The place of the international court in the development of the
legal framework of the Eurasian Economic Union:
Is EAEU Court restricted to make a Law?
Raushan Mukhametzhanova Student #12616486 Raushan.Mukhametzhanova@ student.uva.nl Supervisor: Dr. León Castellanos-Jankiewicz
Mastertrack: International and European Law: Public International Law
Date of submission: August 12, 2020 Word count: 13222
2 Abstract
The phenomena of Judicial Lawmaking refers to the contribution of International Courts to the development of International Law by means of rendering Judgements on particular disputes and delivering advisory opinions. The decisions of International Courts not only solves the particular dispute and has a binding effect on its particular participants, but also goes beyond the dispute when filling lacuna in International Law and establishes rules for other actors.
The Court of Eurasian Economic Union is one of the International Courts that is established to solve the disputes within a regional integration organization. The member-states explicitly restricted the mandate of this Court to “create or amend” the law of the Eurasian Economic Union (EAEU) and the national law of member-states.
This paper analyses the EAEU Law, including the legal status of the EAEU Court and the impact of its judgements and advisory opinions in the development of EAEU Law in comparison with the predecessor courts. It claims that despite its restrictions, the Court of Eurasian Economic Union still makes the law through judgements and advisory opinions and contributes not only to the development of the law of Eurasia Economic Union, but also to the national law of its member-states. The EAEU Court judgements not only solve the disputes between the parties but also develop the principles of EAEU Law, such as principles direct applicability and supremacy.
3
Chapter 1: INTRODUCTION ... 4
Chapter 2: JUDICIAL LAWMAKING ... 6
Chapter 3: EAEU LAW ... 11
3.1. The legal system within Eurasian integration ... 11
3.2. Sources of EAEU law ... 13
Chapter 4: EAEU COURT WITHIN EAEU LEGAL FRAMEWORK ... 15
4.1. The legal status and the competence of the EAEU Court ... 15
4.2. The EAEU Court and its predecessors... 16
4.2.1. Composition of the EAEU Court and the status of the Judges ... 18
4.2.2. Jurisdiction of the EAEU Court ... 20
4.2.2.1. Disputes settlement ... 20
4.2.2.2. Advisory Opinions and Prejudicial Conclusions ... 21
4.2.3. Behind the restrictions of EAEU Court “to create or amend the law” ... 22
Chapter 5: EAEU COURT CONTRIBUTION TO THE EAEU LAW AND NATIONAL LAW OF EAEU MEMBER-STATES ... 25
5.1. Binding Decisions ... 25
5.2. Advisory Opinions ... 29
4
Chapter 1: INTRODUCTION
The role of international courts in the development of International law is widely recognized by scholars. The decisions and advisory opinions of International courts are cited and form the groundwork for further development in the application of the law on the international plane and provide guidance for states.
The courts of regional economic unions take their place in the formation of the law of their regional integration structures. For instance, scholars argue that the European Court of Justice "demonstrated its willingness and ability to advance integration by activist interpretations of the Treaty".1
The Eurasian Economic Union (hereinafter “EAEU” or “the Union”) is one of the regional integration projects and has its court that was established with the objective "to ensure ... uniform application by the Member States and bodies of the Union of the Treaty, international treaties within the Union, international treaties of the Union with a third party and decisions of the bodies of the Union".2
The EAEU was initiated by the first President of Kazakhstan N. Nazarbayev as a regional integration organization with purely economic purposes. However, its expansion raises concerns over its genuine goals and objectives.3 These concerns lead to publications with the opinion that the EAEU is a part of the Kremlin’s project on the reincarnation of the Soviet Union and a return of dominance over former Soviet space rather than regional cooperation for the mutual benefit of participants.4
Despite the principles to “provide the mutually beneficial cooperation, equality and the national interests of the Parties” and “ensure the principles of market economy and fair competition” declared in the TEAEU, entrepreneurs of member-states accuse Russia on ignoring the EAEU principles and creation of trade barriers for movement within the Russian market of
1 Fabio Wasserfallen (2010) The judiciary as a legislator? How the European Court of Justice shapes policy-making in the European Union, Journal of European Public Policy, 17:8, 1128-1146, DOI: 10.1080/13501763.2010.513559. 2 Statute of the Court of Eurasiaon Economic Union annex 2 to the Agreement on Eurasian Economic Union (hereinafter EAEU Court Statute) (translation by the author) at < http://courteurasian.org/doc-14023> Chapter I (2). 3 Eurasian Economic Union — regional center of investment and high technology attraction. At <
http://government.kz/en/news/reviews/eurasian-economic-union-regional-center-of-investment-and-high-technology-attraction >.
4 Emil Avdaliani. The Dynamic of the Eurasian Economic Union for 2020 at < http://georgiatoday.ge/news/19133/The-Dynamic-of-the-Eurasian-Economic-Union-for-2020>; See also R. Falyakhov, A. Bratersky Konets Yevraziyskogo soyuza [The end of the Eurasian Union] At < https://www.gazeta.ru/business/2017/03/29/ 10601321.shtml>; A. Gurkov. YEAES: integratsionnyy proyekt dlya velikoy derzhavy? [EAEU: an integration project for a great power?] At < https://www.dw.com/ru/ >; Oskanian, Kevork. "FPC Briefing: Putin’s Eurasian Union–from Pre-Electoral Sideshow to Quest for Empire." The Foreign Policy Centre, July (2013).
5 goods originated from other EAEU member-states.5 This critique was supported on the highest level by the President of Kazakhstan K. Tokayev who blocked the adoption of the strategy on the development of EAEU by 2025 during the last online-meeting of the Supreme Eurasian Economic Council.6
The limitation of the enforcement measures within the EAEU and ability of the EAEU Court to “amend and/or abrogate the existing rules of the law of the [Eurasian Economic] Union, of the legislation of the Member States” and particularly to “create new ones” endorsed by the founders of EAEU may reflect their fear and distrust of the powers of supranational bodies within the EAEU.7
Scholars also argue that one of the reasons behind the restrictions on law-making rights was the experience of the Court of the Eurasian Economic Community (hereinafter “EEC Court”) that was the de facto predecessor of EAEU Court. As will be discussed in Chapter 4.2.3. EEC Court indicated willingness and readiness to actively participate in the creation of the EEC law and even claimed to have a supranational institution in which decisions shall follow the national courts of EEC member-states.
Is it true that the explicit limitation of EAEU Court powers restricts it from contributing to the development of the EAEU law? This thesis aims to answer the question to what extent the EAEU member-states can limit the ability of the EAEU Court to contribute to the development of the legal regime of the EAEU. In other words: is the EAEU Court still a law-maker?
This paper argues that despite the explicit limitation in the Statute of the EAEU Court to create or amend the law, it still contributes to the development of the EAEU legal regime and to the national law of the member-states rendering judgments on particular disputes and delivering advisory opinions on the interpretation of international treaties. The EAEU Court judgements not only solve the disputes between the parties but also develop the principles of EAEU Law, such as direct applicability and supremacy of EAEU Law.8
To answer the research question, chapter 2 will discuss the theory of Judicial Lawmaking in international law exemplified by the practice of the International Court of Justice through judgments and advisory opinions. Then chapter 3 will turn into the discussions of the EAEU Law and its sources. Chapter 4 is dedicated to the analyses of the legal status of the EAEU Court, its
5 Agreement on Eurasian Economic Union 29.05.2014 (hereinafter “TEAEU”) at <
http://docs.cntd.ru/document/420205962 > art 3; See also Alibi Saruar. Russia ignores EAEU rules – NCE. At <https://lsm.kz/rossiya-ne-zhelaet-ustranyat-torgovye-bar-ery-kazahstanu-npp>.
