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Journal of Eurasian Studies 5 (2014) 116–121

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Journal of Eurasian Studies

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Theory and practice of regional integration basedon the EurAsEC model (Russian point of view)

Adel Galiakberov*, Adel AbdullinInternational and European Law Department, Kazan Federal University, Russia

a r t i c l e i n f o

Article history:Received 10 December 2013Accepted 10 April 2014

Keywords:Customs Union and Common EconomicSpace (CUCES)Eurasian Economic Community (EurAsEC)Eurasian Economic UnionEurasian Economic Space

* Corresponding author.E-mail address: adelgaliak@hotmail.com (A. Galiakb

Peer review under responsibility of Asia-Pacific ReseUniversity

Production and hosting by Else

http://dx.doi.org/10.1016/j.euras.2014.05.0041879-3665/Copyright� 2014, Asia-Pacific Research Ce

a b s t r a c t

This article shows Russian point of view on the evolution of Eurasian integration as relatedto plans to create a Eurasian economic entity based on the EurAsEC model that began withthe creation of the Customs Union and Common Economic Space. The article analyzes thelegal theory of Russian authors of EurAsEC, based on a review of this integration and thelegal documents of this process. The article details the institutional mechanism of thefunctioning of Eurasian integration and its legal characteristics, and gives a short legalhistory. The article shows that integration of post-Soviet countries based on EurAsEC ismore successful than integration based on the CIS model despite the lack of supranationalpower of the institutions of EurAsEC.

Copyright � 2014, Asia-Pacific Research Center, Hanyang University. Production andhosting by Elsevier Ltd. All rights reserved.

1. Globalization and regionalization in Russian LegalDoctrine

The current stage of integration in the world shows ustwo dialectically, jointly conditioned but internally antag-onistic processes: globalization and regionalization.

Globalization is a universal phenomenon that reflectsthe growing interdependence of states in addressingcommon problems and also the close relationship betweeninternational and national law (Coleman & Underhill, 2012;Lukashuk, 2002; Marchenko, 2010; Tolstyh, 2009).

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Sustainable regional integration systems using thegoodwill of the participants take on a coordinating function.This allows the different countries to present themselves atthe global level as a united structure to protect their com-mon interests (Farhutdinov, 2005).

Immanuel Kant said that the Supra-state is a transitionalstage on the way to world peace. He upheld the standpointof a cosmopolitan ideal of norms operating independentlyof the State that limits (but does not destroy) the sover-eignty of the State (Malfliet, Timiriasov, Zdunov, & Sultanov,2004).

The legal sphere shows us strong integration processesand harmonization of the legal systems of different coun-tries, where uniform regulation is established. The mostinteresting experience of integration is the law of theEuropean Union. The union of states on the principle ofvoluntarism is not just a political union, but the integrationof economies. It is fair to say that the economy, through theintegration of business entities, involves other spheres ofpublic life (Kashkin, 2008). Nowadays, Russian doctrine ofregional integration more concentrates on the economicaspects of regional integration.

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1 “Dogovor o Tamozhennom sojuze i Edinom jekonomicheskom pros-transtve” (26 February 1999), Sobranie Zakonodatel’stva RF. 2001. No. 42.Art. 3983.

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The essence of the integration processes at the inter-national level suggests that, historically, the evolution ofintegration has occurred as part of basic steps, each ofwhich shows a certain degree of “economic maturity” – thefree trade area, customs union, common market, and eco-nomic union (Franca Filho, Lixinski, & Olmos Giupponi,2010; Nikolaeva, 2010). Within each stage two dialecticaltendencies co-exist – the desire of states not to lose theirsovereign identity and at the same time the desire to usethe supranational mechanisms for their own purposes.

The ultimate goal of all the steps on the way to inte-gration is the harmonization of domestic legal systems as ameans of ensuring the free movement of the factors ofproduction: goods and services, labor, investment, andfinance.

