CC BY
17Law and Globalisation / Право и глобализация
УДК 341
DOI 10.37399/2686-9241.2020.3.62-85
Eurasian Integration: General Values and Legal Institutions
Tatyana N. Neshataeva*
* Court of the Eurasian Economic Union, Minsk, Republic of Belarus For correspondence: [email protected]
Introduction. The article is devoted to the analysis of the civilisational foundations and features of Eurasian integration, their reflection in the charter documents and the practice of the Court of the Eurasian Economic Union. The author describes cultural integrity, including religion. Teoretical Basis. Methods. Specifically, in the modern world, the author distinguishes four civilisations: Christian, Sinic, Indian, and Muslim. Russia (the pivotal state of the Eurasian integration under discussion) is a poly-civilisational state, because its culture is based on historical multinationality, multiconfessionality, and multiculturalism. The basis of Russian law is Christian values (for example, the rule of law), but elements that derive from Islam (the "rule of power"), and Buddhism (the protection of natural connections) are also very important. The article uses empirical methods of comparison, description, interpretation, theoretical methods of formal and dialectical logic.
Results. The author shows that compared with European integration, Eurasianism is based on slightly different values, namely: 1) the rule of law as a formal order; 2) collectivism and collegiality - the special significance of the rights and interests of an indefinite circle of persons in comparison with individual ones; 3) the priority of natural relationships in the group. The Eurasian Economic Union (EAEU) is an international organisation of a supranational type. In its statutory documents the religious and civilisational peculiarities characteristic of Eurasianism were also taken into account. The principles of international law (as the super-imperative norms of jus cogens) have priority in application, but differ in special content, namely: 1) respect for the sovereign rights of states; 2) equality of states, which are implemented not formally, but taking into account economic reality, and; 3) the principle of pacta sunt servanda. Specifically, the EAEU Commission and the corresponding Court are created to monitor compliance with the treaties. The court also has peculiar features: 1) In the documents the principle of independence of judges is especially emphasised (the chairman is the first among equals); 2) the relations of the Court with the national courts of the Member States of the Union are built in a special way: they take the positions of the Court in their practice on a voluntary basis. The international court of a supranational union is mainly aimed at overcoming dualism - duality in the law of integration association. This creates a uniform understanding of the norms of union law, which cannot be reduced only to the positive component that the court corrects with the natural essence of law - the protection of human rights. The author gives examples of problems encountered in building the EAEU: 1) the ratio of the principle of pacta sunt servanda and the principle of national sovereignty; 2) the principle of equality in its real, not formal essence.
Discussion and Conclusion. The EAEU takes into account both the principles of Christian civilisation (respect for law), and the principles of other civilisations (for example, respect for power and the principles of harmonious construction of relations within the Union - multiculturalism). It is important for the Court to find a balance between activism and conservatism both in resolving international conflicts and in interpreting law. So, activism in the EAEU Court is manifested in human rights issues, and conservatism: in matters of monitoring the activities of the Commission. An important problem is the balance in ethical issues, which is associated with
© Нешатаева Т.Н., 2020
the multiconfessional composition of the Eurasian court. The author concludes by noting that in a situation where the requirements for the appointment of judges are blurred and there is no verification mechanism, it is difficult for the international composition of the Court to find ethical consensus.
Keywords: civilisation, religion, Eurasian integration, supranational organisation, Eurasian Economic Union, Court of the Eurasian Economic Union, international justice, principles of selection of judges, rule of law, sovereign equality, natural law, principles of law
For citation: Neshataeva, T.N., 2020. Eurasian integration: general values and legal institutions. Pravosudie/Justice, 2(3), pp. 62-85. DOI: 10.37399/2686-9241.2020.3.62-85.
Евразийская интеграция: общие ценности и правовые институты
Т.Н. Нешатаева*
* Суд Евразийского экономического союза, г. Минск, Республика Беларусь
Введение. Статья посвящена анализу цивилизационных основ и особенностей евразийской интеграции, их отражению в уставных документах и практике Суда Евразийского экономического союза.
Теоретические основы. Методы. Под цивилизацией автор понимает культурную целостность, включающую и религию. В современном мире автор выделяет четыре цивилизации: христианскую, синскую, индийскую, мусульманскую. Россия (стержневое государство евразийской интеграции) - это государство-полицивилизация, потому что ее культура основана на исторической многонациональности, многоконфессиональности, многокультурности. Основой права России являются христианские ценности (например, верховенство права), но очень большое значение имеют элементы, которые происходят от мусульманства («верховенство власти»), буддизма (защита естественных связей). В статье используются эмпирические методы сравнения, описания, интерпретации, теоретические методы формальной и диалектической логики.
