Some aspects of the formation of legal framework of the Eurasian Economic Union

The task to examine the major issues of the legal framework formation of the new Union Association of States — the Eurasian Economic Union (EAEU) is put in this article. Today EAEU becomes the most important subject of foreign economic activity in the global economy. Eurasian Union is a full–fledged single market (with certain restrictions) with the generated system of instruments of legal regulation of its activities. Measures of regulating of foreign economic activities of the Union and its individual members form the basis of unified foreign activity. The author reveals some aspects of the theory of Eurasian integration, examines the political and the legal nature of the EAEU. Particular attention is drawn to the formation of the legal base of the EAEU, analyzes the meaning and structure of the legal framework of the EAEU. On the base of analysis of international experience of the name of legal acts inconsistencies and contradictions in the title of the sources of law EAEU according to international law and scientific doctrine revealed by the author. The author notes that internal economic systems of sovereign subjects of international law are to interact with each other are united among themselves in the Common Economic Space, which is the manifestation of the globalization of international economic sphere. The relationship of domestic economies in different parts of the international community, go with different speeds is discussed in this work. If in different states disintegration processes are developing rapidly, then in certain territories the sovereign subjects of international law are taking a strategic course for accelerated domestic economic relations.

In the XXI century world development is determined by globalization and integration. Regional integration — a tool for economic growth, improvement of people's welfare and strengthening the position of integration associations in the world economic system and political stability in the world.

With the formation of the structure of the Eurasian economic integration of the CIS countries real opportunity to create and implement a new model of social development based on the principles of voluntariness, steady progress, economic rationality and democracy appeared. In this regard, would like to say a few words about the theory of Eurasian integration, which should have a decisive influence on the issues of legal regulation of relations connected with the functioning of the future Eurasian Economic Union.

Eurasian theory has its origins in the late XIX – first half of XX century. For the first time on the Eurasian identity and culture N.S. Trubetskoy, P.N. Savitsky, P.P. Suvchinsky, G.V. Florovsky, E. Hara-Davan, N.N. Alekseyev, L.P. Karsavin, G.V. Vernadsky and others wrote. They saw the Russian culture, not just as part of a European, but as a completely independent civilization, equally benefit from the experience of East and West.

Eurasian theorists believed that from this point of view, the Russian people cannot be attributed to the Europeans or Asians that it belongs to a completely original Eurasian ethnic community. Based on this approach, the representatives of classical Eurasianism developed the idea of the Eurasian civilization, which isin contrast to the Romano-Germanic civilization developed on the basis of the priority of the spiritual principle of the individual and society, dialectic and synthesis of opposites of East and West, tradition and innovation, between socialism and capitalism, liberalism and conservatism.

Ultimately Eurasian civilization is considered here as over ethnos able to build a «guarantee state» on the basis of universal labor society. Classical Eurasianism ideas are not widely used due to utopianism of many provisions, the revival of the theory of messianism and opposing Eurasian civilization to the Western world. A more positive conception was offered by the Russian thinker Lev Gumilyov, who went on to all the followers of «the school of Eurasianism» emerged among Russian emigrants of the first half of the twentieth century. He conceptually grounded unity of geographical, cultural and historical links of the peoples of the vast North and Central Eurasia [1].

The President of the Republic of Kazakhstan N.A. Nazarbayev, for the first time in the world came to an understanding of Eurasianism not from the standpoint of cultural and civilization factors, and proposed to build the integration, first of all, on the basis of economic pragmatism. «Economic interests, rather than abstract geopolitical ideas and slogans — the main engine of integration processes», — N. Nazarbayev said in his speech at the M. Lomonosov Moscow State University in 1994, pointing out his approach to the understanding of Eurasianism and proposing the creation of the CIS territory qualitatively new integration association – the Eurasian Union of States [2].

It is clear that interstate integration as a legal phenomenon is different from a simple trade-economic cooperation. Unions (and union associations) are very different from international economic organization; unions provide various forms of economic and political cooperation. In particular, participants of the join transfer union «center» more than traditional international organizations the volume of competences. In the context of association a special legal regime for the movement of goods, services, capital and labor resources creates.