This result can be achieved only if the state transfersmuch of its competence to the organs of the economicintegration system. In the final analysis, harmonization andunification strengthen the methods of supranational regu-lation and, therefore, make it easier to control the wholeprocess of integration. In the course of regional integration,we can observe certain processes causing and revealing theessence of integration. First of all, the development of twoor more third-party relations between states throughtreaties. After that the expansion of direct economic re-lations follows, both between states and between trans-national or regional companies.

Supranational law is formed through the interaction ofinternational and domestic law of the states, forming thelegal superstructure that different authors define as eithertransnational law or supranational law (Vel’iaminov, 2004).

We need to notice that the integration processes in thelaws of the states as agents of integration formation showus the convergence process of unification, the introductionof common technical and legal standards. Supranationalunification of law is qualitatively different from interna-tional law. The basis of the supranational unification ofprivate law is the activity of authorized bodies of supra-national organizations which creates acts that come fromintegrated authorities such as European Union directives,decisions, and recommendations adopted by the executive,legislative and judicial branches of the integrated com-munity whose nature must be understood as supranationalstandardized acts (Rafaliuk, 2010).

Regional integration can be achieved by using a speciallegal regime that can function in the framework of inter-national regimes. In this article we speak about a regionalregime that concentrates on economic and political inte-gration. According to some experts, member states do nottransfer to the union the right to exercise power in theirplace, but provide limited authority to perform certainactivities instead (Ryzhov, 2006).

The process of integration acquires its institutional formthrough the mechanism of harmonization of nationallegislation, which can take many forms. All these measuresare related to the control of the implementation of andcompliance with the harmonized legislative and othernormative legal acts of the member states. For example, theAgreement on the Customs Union and Common EconomicSpace (signed in Moscow on 26 February 1999) states that“for the purposes of this Agreement the following terms and

expressions shall have the following meaning: the singleeconomic space – the space, of the Parties’ territories,wherethe same type of mechanisms to regulate the economybased on market principles and application of harmonizedlegal rules operate, there is a single infrastructure andcoordinated fiscal, monetary, foreign exchange, financial,trade and customs policies are implemented to ensure thefreemovementof goods, services, capital and the labor force”.1 As was rightly observed by N.G. Doronina, who carriedout detailed research on the effect of harmonization of lawand unification of the economy, the unification of lawshould be defined “as targeting the harmonious interactionof different legal systems and the interaction of the nationallegal systems that have already achieved a degree ofharmony” (Doronina, 1997).

Membership in the regional integration systems pro-vides different benefits to the members. Organizationswhich function as the institutional basis of integration arecomposed of different institutions with supranationalpower (and competence of subordinate order). This is themain purpose for establishing the international courts,which have a legal personality to form, interpret, and usethe law. By applying this integration law they guarantee thefunctioning of the unification law area. For example, inLatin America international courts are established in theframework of integration associations. The decisions ofthese courts provide a uniform formation, interpretation,and application of the law on the basis of their competence.The decisions of “integration courts” make unifying fea-tures through the formation of a legal space within theintegrated union (Rafaliuk, 2010).

The “law of integration” has elements which are man-ifested in the framework of integration formations; it can beattributed to the area of international law by defining itslocation in thegeneral partof international law (Vorontsova,2004).

As a result, on this background, we can see the devel-opment of the “law of economic integration” as a part ofinternational economic law (Efremova, 2008).

The example of failed regional integration based onCIS – model shows that that successful integration cannotbe obtained only by the political will of members. Inte-gration as a legal phenomenonwithout an adequate level ofeconomic development is impractical, both in general andin particular for its participants.

An important issue is how to regulate the functioning ofthe right of interstate association. In the first phase, themain defining tool for this is the constitution of each statethat is a party to such an association and internationallaw, but in the second phase it is the acts of interstateorganizations.

Under the generic term “international organization” weuse the term “interstate association” although in Russianlegal thought it is alleged that a separate group could besingled out by demarcating the following characteristics:interstate unions express a greater degree of integration of

2 Soglashenie o Tamozhennom soiuze mezhdu Rossiiskoi Federaciei iRespublikoi Belarus’ (6 January 1995) SZRF (1996), No. 45, item 5057.

