fails to Meet OSCE Standards, 34 CSCE Dig. No. 2 (2001), available at http://www.csce.gov/digest text.cfm?digest id=21 (Sept. 14, 2001).
n175. The Belarus Democracy Act of 2002, H.R. 5056, 107th Cong. 8(1)(a).
n176. See id. at 3(d)(1), 5.
n177. See id. at 6-7.
n178. Lack of Senatorial support stems from opposition in the Bush administration and the State Department giving Congress the power to dictate policy over certain substantive foreign matters.
n179. The Belarus Democracy Act of 2002, H.R. 5056, 107th Cong. 3(d)(2).
n180. See id. at preamble, 3.
n181. See International League of Human Rights, Law on Religion Favors the Russian Orthodox Church, 5 Belr. Update No. 25-26 (Victor Cole ed., 2001), at http://www.ilhr.org/ (last visited Nov. 10, 2002). Some religious and human rights groups have criticized this draft law as protecting the dominant position of the Russian Orthodox Church and harmful to Belarus' Catholic, Jewish, Moslem and Protestant minorities. See id.
n182. U.S. Department of State, Belarus: Country Report on Human Rights Practices (2001), available at http://www.state.gov/ (Mar. 4, 2002).
n183. Mark Lenzi, Selling Guns to Terrorists, from the 'Heart of Europe', Wall St. J. (Europe), Apr. 26, 2002, at A7.
n184. See id.
n185. On January 3, 2002, Belarus' U.S. Ambassador, Valery Tsepkalo, in a letter to The Washington Post claimed that Mr. Lenzi's allegations, first made in a Washington Post opinion column, were "false" and that Belarus does not sell weapons to nations to which arms sales are banned by the U.N. Security Council, such as Iraq. Valery V. Tsepkalo, Editorial: The Embassy of Belarus Responds, Wash. Post, Jan. 22, 2002, at A14 (Letter to the Editor by Hon. Valery V. Tsepkalo, [then] Ambassador, Republic of Belarus). See also S.C. Res. 661, U.N. SCOR, U.N. Doc. SC/Res/661 (1990), available at http://daccess-ods.un.org (Aug. 6, 1990) (requiring U.N. member states to participate in a trade embargo on goods which would further Iraq's ability to develop weapons of mass destruction); S.C. Res. 687, U.N. SCOR, U.N. Doc. SC/Res/687 (1991), available at http://daccess-ods.un.org/ (Apr. 3, 1991) (requiring U.N. member states to participate in a trade embargo on goods which would further Iraq's ability to develop weapons of mass destruction). In addition, the U.S. and Great Britain have taken the position that the "no fly zones" instituted over portions of Iraq at the conclusion of the Gulf War are consistent with U.N. Security Council Resolution 688 (1991), adopted April 5, 1991, and are justified under international law as necessary to prevent Iraqi attacks against Kurdish and Shiite civilians in the north and south of the country, respectively. See BBC News, No Fly Zones: The Legal Position, at http://news.bbc.co.uk/ (Feb. 19, 2001); see also Stefan Wagstyl, Tom Warner & Andrew Jack, Comment & Analysis: Ukraine and Belarus Face Mounting Suspicion, Fin. Times, Oct. 21, 2002, at 27. In recent years, Belarusian arms exports have become an increasingly important source of hard currency, as a consequence of force reductions first in the size of the Soviet and then the Russian armed forces. See Mark Lenzi, Europe's Armory For Terrorism, Wash. Post, A17 (Jan. 3, 2002). The Belarus defense industry is thus eager to find customers for its products and President Lukashenka may see little downside in continuing with such sales.
n186. See President George Bush, Address to a Joint Session of Congress and the American People, (Sept. 20, 2001), available at http://www.whitehouse.gov/ (Sept. 20, 2001) (announcing a new policy of taking direct action against states that harbor or support terrorism).
n187. U.S. Department of State, State Department Noon Briefing Transcript (Feb. 28, 2002), available at http://usinfo.state.gov/ (Feb. 28, 2002).
n188. See Radio Free Europe/Radio Liberty, Washington Seeks Moscow's Help Resolving Belarus-OSCE Row, Newsline at http://www.rferl.org/ (June 13, 2002).
