Abstract
This article shows Russian point of view on the evolution of Eurasian integration as related to plans to create a Eurasian economic entity based on the EurAsEC model that began with the creation of the Customs Union and Common Economic Space. The article analyzes the legal theory of Russian authors of EurAsEC, based on a review of this integration and the legal documents of this process. The article details the institutional mechanism of the functioning of Eurasian integration and its legal characteristics, and gives a short legal history. The article shows that integration of post-Soviet countries based on EurAsEC is more successful than integration based on the CIS model despite the lack of supranational power of the institutions of EurAsEC.
Keywords
Globalization and regionalization in Russian Legal Doctrine
The current stage of integration in the world shows us two dialectically, jointly conditioned but internally antagonistic processes: globalization and regionalization.
Globalization is a universal phenomenon that reflects the growing interdependence of states in addressing common problems and also the close relationship between international and national law (Coleman & Underhill, 2012; Lukashuk, 2002; Marchenko, 2010; Tolstyh, 2009).
Sustainable regional integration systems using the goodwill of the participants take on a coordinating function. This allows the different countries to present themselves at the global level as a united structure to protect their common interests (Farhutdinov, 2005).
Immanuel Kant said that the Supra-state is a transitional stage on the way to world peace. He upheld the standpoint of a cosmopolitan ideal of norms operating independently of the State that limits (but does not destroy) the sovereignty of the State (Malfliet, Timiriasov, Zdunov, & Sultanov, 2004).
The legal sphere shows us strong integration processes and harmonization of the legal systems of different countries, where uniform regulation is established. The most interesting experience of integration is the law of the European Union. The union of states on the principle of voluntarism is not just a political union, but the integration of economies. It is fair to say that the economy, through the integration of business entities, involves other spheres of public life (Kashkin, 2008). Nowadays, Russian doctrine of regional integration more concentrates on the economic aspects of regional integration.
The essence of the integration processes at the international level suggests that, historically, the evolution of integration has occurred as part of basic steps, each of which shows a certain degree of “economic maturity” – the free trade area, customs union, common market, and economic union (Franca Filho, Lixinski, & Olmos Giupponi, 2010; Nikolaeva, 2010). Within each stage two dialectical tendencies co-exist – the desire of states not to lose their sovereign identity and at the same time the desire to use the supranational mechanisms for their own purposes.
The ultimate goal of all the steps on the way to integration is the harmonization of domestic legal systems as a means of ensuring the free movement of the factors of production: goods and services, labor, investment, and finance.
This result can be achieved only if the state transfers much of its competence to the organs of the economic integration system. In the final analysis, harmonization and unification strengthen the methods of supranational regulation and, therefore, make it easier to control the whole process of integration. In the course of regional integration, we can observe certain processes causing and revealing the essence of integration. First of all, the development of two or more third-party relations between states through treaties. After that the expansion of direct economic relations follows, both between states and between transnational or regional companies.
Supranational law is formed through the interaction of international and domestic law of the states, forming the legal superstructure that different authors define as either transnational law or supranational law (Vel'iaminov, 2004).
We need to notice that the integration processes in the laws of the states as agents of integration formation show us the convergence process of unification, the introduction of common technical and legal standards. Supranational unification of law is qualitatively different from international law. The basis of the supranational unification of private law is the activity of authorized bodies of supranational organizations which creates acts that come from integrated authorities such as European Union directives, decisions, and recommendations adopted by the executive, legislative and judicial branches of the integrated community whose nature must be understood as supranational standardized acts (Rafaliuk, 2010).
Regional integration can be achieved by using a special legal regime that can function in the framework of international regimes. In this article we speak about a regional regime that concentrates on economic and political integration. According to some experts, member states do not transfer to the union the right to exercise power in their place, but provide limited authority to perform certain activities instead (Ryzhov, 2006).
The process of integration acquires its institutional form through the mechanism of harmonization of national legislation, which can take many forms. All these measures are related to the control of the implementation of and compliance with the harmonized legislative and other normative legal acts of the member states. For example, the Agreement on the Customs Union and Common Economic Space (signed in Moscow on 26 February 1999) states that “for the purposes of this Agreement the following terms and expressions shall have the following meaning: the single economic space – the space, of the Parties’ territories, where the same type of mechanisms to regulate the economy based on market principles and application of harmonized legal rules operate, there is a single infrastructure and coordinated fiscal, monetary, foreign exchange, financial, trade and customs policies are implemented to ensure the free movement of goods, services, capital and the labor force ”. 1 As was rightly observed by N.G. Doronina, who carried out detailed research on the effect of harmonization of law and unification of the economy, the unification of law should be defined “as targeting the harmonious interaction of different legal systems and the interaction of the national legal systems that have already achieved a degree of harmony” (Doronina, 1997).
