Although according to the wording of the Agreement, it is, inter alia, aimed to provide cooperation “to ensure state and public security, protect human and civil rights and freedoms”, the Agreement contains inconsistency and ambiguity in the wording of its norms. In his expert opinion, a renowned Belarusian lawyer Mr. Pogonyailo draws attention to doubts about Agreement’s compliance with the Constitution of Belarus.
The Law “On International Treaties of the Republic of Belarus” allows to refer the document under consideration to international agreements of an interdepartmental nature. But the Agreement does not meet the specified requirements of the above-mentioned Law, contains legal ambiguity, in particular it does not directly follow from the Agreement whether it allows the Rosgvardiya’s units to perform police functions on the territory of Belarus.
Mr. Pogonyailo stresses that it is important to remember, that in accordance with Article 4 of the Articles on State Responsibility adopted within the framework of the UN, the fact that law enforcement officers of the Russian Federation operate on the territory of Belarus does not exclude the responsibility of the Russian Federation for violating international law, including human rights, on the territory of Belarus.
The main cause for concern is Article 4 of the Agreement which allows at any time to introduce a military contingent of Russia into the territory of Belarus, both if there is a request for the introduction of troops, and without it. Taking into account the events, occurred in Ukraine in 2014, Pahaniaila points out that under the guise of international obligations according to this Agreement, the actual occupation of Belarus may take place.
Regarding the question of the constitutionality of the Agreement under consideration, it is necessary to pay attention not only to the content of its norms, but also to the procedure for conclusion. Neither the laws of the Republic of Belarus, nor the Presidential Decree on the approval of the Regulations on the Ministry of Internal Affairs do not empower the Ministry of Internal Affairs to conclude such international treaties (agreements) on behalf of the Republic of Belarus.
Mr. Pogonyailo’s expert opinion concludes that the agreement concluded on November 19, 2020 between the Ministry of Internal Affairs of the Republic of Belarus and the Federal Service of the National Guard of the Russian Federation is unconstitutional and violates the principles and standards of international law.
The full text of the expert opinion by Head of the Legal Committee at the Belarusian Helsinki Committee Garry Pogonyailo is available here.