n189. President of the United States of America, A Proclamation (2002), available at http://www.whitehouse.gov/ (July 13, 2002).
n190. See Press Release, European Bank for Reconstruction and Development (ERBD), EBRD Board Approves New Strategy for Belarus (May 20, 2002) available at http://www.ebrd.com/ (May 20, 2002); see also EBRD, Belarus Strategy Overview, available at http://www.ebrd.com/ (Oct. 31, 2002).
n191. See Ron Synovitz, Belarus: Lack of Democratic Reform Threatens Loan Prospects, at http://www.rferl.org/ (Nov. 7, 2001).
n192. See Press Release, The World Bank Group, Belarus: Repairing Schools and Hospitals for the Most Vulnerable World Bank loan supports retrofitting of over 450 schools, hospitals, and community homes cross the country (June 5, 2001), available at http://lnweb18.worldbank.org/ (June 5, 2001); see also Radio Free Europe/Radio Liberty, World Bank to Give Belarus $ 50 million in Chornobyl Aid, Newsline (June 4, 2002), at http://www.rferl.org/.
n193. International League of Human Rights, Lukashenka Slams Opposition, OSCE, Media in Annual Address, 5 Belr. Update No. 17-18 (Victor Cole ed., 2001) (last visited Nov. 10, 2002), at http://www.ilhr.org/.
n194. See generally Belarus at the Crossroads (Sherman W. Garnett & Robert Legvold eds.,1999) (collection of essays exploring the nature of the Belarusian-Russian relationship); see also Arkady Moshes, Russia's Belarus Dilemma, PONARS, Policy Series, Memo No. 182 available at http://www.fas.harvard.edu/ (last visited Nov. 10, 2002).
n195. See Radio Free Europe/Radio Liberty, Belarus: OSCE Says Vote Unfair; Putin Congratulates Lukashenka, at http://www.rferl.org/ (Sept. 10, 2001); see also Special Report: What Russia Wants: Vladimir Putin's Long, Hard Haul, Economist, May 18, 2002, at 24-25.
n196. International League for Human Rights, Putin, Gorbachev, Kuchma Congratulate Lukashenko, 4 Belr. Update No. 37 (Victor Cole ed., 2001) (last visited Nov. 10, 2002), at http://www.ilhr.org/.
n197. Radio Free Europe/Radio Liberty, Belarus: Lukashenka Thanks Putin for Endorsing Elections, at http://www.rferl.org/ (Oct. 19, 2001).
n198. According to data published by the Jamestown Foundation, Russia exported natural gas to Belarus at a price the equivalent of US$ 30 per thousand cubic meters (presumably during the year 2000). The Jamestown Foundation, Lukashenka, Putin, Look at the State of their Union, 7 Monitor No. 12, (Jan. 18, 2001), at http://russia.jamestown.org/. This is a price less than one-half that charged by Russia to the Ukraine and other Central/Eastern European countries. Id. Furthermore, Russia continues to subsidize the Belarusian economy in various ways. Radio Free Europe/Radio Liberty, Belarusian Premier Unveils Economic Plan of Action, Newsline (Dec. 5, 2001) at http://www.rferl.org/. For example, Belarusian Prime Minister Navitski announced that the Russian Central Bank will provide 1.5 billion Russian rubles (the equivalent of US$ 50 million dollars) to Belarus' National Bank to help stabilize the Belarusian Ruble. Id. In addition, Russia reportedly promised to provide preferential loans to Belarus in an amount equivalent to $ 30 million. Id.
n199. See Michael Lelyveld, Ukraine: Diversion of Russian Gas Continues, at http://www.rferl.org/ (Mar. 23, 2001).
n200. It may be significant that Russia, Germany, and the Ukraine are discussing building a new pipeline from Russia through Ukraine, which would reduce Belarus' leverage over the Russian economy. See Associated Press Worldstream, Russia, Ukraine and Germany sign pipeline agreement intent, 7 Alexander's Oil & Gas Connection 13 (June 27, 2002), at http://www.gasandoil.com/. A change in Russian attitudes towards Belarus may be reflected by Gazprom's significant reduction of its gas shipments to Belarus by in late October 2002. Radio Free Europe/Radio Liberty, Gazprom to Halt Gas Supplies to Belarus?, Newsline (Nov. 4, 2002), at http://www.rferl.org/. Currently, the Russian government owns approximately thirty-eight percent of Gazprom's shares. See Michael Lelyveld, Russia: Government Again Delays Gazprom Reforms, at http://www.rferl.org/ (Feb. 5, 2002).