6 Tamara Vaal. Tokayev raskritikoval strategiyu razvitiya yevraziyskoy ekonomicheskoy integratsii do 2025 goda [Tokayev criticized the strategy for the development of Eurasian economic integration until 2025] at < https://vlast.kz/novosti/39666-tokaev-raskritikoval-strategiu-razvitia-evrazijskoj-ekonomiceskoj-integracii-do-2025-goda.html> (In Russian).
7 EAEU Court Statute Chapter VII (102). 8 See discussions in Chapter 5.1.
6 competence, and comparison with the predecessors – the judicial bodies of the Commonwealth of the Independent States and Eurasian Economic Community, that were other less successful integration projects on the area of the post-Soviet States. Finally, Chapter 5 of this paper discusses the contribution of the EAEU Court to the legislation of the EAEU and national law of its member-states by means of binding decisions on particular cases and advisory opinions.
Taken together, these chapters will show that the EAEU Court’s lawmaking power may not be limited by member-states as the effect of decisions of the EAEU Court on disputes between the parties goes beyond that particular case and the interpretation of the gaps in international treaties in advisory opinions have a law-making effect.
Chapter 2: JUDICIAL LAWMAKING
This Chapter discusses the concept of Judicial Lawmaking according to which the International Court not only applies the law particular to the case but also creates norms in the course of adjudicating processes. It will illustrate this phenomena by discussing the opinions of scholars on Judicial Lawmaking, the concept of Kompetenz-Kompetenz, and exemplified with the impact of the decisions and advisory opinions of the International Court of Justice to the development of International Law.
In the traditional sense, lawmaking is understood as a formal procedure of legislation or codifying the rules that define the rights and binding obligations of subjects of legal relations.9
Scholars argue that doctrine of inherent power empower the international courts to develope the rule, when there is a gap in law. J. Pinsler opine that court may fulfill a lacuna in the procedural rules relying on its inherent powers when there is no rules provided.10 He furhter argues that the doctrine of inherent jurisdiction empowers the court to override or qualify the rule, which strict application may lead to injustice in circumstances that may have not been “foreseen by the statutory machinery”.11 One could agree with the Pinsler’s assumptions that inherent power of a court may be exercised by it in the interest of justice, when the “statutory mechanism” fails to do so.12
The general understanding of a principle Kompetenz-Kompetenz or compétence de la compétence refers to the power of an international court to determine its own jurisdiction.13 In the dissenting opinion on Alleged Violations of Sovereign Rights and Maritime Spaces in the
9 K. Oellers-Frahm ‘Lawmaking through Advisory opinions?’ (2011) 5 GLJ 1052.
10 J. Pinsler ‘Inherent Jurisdiction Re-visited: An Expanding Doctrine’ (2002) SAcLJ 14 1, 14-16. 11 Ibid.
12 Ibid.
13 Crawford, James. "Continuity and Discontinuity in International Dispute Settlement: An Inaugural Lecture." Journal of International Dispute Settlement 1.1 (2010) 15.
7 Caribbean Sea (Nicaragua v. Colombia) case ICJ judge Cançado Trindade argued that International tribunals understood that “their compétence de la compétence, and their inherent powers, are not constrained by State consent”. 14
He further argued international case law that international tribunals use their inherent powers “to fill lacunae of their interna corporis.”15 Judge Cançado Trindade further opined that
“international tribunals have made statements in support of their exercise of inherent powers for the proper performance of their international judicial function. This becomes even clearer in the understanding that their task goes beyond the peaceful settlement of disputes, as they also say what the law is (juris dictio).”16 He concludes that “[i]n settling disputes and saying what the law is, international tribunals have exercised their inherent powers and endeavored to secure the proper administration of justice, in facing new challenges. International tribunals have thus enabled themselves to contribute to the progressive development of international law.”17
The role of international and regional courts is to resolve the disputes between the international actors and interpret the meaning of international treaties, where there is controversial wording of the particular rules, determining the rights and obligations of the actors. International courts however contribute to the development of international law by means of judicial decisions on concrete cases and delivering advisory opinions on legal issues.
The concept of Judicial Lawmaking has been discussed for a while and scholars suggest to understand the Judicial Lawmaking as “an inevitable generation of legal normativity in the course of international adjudication.”18
A. Dicey defined the judge-made law as rules “to be collected from the judgments of the Court” that “has not been created by Act of Parliament, and is not recorded in the statute-book”, but it is “ the work of the Courts; it is recorded in the Reports; it is, in short, the fruit of judicial legislation”.19
According to the formal position under the Statute of ICJ the judicial decision is binding only to the parties of the exact case.20 However, in the modern international legal system, the
14 Separate Opinion Of Judge Cançado Trindade on Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) ICJ at < https://www.icj-cij.org/files/case-related/155/155-20160317-JUD-01-01-EN.pdf> Para 44.
15 Ibid Para 56. 16 Ibid para 61. 17 Ibid para 66
18 von Bogdandy, A., & Venzke, I. (2013). International courts as lawmakers. In R. Wolfrum, & I. Gätzschmann (Eds.), International dispute settlement: room for innovations? (pp. 161-213). (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht; No. 239). Heidelberg [etc.]: Springer. https://doi.org/10.1007/978-3-642- 34967-6_5 162.
19 A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) (1917) 257.
8 decisions of the ICJ on the particular case have a law-making effect as it has the authoritative value of the main judicial body of the United Nations which decisions have "precedential value".21
Writers argue that article 59 of the ICJ Statute does not affect the convincing power of the ICJ judgments and it provides only technical protection "to prevent legal principles accepted by the Court in a particular case from being binding also upon other states or in other disputes.”22
The authoritative interpretation of the law in the decisions of ICJ is widely accepted by states, international courts, legal scholars, etc.23
Scholars argue that Judicial Lawmaking is reflected in the settling of a particular case, where the legal normativity is created and developed in the context of that case.24 Venzke notes that with the application of the law in a concrete dispute between the parties, the judgment and justification go beyond the particular case and may be applied in the later cases as an argument for "what the law means".25
Parties and participants to the dispute build their expectations on the application of the law to the dispute on the grounds of the previous judgments and the court is expected to follow the logic of similar cases.26 In such reality, many judgments of international courts rely on precedents as arguments in which authority does not concede to the international treaties.27
The role of the judicial decisions as “subsidiary meaning for the determination of rules of law” has been enshrined in the Statute of the International Court of Justice.28
Although the EAEU Court Statute does not explicitly define the "judicial decisions" as sources of law, the EAEU Court widely applies the judgments of international courts in justification of its decisions.29
Writers emphasize that the ICJ expresses an "authoritative voice on the meaning of international instruments and unwritten principles”.30 In this regard, the judicial decision of international courts on cases has an impact on further decisions in similar cases, which effect can be compared with the law.