Unions have a particular structure, with the presence of institutions on expression and ensure the interests of the Parties to have the bodies on the formation and maintenance of common interest for the Union, including supranational multifunctional bodies for delegation and subordination of internal relations. The common interstate Union Court for solving the problems associated with the complexities of integration relations is created.

As a result, the parties receive the confluence of national interests into one single and an external device. The union (integration) law possessed a particular autonomous systems constructed. Eurasian Economic Union meets to all of this characteristics and factors, thus becoming not just a regional international organization, and supranational union having shape of Union state. Thus we see the increasing of integration of capacity, the development of reintegration of ex-Soviet republics. Restore the old context, and then it could be a single economic and political space within the EAEU. There is no doubt that economic relations between states within the framework of the Union are governed by international economic law (IEL) — branch of international law, the principles and rules of which govern economic relations between its subjects.

The main pragmatic ideas in the theory of Eurasian integration can be summarized in the following principles:

  •  priority of economic principle over all other principles of integration;
  •  stepping, that is, step by step integration from the weaker to the more intensive form;
  •  willingness of the participating countries to integration, freedom in the choice of forms and rates of this integration, voluntary service, the primacy of the national state sovereignty;
  •  principle of «from small to large», that is, the gradual expansion of the sizes of the integration from the bilateral relations to multilateral treaties of alliance.

Thus, the Eurasian regional integration should ensure the harmonization of approaches in carrying out market reforms, ensuring the national security of the Eurasian countries and their joint inclusion into the global economic system in the conditions of globalization [3; 55].

The President of Kazakhstan was right, pointing out that in the context of global integration, «When there is rapid scientific and technical progress, hard struggle for markets, it is possibly to survive only in the unification». «Look — he writes, — Western European countries with centuries of statehood are going to unite. They perfectly understand that the world market is rigidly polarized: North America, Japan, finally, the Asian «young tigers» Continuing the ideas of the President of Kazakhstan N.A. Nazarbayev, the President of Russian Federation V.V. Putin noted that «the creation of the Eurasian Union, the effective integration — is the way to enable its participants to take their rightful place in the complex world of the XXI century. Only by working together our countries can become one of the leaders of the global growth of civilization andprogress, to achieve success and prosperity» [4]. Therefore, the Eurasian integration should emerge as an economic union of states based on the principles of equality, non-interference in the internal affairs of each other, respect for the sovereignty and inviolability of state borders. At the same time the creation of the Eurasian Union in no shape or form implies transfer of political sovereignty.

This approach is very important because along with additional possibilities of socio-economic development and progress, the expansion of human contacts, the trend towards economic integration and globalization also poses new dangers, especially for economically weaker states, increasing the likelihood of largescale financial and economic crisis. It was repeatedly mentioned in the Russian press.

For example, at the time the United States of America, calling for the globalization, economies integration, applied to Japan's favorite weapon — a call for an open national economy, joining the global market. In the conditions of competition in the formal equality this approach always plays into the hands of the strongest, t.i. the USA. Japan's problem in this case was its entry into the global market of banking services on terms more powerful country that is a sudden subordination of the national banking system totally alien for it conditions.

As a result, national identity, before the former source of strength, has become a source of devastating weakness. Japanese banks traditionally (and the entire economy as a whole) worked with a minimum level of reserves, it is sufficient, taking into account the traditional precision business culture and presence of a safety net from the state. The global market did not take into account all this, and reserves of Japanese banks for it seemed unacceptably low, and the banks themselves, respectively, although the largest, but not reliable.

In order to remedy this, in 1991, Japan signed the international convention on bank reserve provides for the amount of reserves in the 8–12 % (in Japanese banks due to national traditions of doing business due to quality control, minimize inventories and, consequently, bank reserves, they are in the best case reached 1%). Such a sharp increase in reserves has led to a drastic reduction in liquidity, deep destabilization of the financial system and the bankruptcy of many Japanese banks [5; 39].