n201. See Central Intelligence Agency, The World Factbook 2002: Belarus (2002), available at http://www.cia.gov/ (last updated Jan. 1, 2002). In absolute terms Belarus' exports to and imports from Russia are estimated to be the equivalent of US $ 4.1 billion dollars and US $ 5.3 billion dollars, respectively, for the year 2000. See id.
n202. Treaty on a Union Between Belarus and Russia, Apr. 2, 1996, available at http://www.oaza.co.yu/ (Apr. 3, 1997).
n203. The treaty establishes an ill-defined union, regulated on the basis of a "charter," aimed at facilitating cooperation and coordination of activities by the two countries in the political, economic, social, national security, and legal spheres. See Byelorussian Resident's Administration, Belarus-Russia: Along the Road to Unity, at http://www.belarus.net/ (Apr. 2, 1996).
n204. This treaty envisions the establishment of certain bodies - a Supreme Council of the Union, a Parliamentary Assembly of the Union, an Executive Committee and in the case of necessity, other bodies. Treaty on the Union of Belarus and the Russian Federation, Apr. 2, 1997, arts. 20-29, 1990 U.N.T.S., 138, 147-50. The basic duties of the member states of the union include promises to ensure freedom of speech and the means of mass information and to observe other rights and the freedom(s) of individuals embodied in international legal documents and national legislation. See id. art. 13, at 133-43. Despite taking these steps, Russia has always dragged its feet on further integration with Belarus by, for example, not appropriating any or sufficient funds in its budget to permit the Russian government to uphold its commitments. See The Jamestown Foundation, Lukashenka, Putin Look at the State of Their Union, 7 Monitor No. 12 (Jan. 18. 2001), at http://russia.jamestown.org/.
n205. See Russian Federal Constitutional Law No. 6-FKZ. (2001); see generally Radio Free Europe/Radio Liberty, Newsline (Dec. 3, 2001), at http://www.hri.org/ (examining the Procedure for Acceptance into the Russian Federation and Formation of its Composition of New Subjects of the Russian Federation. All of the articles from this issue of Newsline touch on this topic).
n206. See id.
n207. See Keith Bush, Russian Economic Survey, U.S.-Russia Business Council (2001); see also Sergei Tarkhov, Land Resources of Russia: Population, at http://www.iiasa.ac.at/ (last visited Oct. 30, 2002).
n208. See Murray Feshbach, Human Capital and the Social Contract: Russia's Demographic and Health Meltdown, (forthcoming monograph to be published by U.S. Senate Joint Economic Committee as part of a compendium, at http://jec.senate.gov/). See also Dmitri Trenin, The End of Eurasia: Russia on the Border Between Geopolitics and Globalization, at 212-13 and 308-09 (2002) (discussing of the demographic impact of Russia on its relations with China).
n209. See Jeffrey Tayler, Russia is Finished, Atlantic Monthly (2001) (offering a pessimistic but by no means indefensible vision of Russia's future). According to the Russian AIDS Center, within five years there will be up to five million HIV individual patients in the country, but this figure does not include undiagnosed individuals with AIDS. See Feshbach, supra note 208, at 291; see also Thomas H. Maugh II, Former Soviet Bloc Hit by Skyrocketing Rate of HIV, L.A. Times, Nov. 29,2001, at A1.
n210. See Maugh, supra note 209.
n211. See Radio Free Europe/Radio Liberty, Belarusian Premier Unveils Economic Plan of Action and Says Russia Not Ready for Unification with Belarus, Newsline (Dec. 5, 2001), at http://www.rferl.org/.
n212. See id.
n213. See Charter97, Russia Belarus: Climate Grows Colder, at http://www.charter97.org/ (Dec. 4, 2001).
n214. Belarus: Agreement Reached with Russia on Gas Supplies, Radio Free Europe/Radio Liberty, Dec. 10, 2002, at http://www.rferl.org.
