Legal status of Eurasian Economic Union

Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016

Author: Menzyuk Galina, Kazakh-American Free University, Kazakhstan

Within the confirmed intention, dated by March 19, 2012, of the heads of the three states (Belarus, Kazakhstan, Russian Federation) to create the Eurasian Economic Union by 2015, and, even more, since the signing of the contract issued on May 29, 2014 on the establishment of the Eurasian Economic Union (hereinafter EAEU), one of the most actively discussed topics is the issue of the legal status and nature of the integration association (“international organization” or “non-international organization”, “classical” international intergovernmental organization (IIGO) or “special organization”, “corporate” from the international law viewpoint, or “non-corporate” etc.).

L. I. Volova notes “as for the newly created integration association – the Eurasian Economic Union, it is beneficial not only to organize all the already- developed international legal norms governing the integration cooperation of member-states, but also to take full advantage of existing integration organizations” [1]. Besides, L. P. Anufriyeva notes that a number of substantive issues in the legal aspect in the theory and practice of science integration has not yet fixed. Where should we include the rules governing the state-to-state relations of the integration type? Does the international law apply to the integration associations? Is not there a third system of law, i. e. “integration law”, which cannot be referred to neither international nor domestic law, while strengthening the relations within such organization?, What place will it possess in the global legal system? Finally, is the offer of so-called “integration law” justified as a scientific concept? [2].

International organizations, in its general and institutional functions of modern integration processes development are understudied.

Some authors, quite well-known in the research of international law (L.I. Volova, A.Y. Kapustin, A. A. Moiseyev, T. N. Neshatayeva, A. N. Talalayev, V. M. Shumilov et al), believe that an international integration association, for example EU or EAEU, is either an international organization of a special type or an international organization with supranational characteristics. As it is noted by Professor T. N. Neshatayeva “expansion of the economic relations globalization led to the emergence of a new type of international organizations - not intergovernmental, but supranational with global expertise and functions previously considered as the part of the sovereign competence of national organizations” [3]. L. I. Volova states that integration development within the EAEU follows the supranational way, because the certain institutions of the Union are empowered with supranational authority. For example, the Eurasian Economic Commission adopts binding decisions for member-states and their natural and legal persons [4].

Today among the representatives of law and political science, almost no one denies that international organizations include interstate associations group which is more integrated, more advanced legal institution.

Indeed, there is a group of international organizations which is considered to be more integrated than others. First of all, it differs from its (generic) category by specific character. "Integration organization" is the specific concept of international intergovernmental organizations. However, as it is noted by I. G. Sultanov, international integration associations in the legal classification could be rightfully called “international intergovernmental integration organizations” instead of being emphasized by many authors as a group of so-called supranational institutions or organizations with supranational characteristics. They did not go beyond and belong to a common generic term of “international organizations” [5].

Some researchers believe that within the gradual transition to the higher stages of integration the value of supranational institutions should increase, their competence should expand, the extent of authority should rise. Such opinion, that EAEU refers to the type of supranational organizations, is being criticized by another group of researchers. Thus, Professor K. A. Bekyashev says “the Union, being an interstate organization, does not possess the qualities of supranationality, because it is not allowed neither to be superior its founders or to command them. Therefore, Art. 38 of the Treaty rightly points out that the Union does not own any supranational competence in the field of trade of services (these are international legal relations) [6].

In conditions when there are no specially-designated features of “supranationality”, we can only view “supranationality” as one of the features of international organization, which therefore implies artificiality of “supranationalism” quasi theory, since all that is “supranational” is, at the same time, international.