Taking in to account, that a similar problem in other areas of the economy may be in integrating the post-Soviet countries in the Eurasian Economic Union, and that the effectiveness of economic development of the integrating states depends on the freedom of competition, there should be a series of political, economic and legal mechanisms to ensure freedom of competition with appropriate protection. Firstly, free competition is not possible without adequate protection and support from the state, entering into integration association, so member states of the Eurasian integration association absolute political sovereignty must be guaranteed.

Secondly, the bodies of integration associations should take into account that the principle of equality of economic rights and duties of the Member States of the Union in the actual inequality of their economic potential and economic power might not be favorably reflected in the economic development of the weaker countries. On the contrary, such an equation gives the advantages to strong ones, leaving on the sidelines of smaller participants. This means that it is necessary to introduce in the relations connected with the integration such principles of activity of the Eurasian economic union that will contribute to the growth of the national economies of all countries without any exception, while creating privileges and preferences weaker economically states. To those instead of the principle of formal equality could include the principle of balance the interests of the participating countries, the principle of defense of weak party, the principle of good faith, et al. [6; 70]

All of this should be the basis of the formation of the legal database integration association, as the right of the Eurasian Economic Union should serve as an essential tool to further the integration of construction, the key to its success. Any further integration project under the EAEU should receive quality legal registration, and then put into practice. Exactly in the Eurasian Union, on the example of the European Union, must be the formation of the most advanced legal ideas, trends and traditions, «crystallization» of the world general democratic standards that are designed to serve as a model approach to solving legal problems, not only in the States parties to the Treaty on establishment of the Eurasian Economic Union but in other countries.

In general, the legal framework should consist, firstly, of the treaty rules, secondly, domestic law norms of interstate association, which establishes the rules of the internal organization of the activities of their bodies, and, thirdly, the rules of law that set the Union authorities for their immediate or indirect application by member States regional integration. In this regard, the process of regional integration and the formation of the legal framework of the Eurasian Economic Union requires a clear legal terminology, rethinking almost all general theoretical concepts, including the key constituting the «backbone» of law, such as «sources of law», «types of sources of law», «hierarchy of sources of law», and others.

It is commonly known that in jurisprudence the sources of international law traditionally include international treaties, international customs, general principles of law, judicial decisions and doctrine, as well as the resolutions and decisions of international organizations and conferences. In this connection the question arises: how, for example, the agreement called the «Model Law», which is today one of the sources of law of the Member States of the Customs Union and Common Economic Space in the sphere of competition, with the theory of law and legal practice and law-making?

After all, the term «law» in modern legal science and practice is a legal act, which has the highest legal force, passed in a special manner by the supreme representative body of public authorities or directly by the people and regulating the most important public relations. And in this sense it does not imply its acceptance by an international organization or by the signing of the international agreement by Heads of States as a source of international law. In this case, the contract signed by the Heads of States cannot be called a model law, and the more of a recommendatory nature.

The same situation exists with the name of the Customs Code. The article 1of Agreement on the Customs Code of the Customs Union on November 27, 2009, signed by the heads of the three states — Belarus, Kazakhstan and the Russian Federation, named as the Parties, found that «the Parties shall take the Customs Code of Custom Union, which is given in allonge, which is an integral part of this Treaty».

This terminology (the Code) established in Article 32 of Agreement on EAEU in its legal basis, that is, an international organization rather than public entity: «Unified customs regulation in accordance with the Customs Code of the Eurasian Economic Union and regulating legal relations by customs legal acts and international treaties that make up the Union law, and in accordance with the provisions of this Treaty is carried out in Union» [7].

This approach does not fit in well-established system of law sources and the legal system in the jurisprudence, as the very codification — an activity of state legislative entities on creation a new consolidated systematic regulatory act, by recycling the existing legislation to provide a single, internally consistent regulation of certain spheres of social relations. Of course, such a treaty on customs regulation in the Customs Union, which in revised form would unite all the disparate before, uncoordinated customs and legal norms unofficially could be called the Customs Code of the Customs Union.