n215. Pursuant to the Russia's Constitution, principal foreign policy making power is placed in the hands of the President, though such policy must be carried out through the Russian foreign policy establishment and cannot overlook the positions of the principal interests groups in the country. See Konst. RF art. 86 (1993), available at www.uni-wuerzburg.de (last visited Nov. 10, 2002). In June 2002, after a two-day meeting with President Lukashenka at which the proposed Russian-Belarusian Union was discussed, President Putin seemed to indicate that closer ties between the two countries were out of the question, though he attempted to justify his position primarily on the economic and practical grounds. Natalia Yefimova, Putin Squashes Belarus Union, Moscow Times, June 17, 2002, at 1. In response to questions about the possible unification of the two countries, President Putin remarked, "trying to restore the Soviet Union at any cost, including at the expense of Russia's economic interests, would only ... weaken Russia ... . And who wants to be friends and live together with someone weak?" Id. The Belarusian Embassy in Washington did not discuss in detail the substance of the Lukashenka-Putin meetings; this supports the view that there were significant disagreements as to the future direction of Russian-Belarusian relations. See Alexander Lukashenka Holds a Conference on Implementation of the Agreements Reached at His Meeting with President of Russia, Wkly. Dig. Belr. News, June 20, 2002, available at http://www.belarusembassy.org/. Nonetheless, in a subsequent press conference, Mr. Putin reaffirmed his public support of President Lukashenka, perhaps because his comments attracted some domestic opposition (including that from former Russian President Boris Yeltsin). See Luba Schwartzman, ORT Review, Johnson's Russ. List, at http://www.cdi.org/ (June 25, 2002). On June 25, 2002, Mr. Putin indicated that any union between Belarus and Russia would have to be on the basis of a unitary state (i.e. Belarus becoming part of the Russian Federation), rather than on the basis of a draft Russia-Belarus Union Constitution presented by President Lukashenka, which provided for the preservation of Belarus' sovereignty and territorial integrity. See Radio Free Europe/Radio Liberty, Putin Says Economy is First Priority and Repeats Skepticism of Union with Belarus, Newsline (June 25, 2002), at http://www.rferl.org/.
n216. See, e.g., Charter97, Justice Ministry Confirms Constitutional Violations by Lukashenko, at http://www.charter97.org/ (Dec. 12, 2001) (discussing the fact that Edict No. 19 of the President of Belarus, dated January 19, 1998, was not officially published as required by Article 7 of the 1996 Constitution). This edict apparently ordered the creation the special unit, which operated as a death squad within Belarus. See id.
n217. See Radio Free Europe/Radio Liberty, Putin Invites Belarus to Form Federal State ... as Analyst Explains Putin's Tactics, Newsline (Aug. 15, 2002), at http://www.rferl.org/; see also Maura Reynolds, Merger Outline Calls for Belarus to be Swallowed Up Russia; Europe: But Hours After Announcing the Plan with Putin, Belarus' Leader Rejects it, L.A. Times, Aug. 15, 2002, at A3.
n218. See Radio Free Europe/Radio Liberty,: Belarusian President Slams Putin for 'Ultimate Integration Proposal' Pledges to Remain True to Union Treaty Signed with Yeltsin. as Poll Says Only 3.5 Percent Favor Belarus' Absorption by Russia, at Newsline (Aug. 22, 2002), at http://www.rferl.org/.
n219. See id.
n220. Mr. Lukashenka could conceivably organize another referendum to extend his presidential term again or claim that the two-term limitation contained in Article 81 of the 1996 Belarusian Constitution does not apply to him since he was first elected in 1994, prior to its adoption.
n221. See id. It should be noted that public opinion polling in Belarus can be highly unreliable with volatile results. Not only will responses vary depending on the nature of the question, they are affected by the limited access respondents have to information. Polling data also reflect individuals' fear of possible retribution for providing a candid answer to a pollster. For an interesting discussion of Belarusian attitudes on a union with Russia, see Timothy J. Coulton, Belarusian Public Opinion and the Union with Russia, in Independent Belarus, supra note 9, at 21-54.
n222. For example, according to the editor of one opposition newspaper, Nasha Svaboda, his newspaper was closing down since the authorities seized its equipment and froze its bank account following the levying of a large fine for libel by a Minsk District Court. See Radio Free Europe/Radio Liberty, Editor Announces Closure of Belarusian Opposition Newspaper, Newsline (Aug. 28, 2002), at http://www.rferl.org/.