“Dogovor o Tamozhennom sojuze i Edinom jekonomicheskom prostranstve” (26 February 1999), Sobranie Zakonodatel'stva RF. 2001. No. 42. Art. 3983.
Membership in the regional integration systems provides different benefits to the members. Organizations which function as the institutional basis of integration are composed of different institutions with supranational power (and competence of subordinate order). This is the main purpose for establishing the international courts, which have a legal personality to form, interpret, and use the law. By applying this integration law they guarantee the functioning of the unification law area. For example, in Latin America international courts are established in the framework of integration associations. The decisions of these courts provide a uniform formation, interpretation, and application of the law on the basis of their competence. The decisions of “integration courts” make unifying features through the formation of a legal space within the integrated union (Rafaliuk, 2010).
The “law of integration” has elements which are manifested in the framework of integration formations; it can be attributed to the area of international law by defining its location in the general part of international law (Vorontsova, 2004).
As a result, on this background, we can see the development of the “law of economic integration” as a part of international economic law (Efremova, 2008).
The example of failed regional integration based on CIS – model shows that that successful integration cannot be obtained only by the political will of members. Integration as a legal phenomenon without an adequate level of economic development is impractical, both in general and in particular for its participants.
An important issue is how to regulate the functioning of the right of interstate association. In the first phase, the main defining tool for this is the constitution of each state that is a party to such an association and international law, but in the second phase it is the acts of interstate organizations.
Under the generic term “international organization” we use the term “interstate association” although in Russian legal thought it is alleged that a separate group could be singled out by demarcating the following characteristics: interstate unions express a greater degree of integration of regional states by virtue of their historical commonality; the structure of international associations reflects a system of institutions of the member states; they are characterized by a higher level of imperativeness of interstate associations’ acts and their impact on national legislation; and they have the judicial institutions to resolve disputes and conflicting procedures (Vorontsova, 2004).
An internal system of regional integration in the legal field is a special level of legal integration that includes unification processes within the existing system with the subordination to the common legal system, communications, and legal principles (Potapenko, 2010). Anyway, we can definitely say that members of EurAsEC chose the way of integration based on the principles of EU integration. For example, regional integration based on EurAsEC model is mostly manifested in the areas where the supranational legal system will be effective in protecting the economic interests of each individual member. The issue of the protection of intellectual property basically represents an immediate and urgent need for the early establishment of the single market for intellectual property rights (IPR) in the European Community. Part of the problem of the protection of intellectual property is the mechanism of its legal protection that is as far as possible similar for all Member States of the European Community, since it has been observed by several experts that there is a tendency towards regionalization, i.e. cooperation of states by geographical principles, in the sphere of international scientific and technological cooperation (Valeev & Kurdiukov, 2010). Moreover, the European Commission refers to this fact in its White Paper “Completing the Internal Market”.
There are two main legal forms of activity that lead to regional integration and as a consequence to the creation of a single European market for IPR. The first form is the effective work of the Court of Justice of the European Communities. A number of judgments of the Court have already been laid down for future decisions on a range of fundamental problems in the legal protection of intellectual property. Court activity in this area has led to the second legal form: namely, unification and harmonization processes of EU institutions which have influenced the legal protection of intellectual property. This activity has resulted in the adoption of a number of documents that have led to further improvements in legislation. In fact, unification and harmonization were the methods of overcoming the ambiguity in the legal regulation of intellectual property. The perfect example is the so-called Green Books, adopted in the period 1980–1990, which helped to develop and put in place a number of directives and regulations in the field of IPR by European Union institutions (Eechoud, Hugenholtz, van Gompel, Guibault, & Helberger, 2009).