21 Boyle, Alan, and Christine Chinkin. The making of international law. OUP Oxford (2007) 293. 22 Ibid 296. 23 Bogdandy (n 18). 24 Ibid 169. 25 Ibid 170. 26 Ibid. 27 Ibid 175.
28 ICJ Statute art 38(1)(d).
29 The EAEU Court in its judgments refers to the judgments of the International Court of Justice, European Court of Human Rights, European Court of Justice, and another international forum. See also Chaika Konstantin Leontievich. “Mezhdunarodno-pravovyye podkhody v praktike Suda Yevraziyskogo ekonomicheskogo Soyuza” [International legal approaches in the practice of the Court of the Eurasian Economic Union] Journal of Russian law, no. 11 (263), 2018 at https://cyberleninka.ru/article/n/mezhdunarodno-pravovye-podhody-v-praktike-suda-evraziyskogo-ekonomicheskogo-soyuza (In Russian).
9 The contribution of the advisory opinions in the development of International Law is also widely accepted by legal scholars.31 The delivery of advisory opinions by international courts as advice on the existence of a rule or the meaning of such rule indisputably contributes to the evolution of international law, where the meaning of the treaty is controversial.32
In the advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ answered to issues of admissibility and the effect of reservations in international treaties being objected or not by the parties to the treaty the court, the court findings developed in the legal regime of reservations.33
In the advisory opinion on Reparations for Injuries Suffered in the Service of the United Nations, the ICJ resolved the issue of international legal personality and the capacity to file a claim against the state of the United Nations, that predetermined the issue of the personality of international organizations.34
In the advisory opinion, Certain Expenses of the United Nations the ICJ decided the issue of expenses for peacekeeping operations authorized by the UN General Assembly that had to be covered by the member-states.35
An advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) the ICJ held important findings regarding the issue of international responsibility of a state arising from the physical control and not from the sovereignty over the particular territory.36
The Separation Wall advisory opinion is important as the ICJ expressed its understanding of "armed attack" in terms of Article 51 of the UN Charter, which is contrary to the position of the Security Council.37 In the interpretation of "armed attack", the ICJ stated that it referred only to attacks committed by a state and not by non-state actors.38
The above advisory opinions are important in terms of filling the gaps and dark places of International law that existed before the ICJ delivered its opinions on these issues. The advisory opinions of international courts are important for states and actors on the international plane, as such opinions represent the authoritative position of the court on legal matters that determine to understand the international law and actors may rely on the advisory opinion as they rely on the
31 Oellers-Frahm (n 9) 1040. 32 Ibid 1046.
33 Ibid 1041; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide ICJ Reports (1951) 15.
34 Reparations for Injuries Suffered in the Service of the United Nations Advisory Opinion ICJ Reports (1949) 174. 35 Certain Expenses of the United Nations Advisory Opinion ICJ Reports (1962) 151.
36 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory opinion ICJ Reports (1971).
37 The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion ICJ Reports (2004).
10 law. In this regard, one could agree with scholars who argue that treaty interpretations and findings in advisory opinions are “statements of law erga omnes” and its effect that state complying with the Court’s statement in advisory opinion cannot be considered as acting unlawfully and vice versa the State has to justify if its acts contrary to the advisory opinion.39
However, the international court may also limit itself from "developing law" and not provide a conclusion when there are gaps or "non liquet" in international law.40 In the remarkable Use of Nuclear Weapons Advisory Opinion, the ICJ found that International Law cannot provide an answer to the question of the legality of the threat or use of a nuclear weapon and held that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the ICJ cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake”.41 Moreover, the ICJ noted that “in answering the question posed, the ICJ would be going beyond its judicial role and would be taking upon itself a law-making capacity. It is clear that the ICJ cannot legislate...”42
Writers opine that in the dispute settlement process between the parties the court is governed with the principle of consensual jurisdiction and respect the will of the parties to solve the dispute, therefore the Court shall avoid finding gaps in the law or so-called "lacunae" and therefore deny non liquet43. Contrary, in the delivery of the advisory opinion the court may find no answer in the law and non liquet then expresses the principles of self-interpretation and polinormativity as patterns of the international legal system.44
In summary legal scholars agree that international courts are not only applying the law but also participate in the process of law-making and therefore contribute to the development of the international legal system by means of rendering the judgments on a dispute between the parties on a particular case or deliver an advisory opinion on legal issues based on international law.45 However Judicial Lawmaking is not always a positive phenomenon and writers argue that bad Judicial Lawmaking can still be effective as acts of lawmaking and claim that judges “should
39 Oellers-Frahm (n 9) 1051.
40 Prosper Weil, 'The Court Cannot Conclude Definitively . . . Non-Liquet Revisited' (1998) 36 Colum J Transnat'l L 117.
41 The legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226. 42 Ibid.
43 Prosper (n 40) 119. 44 Ibid.
11 endeavor to make a law that is coherent, principled, and considerate of the relevant legal sources.”46
This Chapter has examined the concept of Judicial Lawmaking and showed that ICJ contributes to the development of International law by means of rendering judgments and delivering advisory opinions, that have the effect of law.
Chapter 3: EAEU LAW
This chapter discusses the structure and applicable law of the EAEU. It shows that the EAEU's institutional framework consists of international treaties within the EAEU and although decisions of the EAEU Court are not directly referred to as the source of EAEU Law the EAEU Court applies its previous judgments in justifying other decisions.
3.1.
The legal system within Eurasian integration
The idea of creating the EAEU was laid down in the Declaration on Eurasian Economic Integration adopted by the presidents of Russia, Belarus, and Kazakhstan on November 18, 2011.47 The Declaration set forth the goals of Eurasian economic integration for the future, including the aim of creating the Eurasian Economic Union by January 1, 2015. The Eurasian Economic Union (EAEU) is an international organization of regional economic integration that was established on 24 May 2014 in Astana (Republic of Kazakhstan) on the basis of a Treaty on EAEU (TEAEU) signed by presidents of Kazakhstan, Belarus and the Russian Federation. The TEAEU came into force on 1 January 2015. The current Member States of EAEU are: Armenia (from January 2, 2015), Belarus, Kazakhstan, Kyrgyzstan (from August 12, 2015), and Russia. The Republic of Moldova became the first state to receive observer state status within the EAEU (May 14, 2018).48
It is not the first attempt to unite the states in the post-Soviet space. There was an economic integration within the Commonwealth of the Independent States ("CIS"), and the subsequent development of a free trade area.
The EAEU was created on the basis of the Customs Union and the Single Economic Space of Russia, Kazakhstan, and Belarus as an international organization of regional economic integration with international legal personality. Within the Union, freedom of movement of goods, services, capital, and labor is ensured, as well as a coordinated or uniform policy in key sectors of the economy.
46 Steinman, Adam N. "A Constitution for Judicial Lawmaking." U. Pitt. L. Rev. 65 (2003) 545.
47 The official website of the Ministry of foreign affairs of Russian Federation at <
https://www.mid.ru/evraziyskaya_economicheskaya_integraciya/-/asset_publisher/cb4udKPo5lBa/content/id/934661#_ftn1>.