n223. Susan B. Glasser, Belarus Chief Responds to Critics with Crackdown, Wash. Post, Aug. 19, 2002, at A20.
n224. See International League for Human Rights, OSCE Recalls One of Two Remaining Diplomats in Belarus, Urges Belarus to Cooperate, 5 Belr. Update No. 23-24 (Victor Cole ed., 2002) (last visited Nov. 10, 2002), at http://www.ilhr.org/ EU; International League for Human Rights, EU Criticizes Belarus for Refusing Visa to Top OSCE Official, Belr. Update No. 23-24 (Victor Cole ed., 2002) (last visited Nov. 10, 2002), at http://www.ilhr.org/ EU; International League for Human Rights, US Urges Belarus to Provide Evidence of Commitment to OSCE and Calls on Moscow to Facilitate Belarus-OSCE Rapprochement, 5 Belr. Update No. 23-24 (Victor Cole ed., 2002) (last visited Nov. 10, 2002), at http://www.ilhr.org/ EU; International League for Human Rights, Putin Responds with Criticism of Russia-Belarus Union Plans, 5 Belr. Update Nos. 23 & 24, June 2002, at http://www.ilhr.org/.
n225. See Amnesty International, Amnesty International Welcomes Release of Former Prime Minister, at http://www.amnestyusa.org/ (Nov. 30, 1999). Furthermore, in what has been characterized by the Chigir family as "political prosecution," the Minsk City Court upheld the conviction and sentence of former Prime Minister's son for car theft. See Radio Free Europe/Radio Liberty, Belarus: Court Backs Conviction of Opposition Leader's Son, at http://www.rferl.org/ (June 18, 2002). He was sentenced to a maximum-security prison for more than seven years. See id.
n226. Radio Free Europe/Radio Liberty, Lukashenka Unleashes a Wave of Arrests, 4 Pol., Belr., Ukr. Rep. No. 3, (Jan. 22, 2002), at http://www.rferl.org/.
n227. See International League for Human Rights, Police Violently Disperse Protest March in Minsk, 102 Detained, 5 Belr. Update No. 16, (Victor Cole ed., 2002) (last visited Nov. 10, 2002), at http://www.ilhr.org/.
n228. See Radio Free Europe/Radio Liberty, Belarusian Police Arrest 14 Journalists, Newsline (Apr. 8, 2002), at http://www.rferl.org/; see generally Reporters Without Borders, Belarus-Annual Report, available at, http://www.rsf.fr/ (describing post-September 11 developments with respect to the media).
n229. See Radio Free Europe/Radio Liberty, Belarus: Minsk Threatens to Expel OSCE Mission Chief, at http://www.rferl.org/ (May 17, 2001).
n230. Radio Free Europe/Radio Liberty, Belarus Says OSCE Unlawfully Appointed Special Envoy, Newsline (Apr. 19, 2002), at http://www.rferl.org/; see also Press Release, OSCE, Portuguese Chairmanship Urges Belarus to Comply with OSCE Commitments, (June 4, 2002), available at http://www.osce.org/ (June 4, 2002); Press Release, OSCE, OSCE Chair Urges Belarus to Make Proposals for Improving Relations (June 6, 2002), available at http://www.osce.org/ (June 6, 2002). Despite the refusal of the Belarusian Government to permit the AMG's presence in the country, the OSCE Permanent Council has declared its commitment to have a monitoring capability in Belarus. See Press Release, OSCE, OSCE Chairmanship committed to talks with Belarus (Nov. 5, 2002), available at http://www.osce.org/ (Nov. 5, 2002).
n231. Radio Free Europe/Radio Liberty, New PACE Head Sees Belarus as a 'Problem', Newsline (Jan. 22, 2002), at http://www.rferl.org/.
n232. Radio Free Europe/Radio Liberty, While Wives of Missing Figures Appeal for Independent Probe, Newsline (Jan. 23, 2002), at http://www.rferl.org/.
n233. See Radio Free Europe/Radio Liberty, PACE Offers Help in Probing Disappearances in Belarus, Newsline (June 13, 2002), at http://www.rferl.org/.