This practice, though with reservations, is found in the work of international organizations. For example, a set of conventions and recommendations adopted by the International Labor Organization (ILO), characterized in foreign literature and publications of the ILO as an international labor code. A.B. Kanunnikov, A.A. Pastuhov also argue that the acts of ILO and OUN together constitute the International Labor Code as the legal basis for the publication of the national labor laws. But even in scientific publications many authors who have studied the international legal regulation of certain aspects of employment law, refer to the totality of ILO Conventions and Recommendations as international labor standards or international legal standards of legal regulation of work, and not as an international labor code [8; 137].

It could be argued that this approach is chosen deliberately and that he is legally correct, because it assumes that the member-countries of the Treaty on the Eurasian Economic Union, creating a supra-national bodies, are in the process of formation of new forms of political, territorial and institutional establishment of society, perhaps a confederation or federation, for citizens in the future the terms «law», «code», etc. which will be better understood.

But legally, this approach would be very wrong, because it would directly contradict the Constitution of the member countries of the Union, in particular the Constitution of the Republic of Kazakhstan, which is a sovereign, independent state and is not included in any political union as the subject of federation or confederation. We have already noted that the use of the phrase «supranational authorities» is acceptable with some reservations from political position and from legal position using of such concept is unlikely to be substantiated.

Thus, the existing inconsistency, the discrepancy in the legal approaches to the essence of regional integration, the lack of a systematic approach to terminology, the legal technique of lawmaking will be a serious obstacle to efficient operation of the future Eurasian Economic Union. Therefore, in the future should develop a scientific, doctrinal approaches to the formation and development of the Union legal system on which to prepare a draft Treaty on the Union with the establishment of a hierarchy and types of sources of law, the conditions and the procedure for their adoption and entry into force, excluding those concepts as the law, codes, orders, etc. Emphasis should be placed on the name of the legal regulation of sources adopted in international law.

The next question concerns to the nature and content of the Eurasian Economic Union, which determines the name and status of its bodies. It should be stressed that among the characteristic features of the interstate organizations under the relevant conventions and scientific research in the sphere of international law are the following:

  1. forming such a kind of association only on the basis of bilateral or multilateral international agreement;
  2. only the states can act as their members;
  3. strictly targeted character of education and activities;
  4. presence of each international organization relevant authorities and officials with the powers necessary to manage the organization's activities and decisions of its tasks [9].

Analysis of the data attributes peculiar to each interstate (Intergovernmental) organization, with reference to the European Union shows that it is in this context as an international organization is not exception [10; 151]. In the future Eurasian Economic Union to the same extent as the European Union or even more will have all those features that are common to any supranational organization, and in this sense, the political and legal status of the Eurasian Economic Union can confidently equated to the status of an international organization.

This approach is now enshrined in the signed Agreement, point 2, Article 1of which reads: «The Union is an international organization of regional economic integration, which has an international legal personality» [7].

Professor M.T. Alimbekov correctly noted, signing groundless opinion of some researchers, considering the establishment of the Eurasian Economic Union as a kind of transition from traditional inter-state cooperation to creation of a prototype of a union state — international supranational union, to which states give the part of the sovereign competence. To talk about a new type of organization, the unique structure and order, this is not appropriate under any of the existing political and legal forms, prematurely. And, on the basis of such verified postulates to call authorities of the Eurasian Economic Union as supranational, on the opinion of the author of the above, are not well-founded [11; 46].

In accordance with the Agreement, the Eurasian Economic Union will have as any international organization, the relevant authorities and officials with the powers required managing the activities of the Union and the decisions of its tasks. In conditions, when special signs of «supernationalizm» do not designated, we can talk only about that «supernationalizm» is one of the hallmarks of an international organization, which in turn let suggest about artificiality of «supernationalizm» quazi theory because everything is a «supranational» — at the same time belongs to the international.