48 The decision of the Supreme Eurasian Economic Council 14.05.2018 at <
12 The main objectives of the Union are:
- creating conditions for the stable development of the economies of the Member States in the interests of improving the living standards of their population;
- the formation of a single market for goods, services, capital and labor within the Union; - comprehensive modernization, cooperation, and increasing the competitiveness of national economies in the global economy.49
The bodies of the Union are the Supreme Eurasian Economic Council (meeting of the heads of states), the Eurasian Intergovernmental Council (the level of heads of government), the Eurasian Economic Commission – the Union’s permanent regulatory body consisting of the Council and the Collegium, headquartered in Moscow and the EAEU Court (located in Minsk, Belarus).50
Additionally, it is planned to create a supranational financial market regulation body (located in Kazakhstan) by 2025, which will become the basic element in the formation of the EAEU common financial market. These plans were made during a meeting of the Supreme Eurasian Economic Council on December 6, 2018, in St. Petersburg, when a Declaration on the further development of integration processes within the EAEU was signed, and which recorded the intention of member states to supplement the integration project with new initiatives and areas of cooperation.51 Currently, a document is being developed that defines the strategic directions for the development of Eurasian economic integration until 2025 and reveals specific mechanisms and measures for the implementation of the above Declaration.
According to the Treaty on the EAEU52, the Union is vested with the right to carry out, within its competence, international activities aimed at solving the tasks facing the Union. The procedure for the implementation of international cooperation with states, international organizations, and international integration associations was approved by the Decision of Supreme Eurasian Economic Council on December 23, 2014 No. 99.
The Union is open to the accession of any state that shares its goals and principles, on conditions agreed by the Member States.53 To obtain the status of a candidate state for joining the Union, the interested state sends an appropriate appeal addressed to the Chairman of the Supreme Eurasian Economic Council.54 At the meeting of the Supreme Eurasian Economic Council on May 14, 2018, in Sochi, the heads of the member states of the Union approved the Regulation on the status of observer state at the EAEU.
49 TEAEU art 4.
50 See web-site of EAEU http://www.eaeunion.org/?lang=en#info.
51 The decision of the Supreme Eurasian Economic Council 6.12.2018 at < https://docs.eaeunion.org/ru-ru>. 52 TEAEU art 7.
53 TEAEU art 108.1. 54 TEAEU art 108.2.
13 The EAEU operates a customs union regime, within the framework of which a Unified Customs Tariff and other common measures for regulating foreign trade in goods with third parties are applied, a single trade regime is in place, a single customs regulation is carried out, goods are freely moved between the territories of the Member States without applying customs declaration state control.55
The financing of the activities of the bodies of the Union is carried out at the expense of the budget of the Union, which is formed in the manner determined by the Regulation on the budget of the Eurasian Economic Union.56 The Supreme Eurasian Economic Council approves the budget of the Union, which is formed in Russian rubles at the expense of shared contributions of member states (Armenia -1.22%, Belarus - 4.56%, Kazakhstan - 7.055 %, Kyrgyzstan - 1.9%, Russian Federation - 85.265%).57
The TEAEU provides for new mechanisms aimed at developing unified foreign trade policy.58 Joint measures are being taken to develop the export of goods of the Member States of the Union to the markets of third countries, including insurance and export credit, international leasing, promotion of the concept of "goods of the Eurasian Economic Union" and the introduction of unified labeling of Union goods, joint exhibition, fair and exposition activities.59
3.2.
Sources of EAEU law
The TEAEU defines the list of sources of EAEU Law, that besides TEAEU itself includes the International treaties within EAEU and International treaties of EAEU with a third party, the decisions, and orders of the EAEU institutions, such as Supreme Eurasian Economic Council, the Eurasian Intergovernmental Council, and the Eurasian Economic Commission. 60
Additionally, in case of conflict of legal sources the following hierarchy of acts is established:
1. TEAEU
2. Acts of Supreme Eurasian Economic Council 3. Decisions of Eurasian Interstate Council
4. Decisions of the Eurasian Economic Commission. 61
55 TEAEU art 25. 56 TEAEU art 20. 57 TEAEU art 12. 58 TEAEU art 33. 59 TEAEU art 41. 60 TEAEU art 6. 61 Ibid.
14 The Statute of the EAEU Court extends the list of applicable law to the generally recognized principles and regulations of international law and international custom as evidence of the general practice accepted as a rule of law.62
M. Kariluk notes that the list of sources almost duplicates the sources applied by the International Court of Justice, but excludes the widely accepted "judicial decisions … as subsidiary means for the determinations of rules of law".63 However, the EAEU Court Statute determines the list of sources of law that the EAEU Court shall apply when it dispenses justice. This list includes the “decisions and directions of the bodies of the Union”, without explicitly listing EAEU bodies whose decisions and directions the court shall be applied.64 The TEAEU defines the EAEU Court as one of the bodies of EAEU.65 The literal reading of the above provisions authorizes the EAEU Court to apply its own decisions and judgments in other cases. The EAEU Court follows these specifics of the EAEU Court Statute and refers to its own previous judgments on particular cases in justifying the reasonings of the position of the EAEU Court on similar issues. For instance, in the recent advisory opinion on the request of Russia on interpretation the provisions of TEAEU governing the financial services and taxation within EAEU, the Court referred to its judgment on the Sevlad case to justify its conclusion on the issue of exclusive jurisdiction of the EAEU member-states over specifics of taxation shall be defined by national legislators and is out of the scope of EAEU law.66
M. Kariluk further notes that unlike the ICJ, the EAEU Court is not able to create law while interpreting the existing law due to direct restrictions defined by its Statute.67 This opinion is supported by scholars who follow the literal meaning of the limitation in the Statute that the EAEU Court acts as a law enforcement body, rather than creator of law. 68 T. Neshatayeva has opposite views and argues that the Court develops its position on the interpretation of international law and such a position may repeat in acts of national and international courts which lead to the creation of a standard of application of the law.69 Neshatayeva concludes that the judicial position in the judgment or advisory opinions that initially is binding/ recommendatory only to particular
62 EAEU Court Statute Chapter IV(50).
63 Kariluk, Maksim. “The Eurasian Economic Union: an emerging autonomous legal order?” Diss. Ghent University, (2018) 131.
64 EAEU Court Statute Chapter IV 50(3). 65 TEAEU art 8(1).
66 EAEU Court advisory opinion on the request of Russia on financial services and taxation 10.07.2020 at <http://courteurasian.org/doc-27983>.
67 Ibid 132; See also para. EAEU Court Statute 102.
68 Kembayev Zh. (2016) Sravnitel’no-pravovoy analiz funktsinirovaniya Suda Evraziyskogo Ekonomicheskogo Soyuza [The comparative study of functioning of the Court of the Eurasian Economic Union]. Mezhdunarodnoe pravosudie, no.2, pp.30–45. (In Russian) 44.
69 Neshataeva, T. N. Deystviye aktov mezhdunarodnogo suda v natsional'nykh pravovykh
sistemakh: na primere aktov Suda YEAES [Effect of acts of the international court in national legal
systems: on the example of the acts of the EAEU Court] (In Russian) At < http: // courteurasian. org / page-22731>(2019) 3.
15 parties after repetition in case law becomes a customary law that is binding to a wide range of persons.70
The legal status of EAEU Court, comparison of its competence with predecessors, and the background of the imposing restrictions to make the law will be discussed in Chapter 4.