A significant step towards the integration of IPR within the Eurasian Economic Community (EurAsEC; also Community) was the adoption of the Eurasian Patent Convention, which was the basis for the creation of a common patent space and the main condition of establishing a common market for IPR in the region (Eremenko, 2011). Based on a principles of European Patent Convention, Eurasian Patent Convention show us the example of transplantation of European ideas on the Eurasian ground. Supranational bodies were established in EurAsEC just as in the European Union. However, some authors criticize the very idea of the supranational nature of EurAsEC (Kembayev, 2009). For example, while several experts highlight that in addition to finance and the regime of national services the North American Free Trade Agreement (NAFTA) gives special attention to the management of IPR issues (Blandford, 1995), Y.M. Yumashev, nevertheless, emphasizes, “The United States have given up on supranational experiments and by creating a North American free trade zone with the rules of the GATT/WTO they, as the countries of the Asia-Pacific region, followed the suit of the traditional international organizations, the functioning of which is based on a principle of sovereign equality of member states of interstate cooperation (Jumashev, 2006).
The measures to be taken to regulate private law relationships arising in the field of regional integration illustrate common approaches towards regional integration and lead to the creation of a specific legal regime that regulates the circulation of capital within a particular region. Based on this finding, it can be concluded that the process of regional integration affects, through the harmonization and unification of the law, the creation of different institutions of supranational organizations, especially in the economic sphere of regional communities. The rights of regional communities gradually developing through regulation of the economic sphere have an effect on other aspects of public life. The economic effects eliminate the political costs of integration and, therefore, the criterion of integration effectiveness is the degree of harmonization and unification of rights of regional community members.
Practice of regional integration (executive, legislative and judicial bodies)
The example of regional integration in the post-Soviet area is the history of Eurasian integration which began in 1995 when the Agreement on the Creation of the Customs Union between Belarus and the Russian Federation was signed. 2 After some time Kazakhstan joined this Agreement. In 1996, these three countries established the Treaty on Enhancing Integration in Economic and Humanitarian Spheres, which was also signed by Kyrgyzstan. Three years later these countries, along with the addition now of Tajikistan, signed the Agreement on the Customs Union and Common Economic Space. 3
Soglashenie o Tamozhennom soiuze mezhdu Rossiiskoi Federaciei i Respublikoi Belarus’ (6 January 1995) SZRF (1996), No. 45, item 5057.
Dogovor o Tamozhennom soiuze i Edinom ekonomicheskom prostranstve (26 February 1999) SZRF, No. 42, item 3983.
In 2000, these five countries created a new organization – EurAsEC – by signing the Treaty on the Creation of the Eurasian Economic Community. This led to the creation of different Eurasian integration and working institutions such as the Interstate Council, which consists of heads of state and heads of government, the Integration Committee and its secretariat, the Interparliamentary Assembly, and the Commission of Permanent Representatives. According to Article 3 of the Treaty, the governing bodies of EurAsEC are:
the Interstate Council the Integration Committee the Interparliamentary Assembly the Court of Justice.
4
Art. 3, “Dogovor ob uchrezhdenii Evraziiskogo ekonomicheskogo soobshhestva”, SZRF (2002) No. 7, item 632.
The supreme body of EurAsEC is the Interstate Council. The Council is made up of the heads of state and heads of government of the member states.
The Council promotes the common interests of the member states of the Community, defines the strategy, directions and perspectives for developing integration, and takes decisions aimed at implementing Community goals and objectives. The chairmanship of the Council rotates among the member states, selected in Russian alphabetical order, for a term of one year. The main activity of the Council is approving resolutions on a consensus basis, and these resolutions are implemented by the adoption of the necessary national normative legal acts. The Council appoints the chairman of the Integration Committee and oversees the Committee which is accountable to the Council in a number of matters.
The second main body of EurAsEC is the Integration Committee. The Committee is a permanent body of the Community. The deputy heads of member states’ governments represent their governments on the Committee to examine key questions relating to various aspects of integration, adopt resolutions within the limits of the Committee's authority, and provide for the activities of the Council at the level of heads of state and heads of government. Chairmanship of the Committee and Council is assumed according to the same principle: each member state of the Community can have its turn as chairman, rotated in the order of the Russian alphabet, for a period of one year.
The Interparliamentary Assembly (IPA) of EurAsEC is the organ of parliamentary cooperation. The Assembly consists of deputies delegated by the parliaments of the member states of the Community that perform their functions in the framework of the Community. The total number of delegates is 90:
Belarus – 16 parliamentarians Kazakhstan – 16 parliamentarians Kyrgyzstan – 8 parliamentarians Russian Federation – 42 parliamentarians Tajikistan – 8 parliamentarians.