3 Dogovor o Tamozhennom soiuze i Edinom ekonomicheskom pros-transtve (26 February 1999) SZRF, No. 42, item 3983.

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regional states by virtue of their historical commonality;the structure of international associations reflects a systemof institutions of the member states; they are characterizedby a higher level of imperativeness of interstate associa-tions’ acts and their impact on national legislation; andthey have the judicial institutions to resolve disputes andconflicting procedures (Vorontsova, 2004).

1.1. Practice of regional integration on a particular example(IPR)

An internal system of regional integration in the legalfield is a special level of legal integration that includesunification processes within the existing system with thesubordination to the common legal system, communica-tions, and legal principles (Potapenko, 2010). Anyway, wecan definitely say that members of EurAsEC chose the wayof integration based on the principles of EU integration. Forexample, regional integration based on EurAsEC model ismostly manifested in the areas where the supranationallegal system will be effective in protecting the economicinterests of each individual member. The issue of the pro-tection of intellectual property basically represents an im-mediate and urgent need for the early establishment of thesingle market for intellectual property rights (IPR) in theEuropean Community. Part of the problem of the protectionof intellectual property is the mechanism of its legal pro-tection that is as far as possible similar for allMember Statesof the European Community, since it has been observed byseveral experts that there is a tendency towards regionali-zation, i.e. cooperation of states by geographical principles,in the sphere of international scientific and technologicalcooperation (Valeev & Kurdiukov, 2010). Moreover, theEuropean Commission refers to this fact in its White Paper“Completing the Internal Market”.

There are two main legal forms of activity that lead toregional integration and as a consequence to the creation ofa single European market for IPR. The first form is theeffective work of the Court of Justice of the EuropeanCommunities. A number of judgments of the Court havealready been laid down for future decisions on a range offundamental problems in the legal protection of intellectualproperty. Court activity in this area has led to the secondlegal form: namely, unification and harmonization pro-cesses of EU institutions which have influenced the legalprotection of intellectual property. This activity has resultedin the adoption of a number of documents that have led tofurther improvements in legislation. In fact, unification andharmonization were the methods of overcoming the am-biguity in the legal regulation of intellectual property. Theperfect example is the so-calledGreenBooks, adopted in theperiod 1980–1990,whichhelped todevelop andput inplacea number of directives and regulations in the field of IPR byEuropean Union institutions (Eechoud, Hugenholtz, vanGompel, Guibault, & Helberger, 2009).

A significant step towards the integration of IPR withinthe Eurasian Economic Community (EurAsEC; also Com-munity) was the adoption of the Eurasian Patent Conven-tion, which was the basis for the creation of a commonpatent space and the main condition of establishing acommon market for IPR in the region (Eremenko, 2011).

Based on a principles of European Patent Convention,Eurasian Patent Convention show us the example of trans-plantation of European ideas on the Eurasian ground.Supranational bodies were established in EurAsEC just as inthe European Union. However, some authors criticize thevery ideaof the supranationalnatureof EurAsEC (Kembayev,2009). For example, while several experts highlight that inaddition to finance and the regime of national services theNorth American Free Trade Agreement (NAFTA) gives spe-cial attention to the management of IPR issues (Blandford,1995), Y.M. Yumashev, nevertheless, emphasizes, “TheUnited States have given up on supranational experimentsand by creating a North American free trade zone withthe rules of the GATT/WTO they, as the countries of theAsia-Pacific region, followed the suit of the traditionalinternational organizations, the functioning of which isbased on a principle of sovereign equality of member statesof interstate cooperation (Jumashev, 2006).

The measures to be taken to regulate private law re-lationships arising in the field of regional integration illus-trate common approaches towards regional integration andlead to the creation of a specific legal regime that regulatesthe circulation of capital within a particular region. Basedon this finding, it can be concluded that the process ofregional integration affects, through the harmonization andunification of the law, the creation of different institutionsof supranational organizations, especially in the economicsphere of regional communities. The rights of regionalcommunities gradually developing through regulation ofthe economic sphere have an effect on other aspects ofpublic life. The economic effects eliminate the political costsof integration and, therefore, the criterion of integrationeffectiveness is the degree of harmonization and unificationof rights of regional community members.