In this connection it is appropriate to distinguish between the concept of «supranational functions» and «supra-national bodies». In this case, certain supranational functions transferred by the Member States, will be carried out by bodies of the Union, but this does not mean that carrying out of such functions will automatically lead to the emergence of supra–national bodies, to which the vertical will be subject to the relevant structures of the States Members of Agreement on creation of the Eurasian Economic Union.

In the first case, the emergence of supranational functions associated with the will of the Contracting Parties and involves the establishment and development of international treaty relations. In the second case we are talking about the origin of public power relations, public authorities, which is one of the main features of the state as a political institution.

And the emergence of a new public authority, spreading, in particular, to the territory of the Republic of Kazakhstan, contrary to its Constitution, Article 3 of which states that «the state power in the Republic is unified and executed on the basis of the Constitution and laws in accordance with the principle of the separation of legislative, executive and judicial branches and the interaction between them using the system of checks and balances». «No one may usurp power in the Republic of Kazakhstan. Appropriation of power is punishable by law. The right to speak on behalf of the people and the State belongs to the President and Parliament of the Republic within the limits of its constitutional powers. The government of the Republic and other state bodies act on behalf of the state within the limits of powers delegated to them» [12]. Similar provisions are contained in the Constitution of the Republic of Belarus and the Russian Federation Constitution.

Therefore, from a political point of view possible manipulation of the concept of «a supranational body». While the legal position of such an approach is fundamentally wrong, contrary to the form and content of the interstate organization. In this context, from a political point of view is acceptable to talk about supranational bodies of international organization.

Why this approach is best for the modern period? There are a number of important reasons for this. Firstly, in its favor is the experience of European integration, which has been discussed in previous sections. Secondly, the position, seen in the Eurasian Economic Union special supranational form by analogy with a federal political entity, can slow down the process of further economic integration of the Eurasian Economic Union, since many Russian researchers see in the federation on an example, of course, the Russian state unity of government authorities.

It can be assumed, given the tradition of the Russian approach to federalism, that such an approach to the identification, when permitted, even in theory the idea of federalism and pre-federal form of device of the Eurasian Economic Union, may seriously harm to the development and deepening of economic integration processes on the post–Soviet space. After all, the essence of the Eurasian Economic Union is not in forming the future of the new state union, and for the purposes that are set out in Article 4 of Treaty:

  • Creation of conditions for stable development of the economies of the Member States in order to improve the living standards of their population;
  • Desire to create a common market of goods, services, capital and labor within the Union;
  • Comprehensive modernization, cooperation, and improvement of competitiveness of national economies in the global economy [7].

Consequently, the application by the term «supranational body of the Union», «supernatinalizm» should be deleted in the future not only in documents, but also in official statements concerning the activities of the EAEU, as such an approach may give rise ambiguity in the content, functions and objectives of the Eurasian Economic Union. It is permissible to use only the words «supranational bodies of an international organization».

Today EAEU becomes the most important subject of foreign economic activity in the global economy. Eurasian Union is a full–fledged single market (with certain restrictions) with the generated system of instruments of legal regulation of their activities. Regulatory measures of foreign economic activities of the Union and its individual participants form the basis of a common foreign trade activity. Foreign trade policy of EAEU is part of the law of the Eurasian Economic Union, which arose in connection with the formation and development of post–Soviet integration processes. The law of Union is the result and the instrument of the Eurasian integration.

It follows from the foregoing that all sovereign states are interconnected, together all members of the international community are the players and active participants of the global economy. Self–limitation of the state in the output of the global economy, threatens disintegration, backwardness of the national economy, the destruction of infrastructure and similar dire predictions.

EAEU will be the core of economic integration in the post–Soviet space, defining the ways of its development on the long term. Creation and active work of the Union have a historical significance for the future of its member-states and other post-Soviet countries, which in the prospect will join it. The formation of such powerful regional association — a landmark event as for the Eurasian continent and for the world as whole. EAEU will be a major obstacle for the construction on the planet unipolar world that comes to life a whole new geo-economic reality of the XXI century.