Professor Y. B. Abdrassulov notes that in the future the use of the term “supranational body(ies) of the Union”, “supranationality” should be deleted not only in the documents but also in the official statements concerning the activities of EAEU, because such a way may lead to ambiguity of the content, functions and goals of the Eurasian Economic Union. He also convincingly argues in favour of the possibility to use the term "supranational body" from a political point of view. While from the legal viewpoint such an approach is fundamentally wrong, opposite to the form and content of the interstate organization. In this context, it is politically acceptable to talk about supranational bodies of international organizations [7]. R.V. Shmakov emphasizes that "supranationality" is a specific quality that can be applied to international organizations, but not to the law of these organizations [8]. The similar definition can be found in the works of M.M. Biryukov, who believed that the supranationality is “a set of structural, functional and procedural characteristics of an international organization, determining the priority of its competence in specific areas in relation to the relevant competences of member-states. The prime opportunity is an international body authority of making decision obligatory for all member-states”[8]. Professor M. T. Alimbekov notes, if the feature of “a new type organization” is to transfer the state sovereign powers, there is nothing new we can find in such association that distinguishes it from intergovernmental organizations, as in all intergovernmental organizations, the state shares its part of competence with the interstate organization. The Eurasian Economic Union, to the same or even much more extent as the European Union, possesses all those features that are common to any interstate organization, and in this sense, the political and legal status of the Eurasian Economic Union can be confidently equated to the status of an international organization [9].

Therefore, the talks about a new type organization, the unique structure and order, that do not correspond with any of the existing political and legal forms, are premature. According to I. R. Sultanov, our attention is also attracted by a certain light-hearted and inconsistent attitude that some researchers express while presenting new statutory and politological concepts. One of them, for example, is the term ”supranationality” or “supranational organizations”. The similar definitions are “international associations with federalism elements”, “integration communities”, “organization of public international law with some constitutional elements”, etc. We agree with the fact that some of them, due to the wide and long-term use, have become quite proverbial. But the content of these terms is admitted to be legally incomplete and, as a consequence, impartial [10].

Thus, the Eurasian Economic Union is recognized as an international organization, established and operating in accordance with the principles and norms of international law.

The science of international law has developed the criteria for an intergovernmental organization, but the scientists still have different opinions on this issue. The range of international intergovernmental organization criteria varies from four to ten. Due to the very fact and taking into account the practices of the EAEU, we should define the main features of the Union as an international intergovernmental organization.

1. The institution approved by the international treaty. The constitutional document of organization must meet generally accepted principles and norms of international law and, above all, the principles of juscogens (i.e. the supreme imperative principles) assigned in the UN Charter.

According to Art. 53 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986, an imperative norm of general international law is a norm accepted and recognized by the international community of the state as a norm without any further deviations, and which can be modified only by a subsequent norm of general international law of the same character.

As a rule, international organizations are established by international agreement (treaty, charter, agreement, treatise, protocol, and so on). The object of this contract is the behavior of the subjects (the contract parties) and the international organization itself. The parties of the constituent act are sovereign states. However, in recent years, the authorized members of international organizations are intergovernmental organizations. For example, the EU is an authoritative member of multiple regional organizations.

According to par. 2 of Art. 1 of the Treaty on the Eurasian Economic Union dated May 29, 2014, the Eurasian Economic Union is an international organization of regional economic integration, which has international legal standing.

It is well known that “international intergovernmental organization is a union of states, established on the basis of an international treaty in order to achieve common goals, and having permanent bodies acting in the common interest of member-states, with respect to their sovereignty...”

Consequently, the international regional organization is an organization with a set of basic features of an international intergovernmental organization, the essential feature of which is its membership of states from a particular geographic area.

Constitutive Act of the EAEU is Treaty dated May 29, 2014 and consummated on January 1, 2015. It meets the requirements of the Vienna Convention on the Law of International Treaties of 1969. The term "treaty" means an international agreement concluded in writing between the states and governed by international law, regardless of whether such an agreement consists of a single document, two or more related documents and regardless of its particular content.

Constitutive Act of the EAEU corresponds to this definition. As a codifying resource the Treaty of the EAEU Treaty is of an impressive volume and complex structure: it consists of a preamble, the basic provisions (118 Articles, grouped into four parts and XXVIII sections) and appendices (total 33).

Secondly, the goals and principles that underpin the formation and functioning of the Eurasian Economic Union, are assigned in Articles 3 and 4 of the aforementioned Treaty.