5
Polozhenie o Mezhparlamentskoi Assamblee Evraziiskogo ekonomicheskogo soobshhestva (23 June 2006), available at <http://www.evrazes.com/docs/view/15>.
The Chairman of the Assembly and his or her deputies naturally participate in the meetings of the Assembly. Members of the Assembly must be heads of parliament (chambers of parliaments) of Community member states.
Simply put, the Assembly's main objective is to provide the legal basis for the Community. This can be done by the harmonization of the national legislation of Community member states. The main aim of this is to achieve the objects and purposes of the Community.
The Court of Justice is the official judicial body of EurAsEC that resolves legal disputes which arise between member states and addresses matters related to Community law. An interesting fact is that from 3 March 2004 and for a number of years thereafter the duties of the Court were carried out by another institution which is not a body of the Community – the Economic Court of the Commonwealth of Independent States (CIS). Only in November 2009 did the Court of Justice begin to carry out its duties as the official judicial body of EurAsEC, and finally in July 2010 the Community made this clear when it adopted an amended version of the Statute of the Court of Justice of EurAsEC.
According to Article 8 of the Treaty on the Establishment of the Eurasian Economic Community, there are four main functions of the Court:
Consider the cases on conformity with the instruments of the customs union's organs to international treaties forming the legal framework of the customs union; Consider the cases disputing actions (inaction) of the customs union's organs; Provide interpretation of international treaties forming the legal framework of the customs union, and regulations adopted by the customs union's organs; and Settle disputes between the customs union Commission and the member states of the customs union, as well as disputes between the member states of the customs union concerning fulfillment of their obligations undertaken within the customs union.
The Court has direct and indirect competence. Direct competence can be affected by dispute resolution and indirect competence by the control of norms that have been created by EurAsEC. The Statute states that the competence of the Court can be enhanced through the procedure of implementing the provisions of other treaties that will be adopted in the framework of EurAsEC and the Customs Union. 6
p. 5 Art. 13 «Statut Suda Evraziiskogo ekonomicheskogo Soobshhestva» (hereinafter Statut Suda), SZRF (2011), No. 38, item 5322.
The jurisdiction of the Court includes the legal disputes that take place between the governments of member states of EurAsEC and between the governments and Commission of the Customs Union (or the Eurasian Economic Commission). 7 Another field of legal matters which the Court deals with is control of the norms for uniform interpretation of international treaties adopted by the Community and also the decisions of Community institutions. 8 There are two types of such control of the norms: preliminary and subsequent.
podp. «g» p. 4 Art. 13 Statut Suda.
p. 1 Art. 13 Statut Suda; Art. 3 «Dogovor ob obrashhenii v Sud Evraziiskogo ekonomicheskogo soobshhestva hoziaistvuiushhih sub”ektov po sporam v ramkah Tamozhennogo soiuza i osobennostiah sudoproizvodstva po nim i Statut Suda Evraziiskogo ekonomicheskogo soobshhestva», 9 December 2010, No. 534 (hereinafter Dogovor ot 09.12.2010), SZRF (2011), No. 30, item 4581.
Preliminary control of the norms is possible only in the national high courts of governments – members of the Customs Union and Common Economic Space (CUCES) – which can send a prejudicial request directly to the Court on the question of the application of the international treaty in the case. Prejudicial request is a form of control that prescribes stopping the litigation at the national court level until the Court gives its official decision mandatory for national courts.
Subsequent control has the following two forms: first, interpretation of Community law that has a recommendation character as consultative conclusions and analysis of the acts of CUCES; and, second, analysis of the acts of CUCES to the international treaties of CUCES and decisions of the Court. This means that if the Court receives a petition regarding the annulment of a Community act, it decides the suitability of the act to the international treaties of EurAsEC and CUCES. Any discrepancy divides into three types: lack of competence of the institution, wrong procedure of enactment of the act, and the misuse of supranational power. If any of these infringements takes place, then it could be said that the act is void. 9 Subsequent control also covers the petitions from economic entities that challenge the activity or inactivity of the institutions of CUCES. 10 However, these petitions are accepted by the Court after they have first been made to the Commission of the Common Economic Space. That is why we can say that the control of the norms that are adopted in the framework of EurAsEC is a function reserved only to the Court. The Court's decision is definitive; if any subject does not execute it, it is possible to request of the Court to petition the High Eurasian Council. 11
Art. 11 of «Decision Mezhgosudarstvennogo Soveta EvrAzeS ot 09.12.2010 N 534», available at <http://www.evrazes.com/docs/view/22>.