Chapter 4: EAEU COURT WITHIN EAEU LEGAL FRAMEWORK
This Chapter discusses the development of legal status and competence of the EAEU Court. It explains the reason for restricting the EAEU Court to create and amend the law exemplified with the evolution of competence of international courts established in integration projects on post-Soviet space preceding EAEU.
4.1.
The legal status and the competence of the EAEU Court
The Court of EAEU is a permanent and independent judicial institution that is established by the member-states of EAEU with the objectives to provide a uniform interpretation of the Union of the EAEU Treaty, other international treaties within the Union and decisions of the bodies of the EAEU by the Member States and its bodies.71 The EAEU Court takes specific place within the structure of the EAEU bodies as it acts as a supranational judicial body and exclusively evaluates the decisions of other bodies of EAEU.72
The legal status of the EAEU Court, its competence, powers, and composition stated in the TEAEU, Statute of the Court of the EAEU (Appendix No. 2 to the Treaty on the EAEU), as well as in the Rules of Court of the EAEU.
The establishment of the EAEU Court reflected the trend to the unification of the justice systems of the post-soviet states that seek integration mechanisms after the collapse of the Soviet Union.
The procedures and the conditions of the activity of the EAEU Court are determined by the Regulations, that were adopted by the decisions of the Supreme Eurasian Economic Council on December 23, 2014.73
The competence of the EAEU Court consists of resolving and considering disputes arising during the development of an integration organization, and the effectiveness of its work is a
70 Ibid 6.
71 Para 2 chapter 2 Statute of EAEU Court.
72 Baishev, Zholymbet Nurakhmetovich “Sud Yevraziyskogo Ekonomicheskogo Soyuza: Problemy Funktsionirovaniya” [Court of the Eurasian Economic Union: problems of functioning] Proceedings of the Institute of State and Law of the Russian Academy of Sciences 14.1 (2019) (in Russian).
73 The decision of the Supreme Eurasian Economic Council on December 23, 2014 #101 at <
16 guarantee of maintaining the international authority of the EAEU Court and the strong relations of the member countries of the Union.
The competence of the EAEU Court includes the disputes that arise regarding the implementation of international treaties, agreements, decisions of the bodies of the Union. The EAEU Court as EEC Court has jurisdiction to consider the claims not only member-states but also business entities and registered individual entrepreneurs under the law of EAEU member-states and third party states.74 However, individuals who are not registered as entrepreneurs but conduct their professional activity as attorneys, notaries, auditors are not entitled to file their claims to EAEU Court, while the decisions of the bodies of EAEU may violate their rights in the field of investments, migration, taxation or other regulations within EAEU.75 This limitation of jurisdiction of EAEU Court may be considered as a gap in EAEU Law as limitation of applicants and limitation of the rights of individuals who are not registered as entrepreneurs and therefore may not seek the protection of their rights and the interests at the supranational level otherwise, it would strengthen the status of the EAEU Court as the highest legal body in the post-Soviet space.
4.2.
The EAEU Court and its predecessors
The EAEU Court is not a first attempt to establish a regional dispute settlement forum after the collapse of the Soviet Union. The comparison of the EAEU Court with its predecessors is valuable in terms of understanding the development of the judicial practice and current status of the EAEU Court within the EAEU legal system.
The Economic Court of the Commonwealth of the Independent States (hereinafter "ECCIS") was established in 1992 a few months after the establishment of the Commonwealth of the Independent States (hereinafter “CIS”), which was the first post-soviet regional integration project.76
The ECCIS had jurisdiction to resolve interstate economic disputes arising from the execution of the obligations under the international treaties within the CIS and on compliance of the national legislation of the member-states to the law of the Commonwealth.77 ECCIS was not able to reject the resolving of a dispute relying on the absence or uncertainty of the applicable law.78 Only member-states represented by their bodies and institutions of CIS were entitled to file a claim at ECCIS.
74 EAEU Court Statute Chapter IV (39).
75 Ibid; See also Babkina, Elena Vasilievna. "Competence of the EAEU court in disputes involving economic entities." (2017) at < https://elib.bsu.by/bitstream/123456789/182418/1/babkina_Reform_IR-3.pdf>13.
76 History of ECCIS at < http://sudsng.org/about/history/ >.
77 Regulations on the Economic Court of Commonwealth of Independent States 06.07.1992 at <http://sudsng.org/download_files/docs/dk17s021p_01.pdf > para 3.
17 The ECCIS was empowered to provide advisory opinions on the interpretation of the provisions of CIS law and the applicability of the law of the Soviet Union.79 ECCIS delivered the advisory opinions on the request of the parliaments, governments, and courts of the CIS member-states and institutions of CIS.80 It is important to note that the ECCIS regulations do not define that advisory opinions were recommendatory, moreover, the Chairman of ECCIS F. Abdullayev opined that ECCIS advisory opinions had a binding effect to CIS member-states.81
The ECCIS formally still exists, however, its activity is almost ceased as no cases were resolved by the ECCIS in the past three years and the ECCIS transformed from the permanent to ad hoc judicial institution.82
ECCIS had temporarily performed the functions of the Court of the Eurasian Economic Community (hereinafter – "EEC Court") before the formation of EEC Court in accordance with the agreement between the CIS and Eurasian Economic Community.83 In performing the functions of EEC Court ECCIS had jurisdiction to consider the disputes on the requests of the states, presented by their governments and provide advisory opinions on the request of member-states, Interstate Council, interstate parliament assembly and integration committee of EEC.84
The Court of the Eurasian Economic Community (hereinafter – "EEC Court") was founded in 2003 when the Interstate Council of the ECC adopted the first statute of EEC Court.85 The first Statute of EEC Court was not applied from 2004 until 2011 when ECCIS performed the functions of the EEC Court.86 In 2010 a new Statute of EEC Court was adopted by the Interstate Council of the ECC that was effective until termination in 2015.87
Unlike ECCIS, EEC Court had extended jurisdiction over the claims of business entities after the establishment of the Customs Union in 2010.88 The definition of “business entities” includes not only the legal entities, established under the laws of the Customs Union
member-79 Ibid 5. 80 Ibid.
81 Report of the Chairman of the CIS Economic Court F. Abdulloev at the International Scientific and Practical Conference "Constitutional Control Bodies in the Context of Integration of Legal Systems: International Experience and Practice of Tajikistan" in honor of the 15th anniversary of the Constitutional Court of the Republic of Tajikistan November 4, 2010 Dushanbe at < http://sudsng.org/press/article/dokl20101104/ >.
82 See the website of the ECCIS at < http://sudsng.org/database/deed/>.
83 Agreement between the Commonwealth of Independent States and Eurasian Economic Community on the performing by ECCIS the functions of ECC Court 03.03.2004 at < http://sudsng.org/download_files/statdocs/ agreement_cis_evr.pdf>.
84 Ibid art 3.
85 The decision of the EEC Interstate Council on April 27, 2003, at < http://docs.cntd.ru/document/902126375>. 86 Treaty of the performing the functions of the Court of the ECC by the ECCIS March 3, 2004, at < http://sudsng.org/download_files/statdocs/agreement_cis_evr.pdf>.
87 The decision of the EEC Interstate Council on the adoption of EEC Court Statute July 5, 2010, at < http://docs.cntd.ru/document/902279047>.