Among the main principles of the EAEU functioning the following ones are identified:

- Respect for the universally recognized principles of international law, including the principles of sovereign equality of member-states and their territorial integrity;

- Respect for the features of member-states' political system;

- Provision of mutually beneficial cooperation, equality and taking into account the national interests of the Parties;

- Adherence to the principles of market economy and fair competition;

- Functioning of the Customs Union without exclusions and restrictions after the transitional periods expiration date.

The main goals of the EAEU are:

- Creation of conditions for stable development of member-states' economies with an aim to improve the living standards of their populations;

- Intention to create a common market for goods, services, capital and labor within the Union policy;

- All-round modernization, co-operation and increase of competitiveness of national economies in the terms of global economy.

Thus, the goals and principles of the EAEU determine the legitimacy of its creation and the economic nature of its organization.

3. Membership in the organization of the state as a subject of international law is one of the main features of international organization. In accordance with Art. 2 of the EAEU Treaty “ ‘member-states’ – are the states that are members of the Union and the Parties of the EAEU Treaty”. The founders and original member-states of EAEU concluded its constituent treaty on May 29, 2014. They are three states, the members of the former EuroAsian Economic Community. At the previous stages of the integration development they formed the Customs Union and laid the foundations for the Common Economic Space policy:

- The Republic of Belarus;

- The Republic of Kazakhstan;

- Russian Federation.

In EAEU Treaty there is a special Art. 108, which deals with the issues of the Union entry and settles the following statement: “The Union is open for the entry of any state that shares its aims and principles, on the terms agreed by member-states”.

Even before EAEU Treaty entered into force, the above-mentioned states had concluded the treaties of accession to EAEU of two more member-states, one of which had been a member of EurAsEC (Kyrgyzstan), and the other had not been (Armenia):

- The Republic of Armenia became a member-state on the basis of EAEU Treaty on the accession of the Republic of Armenia to the Treaty of the Eurasian Economic Union, signed on October 10, 2014. It entered into force on the day following the entry into force of the EAEU constituent treaty on January 2, 2015;

- The Kyrgyz Republic became a member-state on the basis of EAEU Treaty on the accession of the Kyrgyz Republic to the Treaty of the Eurasian Economic Union, signed on December 23, 2014 and it came into force on August 12, 2015.

Regardless of the entry time, the size of territory, population, and other factors, EAEU member-states are equal (Art. 3 of EAEU Treaty “Basic Principles of the Union Functioning”). Their citizens are equally represented in the governing bodies of EAEU and hold equal authority in institutional chairmanship.

EAEU Treaty also provides the right of its members to leave the Union. Article 118 of the Treaty specifies all procedural issues related to the withdrawal, which can be practically implemented within 12 months and only if all financial and liability questions are settled.

In addition, EAEU Treaty guarantees an observer status for any state of the Union (Art. 109), which any state has the right to apply for, without any conditions or restrictions, but after the state receives this status it must refrain from any actions that could prejudice the interests of the Union and the interests of the member-states, as well as of the object and goals of EAEU Treaty.

So, the contract defines three terms related to the forms of participation in the international intergovernmental organization: the Parties, the member-states and the observer-states.

States without any membership in the Union are identified in EAEU Treaty as third states / third countries or, in a broader context, as third parties. The last term also includes other international organizations and international integration associations (including those with individual states, members of EAEU, such as the Union state of Russia and Belarus, the CIS and the United Nations Organization).

In all cases, the attribute "third" refers not to the level of economic development, but to the fact that the states, organizations and associations are not influenced by EAEU integration and legal mechanisms while being external to them.

EAEU is an international intergovernmental organization of integrative nature that is open to the entry of new member-states. Hypothetically speaking, EAEU membership is open to any country sharing its goals and principles (para. 1, Art. 108 of EAEU Treaty "Joining the Union").

To join EAEU a state concerned must first obtain a candidate status. The decision to grant this status is taken at the request (application) of the state concerned by the Supreme Eurasian Economic Council - the supreme body of EAEU at the level of its member-states' chairmen.

According to the decision of the Supreme Eurasian Economic Council, they form a working group of representatives from the candidate-states, member-states and EAEU bodies. The working group:

- examines the degree of candidate-states readiness to assume the obligations determined the EAEU law;

- designs a draft project of Action program on the accession of candidate-states to EAEU;

- designs a draft treaty on the accession of the state to the EAEU.