2. Practice of regional integration (executive,legislative and judicial bodies)

The example of regional integration in the post-Sovietarea is the history of Eurasian integration which began in1995 when the Agreement on the Creation of the CustomsUnion between Belarus and the Russian Federation wassigned.2 After some time Kazakhstan joined this Agree-ment. In 1996, these three countries established the Treatyon Enhancing Integration in Economic and HumanitarianSpheres, which was also signed by Kyrgyzstan. Three yearslater these countries, along with the addition now ofTajikistan, signed the Agreement on the Customs Union andCommon Economic Space.3

In 2000, these five countries created a new organization– EurAsEC – by signing the Treaty on the Creation of theEurasian Economic Community. This led to the creation ofdifferent Eurasian integration andworking institutions suchas the Interstate Council, which consists of heads of stateand heads of government, the Integration Committee and

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its secretariat, the Interparliamentary Assembly, and theCommission of Permanent Representatives. According toArticle 3 of the Treaty, the governing bodies of EurAsEC are:

� the Interstate Council� the Integration Committee� the Interparliamentary Assembly� the Court of Justice.4

The supreme body of EurAsEC is the Interstate Council.The Council is made up of the heads of state and heads ofgovernment of the member states.

2.1. “Executive” and “legislative” bodies of EurAsEC

The Council promotes the common interests of themember states of the Community, defines the strategy,directions and perspectives for developing integration, andtakes decisions aimed at implementing Community goalsand objectives. The chairmanship of the Council rotatesamong the member states, selected in Russian alphabeticalorder, for a term of one year. The main activity of theCouncil is approving resolutions on a consensus basis, andthese resolutions are implemented by the adoption of thenecessary national normative legal acts. The Council ap-points the chairman of the Integration Committee andoversees the Committee which is accountable to theCouncil in a number of matters.

The second main body of EurAsEC is the IntegrationCommittee. The Committee is a permanent body of theCommunity. The deputy heads of member states’ govern-ments represent their governments on the Committee toexamine key questions relating to various aspects of inte-gration, adopt resolutions within the limits of the Commit-tee’s authority, andprovide for the activities of theCouncil atthe level of heads of state and heads of government. Chair-manship of the Committee and Council is assumed accord-ing to the same principle: each member state of theCommunity can have its turn as chairman, rotated in theorder of the Russian alphabet, for a period of one year.

The Interparliamentary Assembly (IPA) of EurAsEC is theorgan of parliamentary cooperation. The Assembly consistsof deputies delegated by the parliaments of the memberstates of the Community that perform their functions inthe framework of the Community. The total number ofdelegates is 90:

� Belarus – 16 parliamentarians� Kazakhstan – 16 parliamentarians� Kyrgyzstan – 8 parliamentarians� Russian Federation – 42 parliamentarians� Tajikistan – 8 parliamentarians.5

4 Art. 3, “Dogovor ob uchrezhdenii Evraziiskogo ekonomicheskogosoobshhestva”, SZRF (2002) No. 7, item 632.

5 Polozhenie o Mezhparlamentskoi Assamblee Evraziiskogo ekono-micheskogo soobshhestva (23 June 2006), available at <http://www.evrazes.com/docs/view/15>.

The Chairman of the Assembly and his or her deputiesnaturally participate in the meetings of the Assembly.Members of the Assembly must be heads of parliament(chambers of parliaments) of Community member states.

Simply put, the Assembly’s main objective is to providethe legal basis for the Community. This can be done by theharmonization of the national legislation of Communitymember states. The main aim of this is to achieve the ob-jects and purposes of the Community.

2.2. EurAsEC Court of Justice

The Court of Justice is the official judicial body of Eur-AsEC that resolves legal disputes which arise betweenmember states and addresses matters related to Commu-nity law. An interesting fact is that from 3 March 2004 andfor a number of years thereafter the duties of the Courtwere carried out by another institution which is not a bodyof the Community – the Economic Court of the Common-wealth of Independent States (CIS). Only in November 2009did the Court of Justice begin to carry out its duties as theofficial judicial body of EurAsEC, and finally in July 2010 theCommunity made this clear when it adopted an amendedversion of the Statute of the Court of Justice of EurAsEC.