n234. Radio Free Europe/Radio Liberty, Most EU Countries Impose Travel Ban on Belarusian President, Seven Other Officials," Newsline, (Nov. 20, 2002); available at http://www.rferl.org/. The seven Belarusian officials include: presidential administration chief Ural Latypau, Premier Henadz Navitski, Defense Minister Leanid Maltsau, Interior Minister Uladzimir Navumau, Foreign Minister Mikhail Khvastou, Justice Minister Viktar Halavanau, and KGB chief Leanid Yeryn. Id.
n235. Radio Free Europe/Radio Liberty, US Impose Travel Ban on Belarusian President," Newsline, (Nov. 27, 2002); available at http://www.rferl.org/newsline/2002/11/271102. asp.
n236. Aleksandr Klaskovsky, Victory Sets a Trap for Lukashenko, at http://elections.belapan.com/ (last visited Nov. 10, 2002).
n237. If reports that Belarus is exporting weapons to countries such as Iraq and Sudan, and that some of these weapons are being transshipped to Islamic extremist groups with the connivance of the Lukashenka Government, NATO, and particularly U.S. pressure will mount to encourage Russia to end its support of President Lukashenka. See President George Bush, supra note 183. President Putin cannot ignore these reports. According to the Belarus Update citing both Interfax and Itar-Tass, "the Lukashenka government [has] vehemently denied accusations by German and Israeli media that it had sold weapons to terrorist organizations and rogue states." International League for Human Rights, 4 Belr. Update No. 52 (Victor Cole ed., 2001) (last visited Nov. 3, 2002), at http://www.ilhr.org/ (quoting Belarusian Foreign Minister Mikhail Khvostov as stating that, "Belarus does not trade in weapons with countries to which the UN Security Council has prohibited arms sales.").
n238. See Peterson, supra note 141, at 50-85.
n239. See OSCE Final Report, supra note 9, at 5.
n240. See, e.g., Lenzi, supra note 183.
n241. See id.; see also The Vienna Convention on Diplomatic Relations and Optional Protocols, Apr. 18, 1961, 500 U.N.T.S. 95. Under customary international law, the head of state doctrine provides for immunity to a head of state, with respect to the official's official acts. If evidence surfaced that President Lukashenka was involved in the disappearances of opposition figures, leaders in some OSCE member states could decide that they have no legal obligation to grant President Lukashenka immunity either on the grounds that he was not engaged in official acts with respect to the disappearances of opposition figures or that he was not the legitimate Belarusian head of state. For an individual such as President Lukashenka, to benefit from head of state immunity, he must be deemed by the receiving country [e.g. the U.S.] as the "head of state." See United States v. Noriega, 746 F. Supp 1506, 1519 (S.D. Fla. 1990) (citing In re Grand Jury Proceedings, Doe #700, 817 F.2d 1108, 1110 (4th Cir. 1987)).
n242. See Gilbert Sison, Recent Developments: A King No More: The Impact of the Pinochet Decision on the Doctrine of Head of State Immunity, 78 Wash. U. L.Q 1583, 1584, 1601 (2000) (noting that while the Pinochet case could be interpreted as carving out a new exception to the doctrine of head of state immunity, its impact on international law is not clear); see also Adam Isaac Hasson, Extraterritorial Jurisdiction and Sovereign Immunity on Trial: Noriega, Pinochet, and Milosevic - Trends in Political Accountability and Transnational Criminal Law, 25 B.C. Int'l & Comp. L. Rev. 125 (2002); William J. Aceves, Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation, 49 Harv. Int'l L.J. 129 (2000) (both Hasson and Aceves see the willingness of domestic courts to enforce internationally recognized human rights as an important step in avoiding problems connected with establishing ex post accountability for human rights violations); but see Harold Hongju Koh, How is International Human Rights Law Enforced? 74 Ind L.J. 1397, 1414 (1999). As noted above, Professor Koh served as Assistant Secretary for Human Rights during the Clinton Administration. He is less supportive of a "liberal approach" to the protection of human rights.
n243. See Georg Schwarzenberger, A Manual of International Law, 62-63 (4th ed. 1960).
n244. Conference for Security and Co-operation in Europe, supra note 37.
n245. OSCE Parliamentary Assembly, supra note 160.