The Supreme Eurasian Economic Council makes the decision to sign the Union entry treaty (the merger agreement) with the candidate-state relying on the conclusion of the working group that the candidate-state fully complied with the obligations arising from the EAEU rights. This treaty enters into force after its ratification by the parties (all member-states and candidate-states).

4. Availability of an appropriate organizational structure. This feature is one of the most important qualities of international organizations in general. It confirms the permanent nature of the organization and, thus, sets it apart from many other forms of international cooperation.

EAEU is originated due to an impressive institutional foundation of EAEU management institutions' business.

In accordance with Art. 8 of the Treaty, the Union governing bodies are:

- Political body - the Supreme Eurasian Economic Council (SEEC) and the Eurasian Intergovernmental Council (EIC);

- Regulatory body - the Eurasian Economic Commission (the Commission, EEC);

- Judicial body - the Court of the Eurasian Economic Union (the Court of the Union).

The chairmanship of governing bodies (except the EAEU Court) is performed on a rotating basis in the order of Russian alphabet by one member-state within one calendar year, without any exception of prolongation. For example, if in the current year the governing body is represented by Armenia, then the next year, these functions will be transferred to the representative of Belarus, followed by Kazakhstan, Kyrgyzstan, Russia, further again Armenia, and so on.

According to Art. 10 of the Treaty, Supreme Eurasian Economic Council (Supreme Council, SEEC) is the supreme body of the EAEU within the heads of member-states, which makes the major strategic decisions on the basis of unanimity (consensus), including the expression of consent to the necessity of international treaties confirmed by the Union. In accordance with Art. 11 of the Treaty, the Supreme Council meetings are held not less than once a year. An extraordinary session of the Supreme council may be convened to solve the burning issues of the Union on the initiative of any member-state or the Chairman of the Supreme Council. The meetings of the Supreme Council are held under the control of Supreme Council chairman, who runs the sessions of the Supreme Council; organizes the work of the Supreme Council; provides overall management, preparation of issues submitted to the Supreme Council.

According to Art. 12 of the Treaty Supreme Council considers the fundamental questions related to the Union activities; determines the strategy, direction and development prospects of integration and makes decisions aimed at implementing the goals of the Union. The Supreme Council exercises the powers, which are 22 in total, listed in Para. 2, Art. 12 of the Treaty.

Certain powers of the Supreme Council, in particular, are the formation of other governing bodies of the EAEU (Eurasian Economic Commission and the EAEU Court), the approval of the EAEU budget, general management of EAEU international activities, including decisions on drawing EAEU international treaties with third parties, the approval of the EAEU symbols and so on.

Supreme Council has the right to give instructions to other EAEU bodies (except the Court), as the highest body, considers the issues on which representatives of member-states in other bodies of EAEU have not reached any consensus, that is to act de facto as the supreme political arbiter in EAEU. The Supreme Council does not possess any permanent location. Its meetings can be held on the territory of any state - a member of EAEU. Location and time of the next meeting of the Supreme Council are determined at the previous session of the Supreme Council.

Without reference to the meeting format only its members - the heads of member-states of the EAEU hold the voting right in the Supreme Council. As a general rule, decisions and orders of the Supreme Council are taken by consensus i.e. with unanimous agreement.

Eurasian Intergovernmental Council (Intergovernmental Council, EIC) represented by the government heads of the member-states, which makes its decisions on the basis of consensus. As well as the Supreme Council, the Intergovernmental Council functions in the manner specified by the EAEU Treaty (Art. 15 "Intergovernmental Council Proceedings") supplemented and refined by the Intergovernmental Council (Action № 89 of November 21, 2014 "On the Procedure for Organizing the Meetings of the Eurasian Intergovernmental Council"). Meetings are held as necessary, but, at least, two times a year. To resolve the burning issues of the Union on the initiative of any of the member- states or the Chairman of the Intergovernmental Council, they may convene an extraordinary session of the Intergovernmental Council. Meetings of the Intergovernmental Council are held under control of Intergovernmental Council Chairman. His powers are defined by Art. 15 of the Treaty. The powers of the Intergovernmental Council are set forth in Art. 16 of the Treaty. The decisions and orders are taken by consensus (Art. 17). As the second most important body of the political leadership of the EAEU, the Intergovernmental Council runs two main types of authority (Art. 16 of the Treaty on the EAEU, "the Intergovernmental Council Powers"):