88 Agreement on the appeal to the Court of the Eurasian Economic Community of business entities in disputes within the framework of the Customs Union and the specifics of legal proceedings on them 09.12.2010 at <
18 states but also legal entities and individual entrepreneurs established under the laws of third states.89
Just as ECCIS, EEC Court was entitled to provide advisory opinions on the request of member-states, Interstate Council, interstate parliament assembly, and integration committee of EEC, however, the Statute of EEC Court explicitly stated that advisory opinions have a recommendatory effect.90
4.2.1. Composition of the EAEU Court and the status of the Judges
The judicial independence of the court is important in delivering fair and independent judgements and delivering of advisory opinion, otherwise the authority of the acts of EAEU Court may be doubted by concerned parties. It is therefore important to understand the and evaluate how the composition procedures of EAEU Court may affect to independence of judges.
The EAEU Court is composed of two judges from each Member State for nine years terms of office.91 As of today, ten Judges were appointed by the Supreme Eurasian Economic Council where the EAEU Member-States are represented by the heads of states (Presidents).92
Scholars claim that the procedure of the electing the judges were much more developed in the EEC rather than EAEU, as the bodies of the former organization included also the representative's institution that was presented by the Interparliamentary Assembly of the EEC member-states, that elected the judges of ECC Court, while the judges of EAEU Court are elected by the Supreme Eurasian Economic Council, represented not by the parliaments, but the heads of the member-states.93
The EAEU Court Statute determines the circumstances when the judge is removed from the office that includes termination of the EAEU Court, expiration of the term of office, the resignation of the judge, and other conditions determined by the Chapter II (12) of the EAEU Court Statute.94
The procedure of appointment and termination of office of the Judges of EAEU generally repeats the procedures within the ECCIS where termination of the terms of office may also be initiated by the Member-State which representative the Judge is, however in ECCIS this grounds for such termination are limited to cases of abuse of authority, illness or committing crimes by such Judge.95
89 Ibid.
90 EEC Court Statute art 13.
91 EAEU Court Statute chapter II(8). 92 EAEU Court Statute chapter II(10). 93 Kembaev (n 68) 31.
94 EAEU Court Statute Chapter II(12)
19 In the EEC Court, the authority to decide on the termination of the terms of office of the Judges had only the Interparliamentary Assembly of the EEC member-states that considered this issue upon the respective proposal from the Interstate Council of EEC.96
The President and Vice-President of EAEU Court are elected for a period of three years by its the Judges in a secret ballot and then this election is adopted by the decision of the Supreme Eurasian Economic Council.97 While in the EEC Court the Chairman is rotated every two years and elected by the Judges without further approval by other bodies or member-states.98
The EAEU Court adhere to the same principles in rendering judgments as it was declared by ECC Court, which are:
- Independence of Judges;
- Transparency of the proceedings; - Publicity;
- Equality of the parties to the dispute; - Competitiveness;
- Collegiality.99
Scholars however criticize the applicability of the Independence principle in EAEU Court Statute due to several reasons. Firstly, the independence of judges is significantly threatened with the right of the member-state to initiate the pre-term termination of the terms of office of its delegated Judge.100 Kembayev argues that neither Statute nor Regulations of the EAEU Court do not limit the grounds for initiating by the EAEU member-state the pre-term termination of the authority of their judge, that actually could lead to any reason for initiation of the termination of the terms of office of the Judge.101
Scholars criticize this disbalance in the application of the immunity to the Judges as it affects the applicability of the principle of independence of the Judges.102 In terms of immunity protection, the Judges of EAEU Court may rely on more privileges rather that EEC Court or ECSIS Judges, who were protected with immunity only in respect of actions connected with their office.103 The EAEU Court Judges are protected with the scope of immunity under the Vienna Convention on Diplomatic Relations.104
96 EEC Court Statute art 5(1).
97 EAEU Court Statute Chapter II(15-16). 98 EEC Court Statute art 8(1-2)
99 EAEU Court Statute Chapter V(53) and ECC Court Statute art 2. 100 Kembaev (n 68) 31.
101 Ibid. 102 Ibid 33.
103 EEC Court Statute art 7; Convention on the Privileges and Immunities of the Eurasian Economic Community art 11.
104 Provisions on Social Guarantees, Privileges, and Immunities in the Eurasian Economic Union, annex 32 to TEAEU 18.
20 At the same time application of the immunity of Judges is limited to the receiving state, i.e. Republic of Belarus, where the EAEU Court is situated.105 However, the Judges who are citizens of the Republic of Belarus may not rely on the same scope of immunity as they may rely only on the immunity of officials.106 The independence of Judges is threatened with the authority of the Supreme Eurasian Economic Council to withdraw the immunity of the Judges of EAEU.107
4.2.2.
Jurisdiction of the EAEU Court
As it was discussed in Chapter 2 the Judicial Lawmaking is expressed through the judgements and advisory opinions of the international courts. Thus, understanding of statutory jurisdictional design of EAEU Court is important in the evaluation of its lawmaking authority.
4.2.2.1. Disputes settlement
The jurisdiction of the EAEU Court to consider the disputes in connection with the implementation of TEAEU and or decisions of EAEU bodies is based on Chapter IV(39) of its Statute, which distinguishes the specific claims that may be initiated by the member-states and legal entities of the EAEU.108
In contrast to the jurisdiction of the EEC Court which had jurisdiction over claims initiated by the bodies of the EEC, the EAEU Court’s jurisdiction is limited to the claims of the member-states and legal entities and lacks the power of EAEU bodies to initiate proceedings.109 However, the Eurasian Economic Commission may intervene in the dispute considered by the EAEU Court if it may affect its interest.110 Yet, the EEC legal regime was more effective for enforcement of the law as the Eurasian Economic Commission was entitled not only to monitor and control the execution of the international treaties by the member-states but also to initiate proceedings against the EEC Member-states that fail to comply with their obligations.111
105 Ibid. 106 Ibid 19(1).
107 Ibid: See also Provisions on Social Guarantees, Privileges, and Immunities in the Eurasian Economic Union, annex 32 to TEAEU 35(1).
108 EAEU Court Statute Chapter IV(39). 109 Ibid. and EEC Court Statute art 14(1). 110 EAEU Court Statute 60.
111 Agreement on Eurasian Economic Commission November 18, 2011, at < http://www.eurasiancommission.org/ru/act/trade/Documents/%D0%94%D0%BE%D0%B3%D0%BE%D0%B2%D 0%BE%D1%80%20%D0%BE%20%D0%95%D0%AD%D0%9A.pdf> art 20.