 

References

  1. Nazarbayev, N.A. (2011). Yevraziiskii soiuz: ot idei k istorii budushcheho [Eurasian Union: from the idea to the future history]. izvestia.ru. Retrieved from http://izvestia.ru/news/504908 [in Russian].
  2. Nazarbayev, N.A. (2014). Vystuplenie v Moskovskom hosudarstvennom universitete imeni M. Lomonosova 29 marta 1994 hoda [Speaking at Lomonosov Moscow State University on March 29, 1994]. e–history.kz. Retrieved from http://e– history.kz/ru/publications/view/567 [in Russian].
  3. Bekyashev, K.A., Bekyashev, D.K., & Kashkin, S.Yu. et al. (2015). Mezhdunarodno-pravovye osnovy sozdaniia i funktsionirovaniia Yevraziiskoho ekonomicheskoho soiuza [International legal basics of creation and functioning of Eurasian Economic Union]. Moscow: Prospekt [in Russian].
  4. Putin, V.V. (2011) Yevraziiski ekonomicheskii soiuz mozhet byt sozdan na rubezhe 2015 hoda [Eurasian Economic Union can be created at the cusp of 2015]. Vystuplenie Putina 19 oktiabria 2011 hoda v Sankt-Peterburhe na press-konferentsii po okonchanii zasedanii hlav pravitelstv stran YevrAzES i Tamozhennoho soiuza — Speaking by Vladimir Putin October 19, 2011 in St. Petersburg at a press conference after the meeting of governments heads of EurAsEC countries and the Customs Union. map.by. Retrieved from http://map.by/news/Ekonomika/news_ic_news_113_378829.html [in Russian].
  5. Arbuzov, A.V. (2005). Yevropeiskii soiuz: mezhdunarodnaia orhanizatsiia ili konfederatsiia? [The European Union: an international organization or a confederation?]. Pravovedenie — Jurisprudence, 4, 38–40 [in Russian].
  6. Alimbekov, M.T. (2012). Sud YevrAzES kak platforma vsestoronnei intehratsii [EurAsEC Court as a comprehensive integration platform]. Hrazhdanskoe zakonodatelstvo: stati, kommentarii, praktika — Civil legislation: articles, comments, practice. Almaty: Raritet [in Russian].
  7. Dohovor o Yevraziiskom ekonomicheskom soiuze (zakliuchen v Astane 29.05.2014.) [Treaty on the Eurasian Economic Union (signed in Astana 05.29.2014)]. (n.d.) online.zakon.kz Retrieved from http://online.zakon.kz/Document/ ?doc_id=31565247#pos=1;–117 [in Russian].
  8. Neverova, A.S. (2010). K voprosu o terminolohicheskoi sushchnosti poniatiia «mezhdunarodnyi trudovoi kodeks» [To the question of terminological essence of the concept of «international labor code»]. Sovremennye problemy nauki i obrazovaniia — Modern problems of science and education, 1, 136–138 [in Russian].
  9. Shibayeva, E.A., & Potochnyi, M.A. (1980). Pravovye voprosy struktury i deiatelnosti mezhdunarodnykh orhanizatsii [Legal questions of the structure and activities of international organizations]. Moscow: MGU [in Russian].
  10. Artamonova, O.F. (2002). Mezhdunarodnaia pravosubektnost Yevropeiskoho soiuza [International legal personality of the European Union]. Zhurnal rossiiskoho prava — Magazine of the Russian law, 8, 150–151 [in Russian].
  11. Alimbekov, M.T. (2013). Nekotorye aspekty politiko-pravovoi identifikatsii budushcheho Yevraziiskoho ekonomicheskoho soiuza [Some aspects of the political and legal identification of the future Eurasian economic union]. Pravo i hosudarstvo — Law and state, 1, 45–49 [in Russian].
  12. Konstitutsiia Respubliki Kazakhstan [Constitution of the Republic of Kazakhstan]. (n.d.) online.zakon.kz. Retrieved from http://online.zakon.kz/Document/?doc_id=1005029 [in Russian].
Year: 2018
City: Karaganda
Category: Law