- preparation of questions to be approved by the Supreme Council (for example, the draft budget approved by the EAEU or suggestion for candidates' appointment to the Eurasian Economic Commission); Among all - political control over the activities of the Eurasian Economic Commission as the governing body of the EAEU (in particular, cancellation, modification or suspension of the Commission decisions, consideration of the issues on which the representatives of the member-states of the Commission could not reach a consensus, Commission empowerment).

As well as the Supreme Council, Intergovernmental Council does not possess any permanent location and holds meetings in the territory of different member-states.

Eurasian Economic Commission (the Commission, EEC) is a single permanent regulatory body of the EAEU. Eurasian Economic Commission, established in accordance with the Treaty on the Eurasian Economic Commission dated November 18, 2011, carries out its policy in accordance with the Treaty. The Commission's legal status is regulated by the Statement of the Eurasian Economic Commission, contained in Annex № 1 to the Treaty of the EAEC Treaty. The questions of the current functioning of the Commission are managed by Operating procedure approved by the Supreme Council (Action № 98 dated December 23, 2014 "On Operating Procedure of the Eurasian Economic Commission"). EEC has two levels of government and consists of EEC Council and EEC Panel. Commission Council is responsible for the general regulation of integration processes in the Union, as well as the overall management of the Commission. The Board committee consists of one representative from each member-state, who is the deputy head of the government possessing the necessary powers in accordance with the state laws. The Commission Panel is an executive body of the Commission. It consists of Panel members, one of whom is the Chairman of the Commission Panel.

Commission Panel consists of representatives of the member-states on the basis of equity principle of member-states representation with 1, 2, 3 representatives from each member-state. On February 1, 2016, the second cast of the EEC Panel began to work, and every state of the Union is represented not by three but two ministers of the country.

Unlike the Council members and the members of the abovementioned political body of the EAEU, Panel members are working on a permanent basis and act as international officials - Eurasian Ministers. The seat of the Union Commission is Moscow, Russian Federation.

The Court of the Eurasian Economic Union is a permanent judicial body of the Union. According to Annex № 2 to the Treaty on the EAEU, status, cast, competence, order of formation and functioning of the Union Court is determined by the Court Status of the Eurasian Economic Union. The EAEU Court rules of practice are determined by the Regulations, approved by the Supreme Council (Action № 101 of December 23, 2014 "On Approval of the Court Regulations of the Eurasian Economic Union"). The seat of the Union Court is Minsk, Republic of Belarus. The cast of the Court shall consist of two judges from each member-state. The judge’s office term is 9 years.

Thus, EAEU runs the defined, established system of its bodies and management.

5. Fifthly, due to the fact that the possession of international legal personality is one of the main features of international organization, EAEU holds a complete legal authority of such personality. It is an international organization possessing freedom, distinct from the freedoms of the member-states. This feature means that, within its competence, any organization is free to choose the means and methods for implementation of the rights and duties conferred by member-states. The latter do not consider it vital - how the organization implements its mandated tasks or statutory obligations as a whole. It is the organization itself, as a subject of international law, has the right to choose the most rational means and methods of operation. In this case, member-states control the very legitimacy of organization implementing its autonomous freedom.

According to Art. 116 of the EAEU Treaty, the Union Treaty, in accordance with Art. 102 of the UNO Charter, is registered in the United Nations Secretariat.

According to the internationally approved classifications of international intergovernmental organizations, the Eurasian Economic Union is:

- an international organization due to the level of the legal system;

- an intergovernmental organization due to the legal nature;

- a regional organization due to the number of participants;

- an economic organization due to the business field;

- an organization of special competence due to business directions;

- an open organization due to the entry order [11].

The analysis of EAEU constituent documents let us suggest that the Union holds all the features of an international intergovernmental organization, which have been repeatedly reviewed and commented on by a number of researchers.