21 The proceedings in ECCIS may be initiated only by states, while the private legal entities are not entitled to apply its jurisdiction unlike in EAEU Court.112
In comparison to ECCIS which jurisdiction was limited to the disputes only of “economic character” the EAEU Court has no such explicit restrictions and EAEU member-states may extend the jurisdiction of EAEU Court over any other disputes in international treaties within the EAEU or EAEU treaties with the third party.113
The jurisdiction of the EAEU Court does not cover the claims arising on damage and property disputes, as Chapter V(60) of the EAEU Court Statute explicitly requires to leave such disputes without consideration.114 These provisions significantly limit the competence of the EAEU Court and reduce the attraction of the legal entities to initiate proceedings.115
4.2.2.2. Advisory Opinions and Prejudicial Conclusions
The important function of the EAEU Court is delivery of the advisory opinions on the interpretation of the treaties within EAEU and the agreement of EAEU with third states, provided that such agreements explicitly authorize EAEU Court to make such interpretations.116
In terms of delivery of the advisory opinions, the supreme courts of EEC member states were entitled to directly request the EEC Court to deliver the advisory opinion, whilst under the EAEU legal regime, only the member-states and the bodies of the EAEU are entitled to request the advisory opinions.117
In terms of the delivery of the advisory opinions, the supremacy of the EAEU Court opinion is questionable as its interpretation of the provisions of EAEU law does not limit the power of the member-states to have their own common interpretation.118
Writers argue that the main deviation of EAEU Court from the progress that was in EEC Court, that the former is not authorized to render prejudicial conclusions.119 The Supreme national judicial body of the member states of EEC was entitled to request the EEC Court to deliver the conclusion on the issue of the application of international treaties within the integration organization and acts of its bodies, that affect to the interest of the legal entities if such issue has a
112 Although the Regulation on the Economic Court of the Commonwealth of Independent States declares the jurisdiction of the court to consider the claims of legal entities only upon execution of the additional agreement by the member-states, that are not in place as of today. See also Kembaev (n 68) 35.
113 EAEU Court Statute Chapter IV(39-40); ECCIS Charter art 32. 114 EAEU Court Statute Chapter V(61).
115 Kembaev (n 68) 36.
116 EAEU Court Statute Chapter IV(48)
117 EAEU Court Statue 49; EEC Court statute art 26(1). 118 EAEU Court Statute 47.
22 significant influence on the dispute settlement in the national court.120 Scholars opine that this kind of conclusion of the EEC Court was kind of "preliminary rulings" of the European Court of Justice, that play an important role in the development of the legal system.121
The EAEU Court however has not such authority to deliver the prejudicial conclusions and it is limited with the preparation of the advisory opinions, that have recommendatory character rather than prejudicial.122
4.2.3. Behind the restrictions of EAEU Court “to create or amend
the law”
Although the EAEU Court does not recognize itself as a legal successor of the EEC Court its practice may explain the reasoning behind the implementation of the restrictions in the Chapter VII(102) Statute of EAEU Court to “create”, “amend” and “abrogate” the law of EAEU or legislation of member-states.123
EEC Court indicated much more willingness and readiness to be not only an adjudicative body of the EEC but an active participator of the law-making process.
The very first decision of the EEC Court on the Yuzhniy Kuzbass case evidenced the ability of the Court to go beyond its objectives to ensure a uniform application of EEC law, solve the dispute between the parties on the execution of the decisions of the EEC bodies and treaties within EEC and interpretation of the treaties and decisions of EEC bodies.124
In that case, the Yuzhniy Kuzbass company had submitted the claim challenging the decision of the Customs Union Commission (the legal predecessor of the Eurasian Economic Commission) on customs regulation.125 The Eurasian Economic Commission that was a legislative body of the EEC requested the EEC Court to reject the claim as the claimant has not addressed the issue directly to the Eurasian Economic Commission in terms of a pre-trial settlement of the
120 Agreement On Application To The Court Of The Eurasian Economic Community Of Business Entities On Disputes In The Framework Of The Customs Union And The Specific Features Of Court Proceedings December 9, 2010, at < http://courteurasian.org/page-21691> art 3.
121 A. S. Ispolinov “Navyazannyy monolog: pervoye preyuditsial'noye zaklyucheniye Suda YevrAzES” [Imposed monologue: the first prejudicial opinion of the EurAsEC Court] // Eurasian legal
magazine. 2013. No. 8 (63). Pp. 21-30 (in Russian), 22. 122 Kembaev (n 68) 39.
123 In the interview of the Chairman of the EAEU Court A.A. Fedortsov declared that EAEU Court is not legal successor of the EEC Court - “My dolzhny sformirofat’ svou sobstvennuu sudebnuyu praktiku” [We must form our own jurisprudence] Zvyazda 24.03.2015 (In Russian) at < http://courteurasian.org/page-23851>; However, the article 99 TEAEU states that treaties executed within EEC legal regime are incorporated into the law of EAEU, the decisions of Eurasian Economic Council remain in force and the Eurasian Economic Commission continues established under the agreement on 18.11.2011 continues its activity within TEAEU. The website of EAEU Court publishes all decisions of EEC Court.
124 EEC Court Statute art 13; Decision of the EEC Court on the claim of Yuzhniy Kuzbass company 05.09.2012 at < https://rg.ru/2012/12/03/reshenie-site-dok.html>.
23 claim.126 The Court however rejected this argument on the grounds of absence of the adopted procedures by the date of the submission of the claim by the company and held that the company's rights to access justice had been violated.127 With this decision, the EEC Court acted as a motivator of the adoption of the pre-trial settlement procedures by the Eurasian Economic Commission.128
In the following decision, the EEC Court went beyond the EEC regulations and interpreted the consequences of the decisions of the EEC Court on challenged decisions of Eurasian Economic Commissions.129 The Agreement on submission of the claims by the private entities to the EEC Court determined, that the decision of the Customs Union Commission that is declared by the EEC Court as not complying with the provisions of international treaties shall be suspended from the date of the EEC Court decision and until the amendment of the decision in compliance with the international treaties.130 However, the EEC Court held that “that the Court's decision, where the contested legal act (some of its provisions) has been held in conflict with treaties concluded within the Customs Union, shall cease its regulatory effect to any number of persons over the whole territory of the Customs Union from the date of its adoption unless otherwise provided by the Court”.131 The EEC Court held that its judgment applies not only to the parties of the dispute but also to the general public (erga omnes), that forms the grounds for review of the judgments of national courts of EAEU member-states, where the courts had a different interpretation of the decisions of EEC bodies, that it made by EEC Court.132 The EEC Court further held that the courts of the EEC member-states shall adhere to the decision of EEC Court in their practice.133
With this decision, EEC Court de facto created a new rule regarding the effect of the decisions of the bodies of the EEC, which was the successor of the Customs Union.
Legal researchers claim that this and other decisions and prejudicial conclusions of the EEC Court predetermined the position of the EAEU member-states in the implementation of the direct restriction of the EAEU Court “to create” and “amend” the EAEU law and national legislation of its member-states.134
126 Ibid. 127 Ibid.
128 The decision of the Eurasian Economic Commission on the adoption of the pre-trial settlement procedures 19.03.2013 #46 at < http://www.eurasiancommission.org/docs/Download.aspx?IsDlg=0&ID=4032&print=1>. 129 The decision of EEC Court on Yuzhniy Kuzbass case April 8, 2013, at < http://courteurasian.org/page-20791 >. 130 The agreement on the application to the EEC Court by private parties dd 9.12.2010 at <http://courteurasian.org/page-21691> art 11(2).
131 The decision of EEC Court on Yuzhniy Kuzbass case April 8, 2013, at < http://courteurasian.org/page-20791 >. 132 Ibid.
133 Ibid.
134 Ispolinov A.S. Dogovor o Yevraziyskom Soyuze kak instrument porazheniya v pravakh Suda YevrAzES [Treaty on the Eurasian Union as an instrument of defeat in the rights of the Court of the EurAsEC] At <http://zakon.ru/blog/2014/6/11/dogovor_o_evrazijskom_soyuze_kak_instrument_porazheniya_v_pravax_suda_ evrazes_chast_1> (2014) (In Russian).