Art. 2 Dogovor ot 09.12.2010, Art. 13 Statuta Suda.
p. 2 Art. 20 Statut Suda, Art. 12 Dogovora ot 09.12.2010.
In 2008, three states – Belarus, the Russian Federation, and Kazakhstan – decided to create a customs union based on EurAsEC, and in 2010 they officially formed the Customs Union. Also in 2010, the entry into force of the treaty titled the Customs Code of the Customs Union signed between the same states resulted in the adoption of a unified customs tariff which canceled a wide range of internal protective measures. Then on 9 December 2010, the three member states further declared they wished to go forward with plans for creating a unified and harmonized economic market, which included the idea of creating a supranational organization. EurAsEC was also actively involved in this process by adopting several decisions. 12
“O vstuplenii v silu mezhdunarodnyh dogovorov, formiruiushhih Edinoe iekonomicheskoe prostranstvo Respubliki Belarus’, Respubliki Kazahstan i Rossiiskoi Federacii”, Decision (19 October 2011) No. 100, available at <http://www.evrazes.com/i/data/item7583-2.pdf>; “O proekte Deklaracii o formirovanii Evraziiskogo ekonomicheskogo soiuza”, Decision (23 September 2011) No. 803, available at <http://www.evrazes.com/i/data/item7575-2.pdf>; “O hode vypolneniia plana deistvii po formirovaniiu Edinogo iekonomicheskogo prostranstva Respubliki Belarus’, Respubliki Kazahstan i Rossiiskoi Federacii”, Decision (18 October 2011) No. 813, available at <http://www.evrazes.com/i/data/item7576-2.pdf>.
Following two years of negotiations – which included the signing of the treaty creating the Common Economic Space with the goal of using the potential of CUCES – Belarus, the Russian Federation, and Kazakhstan approved their plans on 19 March 2012 by deciding to establish the Eurasian Economic Union (EAU) in 2015. The creation of the EAU means that the participants will adopt a unified codified treaty.
On 1 January 2012, the Eurasian Economic Space (EES) began functioning. Comparing this new organizational approach with others between the former CIS countries, we can say that it shows a totally different phenomenon: the member states have chosen the new form of integration – the creation of a supranational organization. The EES creates a zone which promotes the free movement of goods, services, labor, and capital as well as the harmonization and unification of industrial, financial, tax, and investment policies. The structure of the EES will change on 1 January 2015 when it will be represented by a Parliamentary Assembly, a High Eurasian Council, a Eurasian Economic Commission, and a Eurasian Court. The functions of these institutions will be detailed in the treaty on the creation of the EAU.
While there is agreement on the status of the Court of Justice of EurAsEC, in spite of its dualistic nature in that the Court functions with respect to both EurAsEC and CUCES acts, there is no definite, common position on the Eurasian Court – it will be the successor either of the Court of Justice of EurAsEC or of the Economic Court of the CIS. In Russian legal studies, Neshataeva takes the position – successor of the Court of Justice of EurAsEC (Neshataeva, 2012) and Shinkaretskaya the position – successor of the Economic Court of the CIS (Shinkaretskaya, 2012).
Today, in the words of the General Secretary of the Eurasian Economic Community, EurAsEC is one of the “three pillars”, the other two being the Conference on Interaction and Confidence Building Measures in Asia (CICA) and the Shanghai Cooperation Organization (SCO) (Mansurov, 2012). Because the evaluation of different organizations has taken place in closed relationships, we can see an example analogous to a multi-speed Europe – a multi-speed Eurasia. We cannot agree with an opinion which postulates that re-Sovietization of Eurasia is related to EurAsEC activity. Moreover, we agree with Z. Kembayev that EurAsEC is an organization which “lacks the possibility to issue any kind of decisions” to the member states (Kembayev, 2009). Because of its lack of supranational power we can say that EurAsEC is an international organization more economically oriented than politically oriented. In any event, we can say that the plans to create the EAU are successful, so the evolution of a EurAsEC-based model of Eurasian integration will be an interesting experience with supranational authority established on the basis of the economic interests of Eurasian countries.