Thus, our analysis of the concepts practically leads us to the question raised by K.A. Bekyashev - whether EAEU is an international organization or an international integration association (a supranational international organization, the author considers the concept identical, on the basis of the analysis). He formulates the answer to this question, citing par. 2, Art. 1 of the Treaty of May 29,2014: The Union is an international organization of regional economic integration - focusing researchers and scientists' attention: integration instead of international integration union, as most of them point out [6].

Thus, as L.P. Anufriyeva noted, "EAEU is a subject of international law, i.e. an international legal personality organization that does not possess so-called "supranational" or "suprastate" nature and "the right of Eurasian integration", mediated by international treaties and/or by the acts of international organization bodies; it is a natural part of international law [2]. The views are based on the positive law, the very Article 1 of the Treaty on the Eurasian Economic Union, which directly stipulates that "The Union is an international organization of regional economic integration, which has an international legal personality".

In the EAEU Treaty does not define the issue of the supra-national bodies, as well as the very notion of "supranationality", which cannot affect the legal status of the Eurasian Economic Union.

REFERENCES

1. Volova L.I. Vozrastaniye roli regionalnoy ekonomicheskoy integratsii v sovre-mennykh usloviyakh [Increasing Role of Regional Economic Integration in Modern Terms] // Eurasian Juridical Journal, 2014.- №2.

2. Anufriyeva L.P. Pravo yevraziyskoy in-tegratsii v deystvii [Eurasian Integration Law in Action] // Eurasian Juridical Journal, 2016.- №5.

3. Neshatayeva T.N. K voprosu o sozdanii Yevraziyskogo soyuza: integratsiya i nadnatsionalizm [On the Issue of Eurasian Union Creation: Integration and Supranational] // International justice, 2014.- №2. - 57-70 p.

4. Volova L.I. Mezhdunaradnoye pravo i rossiyskaya nauka mezhdunarodnogo prava v usloviyakh globalnykh vyzovov [International Law and Russian Science of International Law in the Terms of Global Challenges] // Eurasian Juridical Journal, 2016.- №12.

5. Sultanov I.R. K voprosu ob institutsionalno-pravovoy osnove mezhdunarodnykh integratsionnykh protsessov [On the Issue of Institutional Legal Basis of International Integration Processes] // Discussion, 2010.- №9.- 51-56 p.

6. Bekyashev K.A. EAEU: mezhdunarodnaya (mezhgossudarstvennaya) organizatsiya ili mezhdunarodnoye (mezhgossudarstvennoye) integratsionnoye obye-dineniye [EAEU: International (Interstate) Organization or International (Interstate) Integration Association?] // Eurasian Juridical Journal, 2014. - №11.

7. Abdrassulov Y.B. K voprosu o formirovanii pravovoy bazy Yevraziyskogo ekonomicheskogo soyuza i nadnatsionalnom kharaktere yego organov [On the Issue of Legal Basis Formation of Eurasian Economic Union and Supranational Nature of Its Bodies] retrieved from www.zakon.kz on Jan. 2017

8. Shmakov R.V. K voprosu o "nadnatsi-onalnosti" prava Yevraziyskogo ekono-micheskogo soyuza [On the Issue of "Supranationality" of Eurasian Economic Union Law] // Eurasian Juridical Journal, 2015. - №10.

9. Alimbekov M.T. Nekotoriye aspekty politiko-pravovoy identifikatsii buduch-shego Yevraziyskogo ekonomicheskogo soyuza [Several aspects of Political and Legal Identification of Eurasian Economic Union Future] // Law and State, 2013. - № 1. - 45 p.

10. Sultanov I.R. K voprosu o tipologii mezhdunarodnykh organizatsiy [On the Issue of International Organizations Typology] // Modern Law, 2009.- №12. - 142-147p.

11. Mulyukova V.A. Yevraziyskiy ekono-micheskiy soyuz kak mezhdunarodnaya regionalnaya organizatsiya [Eurasian Economic Union as an International Regional Organization] // Eurasian Juridical Journal, 2014.- №12.



Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016

  
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