24 Although the Chairman of EAEU Court declines that the EAEU Court is a legal successor of EEC Court, the decisions of the EEC Court are published on the web site of EAEU Court, the transitional provisions of TEAEU state that treaties executed within the EEC legal regime are incorporated into the law of EAEU, the decisions of Eurasian Economic Council remain in force and effect in EAEU and the power of Eurasian Economic Commission that was established under the agreement on 18.11.2011 within EEC remain and continues within EAEU.135 The succession between the bodies Custom Union, EEC and EAEU was confirmed by EAEU Court in its advisory opinion on July 10, 2018 where the EAEU Court with reference to the judgment of the EEC Court held that decisions of Commission of Custom Union that do not conflict with TEAEU remain in force in the EAEU despite a non-inclusion of this provision in transitional provisions of the TEAEU.136 In this regard, it could be claimed that the EAEU Court is the de facto successor of the EEC Court. EAEU Court thus may rely on the practice of EEC Court in justifying its contribution to the development of the EAEU Law by means of decisions and advisory opinions.
The authority of the Eurasian Economic Commission was also significantly limited comparing to the scope of authorities it used to have in the EEC.
Under article 18 of the agreement on Eurasian Economic Commission on November 18, 2011, among other things, Eurasian Economic Commission was empowered to conduct monitoring and supervising functions over the execution of international treaties and decisions of the Eurasian Economic Commission by the member-states, as well as address the binding notifications to member-states on the elimination of the violations of international treaties and non-execution of the decisions of the Eurasian Economic Commission.137 In case of non-execution of the notifications by the member-states, the Eurasian Economic Commission was entitled to apply to the EEC Court and based on the same provision, the EEC Court was empowered with the jurisdiction to adopt provisional measures against any member-states pursuing it to execute the decisions of the Eurasian Economic Commission and eliminate the violations of the international treaties within EEC.138
However, all these provisions were annulled in the further development of Eurasian integration and adoption of the founding agreement of the EAEU where the "control" functions are not provided and the Eurasian Economic Commission had no right to apply to the EAEU Court against any member-state, nor the power of the EAEU Court to take any provisional measures.139
135 TEAEU art 99.
136 Advisory opinion of EAEU Court 10.07.2018 at < Advisory opinion of EAEU Court on 10.07.2018 at
http://courteurasian.org/doc-21263.>
137 Agreement on Eurasian Economic Commission November 18, 2011, at < http://www.eurasiancommission.org/ru/act/trade/Documents/%D0%94%D0%BE%D0%B3%D0%BE%D0%B2%D 0%BE%D1%80%20%D0%BE%20%D0%95%D0%AD%D0%9A.pdf>.
138 Ibid art 20.
25 Despite the limitation of the competence of the EAEU Court, it still contributes to the development of EAEU Law by means of judgments and advisory opinions, which will be discussed in detail in Chapter 5.
Chapter 5: EAEU COURT CONTRIBUTION TO THE EAEU LAW
AND NATIONAL LAW OF EAEU MEMBER-STATES
This Chapter discusses the lawmaking effect of the decisions and advisory opinions of EAEU Court not only within the EAEU legal regime but also to the national legislation of EAEU member-states. It shows these effects by analyzing the binding decisions and advisory opinions of the EAEU Court and the normative decrees of the Supreme Courts of Russia and Kazakhstan.
The EAEU Statute establishes that the objective of the Court is "to ensure, in accordance with the provisions of this Statute, uniform application by the Member States and bodies of the Union of the Treaty, international treaties within the Union, international treaties of the Union with a third party and decisions of the bodies of the Union."140
In order to support this objective, the Court determines its position in a number of legal issues and disputes between the EAEU member-states, by means of issuing binding decisions as well as advisory opinions, that although are recommendatory of nature but have a significant impact in the formation of the understanding of EAEU law.
5.1. Binding Decisions
The binding decisions of the EAEU Court are issued in accordance with chapter VII of the Statute, which states that judgments of the EAEU Court shall be obligatory for execution by the parties to the dispute and the Commission.141
The binding decision of the EAEU Court shall be executed by the relevant participant within 60 days from the date of delivery and in case of non-execution of the EAEU Court’s binding decisions it could be addressed to the Supreme Eurasian Economic Council for a decision.142
Sholars argue, that by interpretation of the legal norms within EAEU that have binding effect to the parties to the dispute, however may go beyond and create a new rules within the EAEU and national legislations of the member-states.143 This paper supports this opinion as judgments of EAEU Court on a particular dispute between the parties, creates the basis for resolving the similar disputes between other actors besides the parties and this will be proved by
140 EAEU Court Statute Chapter I(2). 141 EAEU Court Statute Chapter VII(99-100). 142 EAEU Court Statute Chapter VII (114-115). 143 Neshatayeva (n 69) 10.
26 further analyses of the decisions of EAEU Courts and their impact to the development of EAEU law.
The Judgement of the EAEU Court on the Kapri case is notable as by interpretation of TEAEU provisions. In this case, the EAEU Court determined a standard of eligibility of claimants to apply to the EAEU Court for challenging the decisions of the Eurasian Economic Commission. The decision of the EAEU Court on consideration of the application of the private company Kapri is notable. The company challenged the decision of the Eurasian Economic Commission on the adoption of the regulation on the import of certain goods within EAEU territory that defined the specific approval requirements to importers of equipment. The claimant alleged that decision of the Eurasian Economic Commission violates its rights by means of establishing unequal conditions for entrepreneurship as the Kapri company had to incur additional costs as a result of the decision for obtaining approvals for new equipment, while importers of the used equipment are not required to obtain such approvals.144 The EAEU Court rejected the application of the company on procedural grounds, however, what is important is that the EAEU Court interpreted the provisions of article 39 of the EAEU Court Statute, where the jurisdiction of the EAEU Court is provided.145 Article 39 of the EAEU Court Statute provides the rights of legal entities to submit the claim against the decision of the Eurasian Economic Commission, which "directly affects" the interest of the claimant.146 The EAEU Court held that two conditions should be satisfied in order to confirm that (i) the decision "directly affects" – the claimant should conduct the business in the field of the economy that is affected by the challenged decision of the Eurasian Economic Commission and (ii) the claimant shall suffer actual damage by the decision.147 With the clarification of this provision of the EAEU Court Statute, the EAEU Court established criteria for assessing eligibility of future claimants to apply to the EAEU Court on their claims against decisions of Eurasian Economic Commission.148
With another decision, the EAEU Court besides solving the dispute between the parties established the uniform practice of recognition of the legal documents within EAEU and forced the Eurasian Economic Commission to fill the gap in regulation within EAEU and formulated the principles of EAEU law: direct applicability and supremacy over national law. The decision of the EAEU Court on the dispute based on claims of the Russian Federation against the Republic of Belarus on the alleged violation by the latter state of EAEU regulations related to the mutual recognition of the documents, that led to the violation of the customs regulations within the
144 The decision of EAEU Court April 1, 2015, on case № СЕ-3/2-15-КС at < http://courteurasian.org/page-24261>. 145 Ibid.
146 EAEU Court Statute 39. 147 Ibid.
148 For instance, the same approach the EAEU Court used in Unitrade Case. See the decision of EAEU Court 15.04.2015 at <http://courteurasian.org/doc-14363>.