According to Article 8 of the Treaty on the Establishmentof the Eurasian Economic Community, there are four mainfunctions of the Court:

1. Consider the cases on conformity with the instrumentsof the customs union’s organs to international treatiesforming the legal framework of the customs union;

2. Consider the cases disputing actions (inaction) of thecustoms union’s organs;

3. Provide interpretation of international treaties formingthe legal framework of the customs union, and regula-tions adopted by the customs union’s organs; and

4. Settle disputes between the customs union Commissionand the member states of the customs union, as well asdisputes between the member states of the customsunion concerning fulfillment of their obligations un-dertaken within the customs union.

The Court has direct and indirect competence. Directcompetence can be affected by dispute resolution and in-direct competence by the control of norms that have beencreated by EurAsEC. The Statute states that the competenceof the Court can be enhanced through the procedure ofimplementing the provisions of other treaties that will beadopted in the framework of EurAsEC and the CustomsUnion.6

The jurisdiction of the Court includes the legal disputesthat take place between the governments of member statesof EurAsEC and between the governments and Commissionof the Customs Union (or the Eurasian Economic Com-mission).7 Another field of legal matters which the Courtdeals with is control of the norms for uniform

6 p. 5 Art. 13 «Statut Suda Evraziiskogo ekonomicheskogoSoobshhestva» (hereinafter Statut Suda), SZRF (2011), No. 38, item 5322.

7 podp. «g» p. 4 Art. 13 Statut Suda.

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interpretation of international treaties adopted by theCommunity and also the decisions of Community in-stitutions.8 There are two types of such control of thenorms: preliminary and subsequent.

Preliminary control of the norms is possible only in thenational high courts of governments – members of theCustoms Union and Common Economic Space (CUCES) –

which can send a prejudicial request directly to the Courton the question of the application of the internationaltreaty in the case. Prejudicial request is a form of controlthat prescribes stopping the litigation at the national courtlevel until the Court gives its official decisionmandatory fornational courts.

Subsequent control has the following two forms: first,interpretation of Community law that has a recommen-dation character as consultative conclusions and analysisof the acts of CUCES; and, second, analysis of the acts ofCUCES to the international treaties of CUCES and decisionsof the Court. This means that if the Court receives a peti-tion regarding the annulment of a Community act, it de-cides the suitability of the act to the international treatiesof EurAsEC and CUCES. Any discrepancy divides into threetypes: lack of competence of the institution, wrong pro-cedure of enactment of the act, and the misuse of supra-national power. If any of these infringements takes place,then it could be said that the act is void.9 Subsequentcontrol also covers the petitions from economic entitiesthat challenge the activity or inactivity of the institutionsof CUCES.10 However, these petitions are accepted by theCourt after they have first been made to the Commissionof the Common Economic Space. That is why we can saythat the control of the norms that are adopted in theframework of EurAsEC is a function reserved only to theCourt. The Court’s decision is definitive; if any subject doesnot execute it, it is possible to request of the Court topetition the High Eurasian Council.11

2.2.1. Present and future prospects of EurAsEC-model ofregional integration

In 2008, three states – Belarus, the Russian Federation,and Kazakhstan – decided to create a customs union basedon EurAsEC, and in 2010 they officially formed the CustomsUnion. Also in 2010, the entry into force of the treaty titledthe Customs Code of the Customs Union signed betweenthe same states resulted in the adoption of a unified cus-toms tariff which canceled a wide range of internal pro-tective measures. Then on 9 December 2010, the threemember states further declared they wished to go forwardwith plans for creating a unified and harmonized economicmarket, which included the idea of creating a supranational

8 p. 1 Art. 13 Statut Suda; Art. 3 «Dogovor ob obrashhenii v Sud Evra-ziiskogo ekonomicheskogo soobshhestva hoziaistvuiushhih sub”ektov posporamv ramkahTamozhennogo soiuza i osobennostiah sudoproizvodstvapo nim i Statut Suda Evraziiskogo ekonomicheskogo soobshhestva», 9December 2010, No. 534 (hereinafter Dogovor ot 09.12.2010), SZRF (2011),No. 30, item 4581.

