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
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” . 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?
International organizations, in its general
and institutional functions of modern integration processes development are
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” . 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 .
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
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” .
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) .
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
. 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 . 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”.
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 .
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 .
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
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
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
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'
- Provision of mutually beneficial
cooperation, equality and taking into account the national interests of the
- 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
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
- 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
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,
- 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
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 .
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 .
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
. 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.
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Table of contents: The Kazakh-American Free University Academic Journal №8 - 2016