9 Art. 11 of «Decision Mezhgosudarstvennogo Soveta EvrAzeS ot09.12.2010 N 534», available at<http://www.evrazes.com/docs/view/22>.10 Art. 2 Dogovor ot 09.12.2010, Art. 13 Statuta Suda.11 p. 2 Art. 20 Statut Suda, Art. 12 Dogovora ot 09.12.2010.

organization. EurAsEC was also actively involved in thisprocess by adopting several decisions.12

Following twoyears of negotiations–which included thesigning of the treaty creating the Common Economic Spacewith the goal of using the potential of CUCES – Belarus, theRussianFederation, andKazakhstan approved their plans on19 March 2012 by deciding to establish the Eurasian Eco-nomic Union (EAU) in 2015. The creation of the EAUmeansthat the participants will adopt a unified codified treaty.

On 1 January 2012, the Eurasian Economic Space (EES)began functioning. Comparing this new organizationalapproachwith others between the former CIS countries, wecan say that it shows a totally different phenomenon: themember states have chosen the new form of integration –

the creation of a supranational organization. The EES createsa zone which promotes the free movement of goods, ser-vices, labor, and capital as well as the harmonization andunification of industrial, financial, tax, and investment pol-icies. The structure of the EESwill change on 1 January 2015when it will be represented by a Parliamentary Assembly, aHigh Eurasian Council, a Eurasian Economic Commission,and a Eurasian Court. The functions of these institutionswillbe detailed in the treaty on the creation of the EAU.

While there is agreement on the status of the Court ofJustice of EurAsEC, in spite of its dualistic nature in that theCourt functions with respect to both EurAsEC and CUCESacts, there is no definite, common position on the EurasianCourt – it will be the successor either of the Court of Justiceof EurAsEC or of the Economic Court of the CIS. In Russianlegal studies, Neshataeva takes the position – successor ofthe Court of Justice of EurAsEC (Neshataeva, 2012) andShinkaretskaya the position – successor of the EconomicCourt of the CIS (Shinkaretskaya, 2012).

3. Conclusion

Today, in the words of the General Secretary of theEurasian Economic Community, EurAsEC is one of the “threepillars”, the other two being the Conference on Interactionand Confidence Building Measures in Asia (CICA) and theShanghai Cooperation Organization (SCO) (Mansurov,2012). Because the evaluation of different organizationshas taken place in closed relationships, we can see anexample analogous to amulti-speed Europe– amulti-speedEurasia. We cannot agree with an opinionwhich postulatesthat re-Sovietization of Eurasia is related to EurAsEC activ-ity.Moreover,we agreewith Z. Kembayev that EurAsEC is anorganizationwhich “lacks the possibility to issue any kind ofdecisions” to themember states (Kembayev, 2009). Becauseof its lack of supranational powerwe can say that EurAsEC is

12 “O vstuplenii v silu mezhdunarodnyh dogovorov, formiruiushhihEdinoe iekonomicheskoe prostranstvo Respubliki Belarus’, RespublikiKazahstan i Rossiiskoi Federacii”, Decision (19 October 2011) No. 100,available at <http://www.evrazes.com/i/data/item7583-2.pdf>; “O pro-ekte Deklaracii o formirovanii Evraziiskogo ekonomicheskogo soiuza”,Decision (23 September 2011) No. 803, available at <http://www.evrazes.com/i/data/item7575-2.pdf>; “O hode vypolneniia plana deistvii po for-mirovaniiu Edinogo iekonomicheskogo prostranstva Respubliki Belarus’,Respubliki Kazahstan i Rossiiskoi Federacii”, Decision (18 October 2011)No. 813, available at <http://www.evrazes.com/i/data/item7576-2.pdf>.

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an international organization more economically orientedthan politically oriented. In any event, we can say that theplans to create the EAU are successful, so the evolution of aEurAsEC-based model of Eurasian integration will be aninteresting experience with supranational authority estab-lished on the basis of the economic interests of Eurasiancountries.

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