Результаты исследования. По сравнению с европейской интеграцией в основе евразийства находятся несколько иные ценности: 1) господство права как формального приказа; 2) коллективизм, соборность - особое значение прав и интересов неопределенного круга лиц по сравнению с индивидуальными; 3) приоритет естественных связей в группе. Евразийский экономический союз - международная организация наднационального типа, в ее уставных документах были учтены и конфессионально-цивилизационные особенности, характерные для евразийства. Принципы международного права (как сверхимперативные нормы jus cogens) имеют приоритет в применении, но отличаются особым наполнением: 1) уважение суверенных прав государств; 2) равенство государств, реализуемое не формально, а с учетом экономической реальности; 3) принцип pacta sunt servanda: для контроля за соблюдением договоров созданы Комиссия и Суд.
Суд также имеет своеобразные черты: 1) в документах особо выделяется принцип независимости судей (председатель первый среди равных); 2) особым образом выстраиваются отношения Суда с национальными судами государств - членов Союза: позиции Суда они принимают в своей практике на добровольной основе.
Обсуждение и заключение. В ЕАЭС учитываются как принципы христианской цивилизации (уважение к праву), так и принципы иных цивилизаций (уважение к власти), принципы гармоничного построения отношений внутри Союза (многокультурность). Международный суд наднационального союза главным образом нацелен на преодоление дуализма, двойственности в праве интеграционного объединения, создание единообраз-
ного понимания норм права союза, не сводящегося лишь к позитивной составляющей, которую суд корректирует естественной сутью права - защитой прав человека. Автор приводит примеры проблем в построении ЕАЭС: 1) соотношение принципа pacta sunt servanda и принципа национального суверенитета; 2) принцип равенства в его реальной, а не формальной сущности.
Суду важно найти баланс между активизмом и консерватизмом как при разрешении международных конфликтов, так и при правотолковании. Так, активизм в Суде ЕАЭС проявляется в вопросах прав человека, а консерватизм: в вопросах контроля деятельности Комиссии.
Важная проблема - равновесие в вопросах этики, что связано с многоконфессионально-стью состава евразийского суда. В ситуации, когда требования к назначению судей размыты и отсутствует механизм проверки, международному составу Суда сложно найти этический консенсус.
Ключевые слова: цивилизация, религия, евразийская интеграция, наднациональная организация, Евразийский экономический союз, Суд Евразийского экономического союза, международное правосудие, принципы отбора судей, господство права, суверенное равенство, естественное право, принципы права
Для цитирования: Нешатаева Т.Н. Евразийская интеграция: общие ценности и правовые институты // Правосудие/Justice. 2020. Т. 2, № 3. С. 62-85. DOI: 10.37399/26869241.2020.3.62-85.
Civilisation Distinctions
T he history of mankind represents the development of civilisation. Samuel Huntington (who also referred to other authors) wrote that "civilisation is a cultural entity", and "...civilization is a culture writ large". Both of these concepts include "values, norms, institutions, and modes of thinking to which successive generations in a given society have attached primary importance. Wallerstein defines it as "a particular concatenation of world-view, customs, structures, and culture (both material culture and high culture) which forms some kind of historical whole and which coexists (if not always simultaneously) with other varieties of this phenomenon". Of all the objective elements which define civilizations, however, the most important usually is religion. To a very large degree, the major civilizations in human history have been closely identified with the world's great religions. [...] The crucial distinctions among human groups concern their values, beliefs, institutions, and social structures". [Huntington, S., 1996, pp. 41-42].
"A civilization is thus the highest cultural grouping of people and the broadest level of cultural identity people have short of that which distinguishes humans from other species. It is defined both by common objective elements, such as language, history, religion, customs, institutions, and by the subjective selfidentification of people" [Huntington, S., 1996, p. 43].
Civilisational social institutions include law and the state. Civilisation affiliations define the basic features of states - which are the main subjects of international law. The diversity of civilisation differences between peoples leads to the fact that nowadays any universalisation on the basis of a single civilisation is impossible - but this does not exclude its appearance in the future.
Moreover, we must agree with Edward Mortimer that nowadays instead of the ideological foundations of civilisation - religious and other forms of cultural identity are taking their place. Religion "increasingly intervenes in international affairs" [Mortimer, E., 1991, p. 7]. Therefore, the institutes of the state and law which are gnoseologically connected with the identity of the nation reflect or should reflect this civilisational unity of culture and legal institutions.
In the modern world there are four civilisations although some authors select from six to twelve civilisations [Frolov, E.D., 2006, p. 98]. At the same time each of them includes core states and other states, including elements of several civilisations (cleft countries).
1. The Christian civilisation which is separated into western and east. Today the embodiment of western Christianity are the countries of the Anglo-Saxon circle and the French-German hub, and eastern Christianity -Russia.
2. The Sinic civilisation embodied in China which includes Confucianism, Taoism, Buddhism, etc.
3. The civilisation of India encompassing Hinduism, Buddhism, etc.
4. The Muslim civilisation which has no core country now (but before that it was the Ottoman Empire) which nowadays generates such negative phenomenon as militant Islam aiming at creation of a new entity - the Islamic State.
The core state provides the function of saving of civilisation values and is obliged to protect other countries that are part of the civilisational group, but have a complex two- or multicomponent civilisational structure ("the cleft country" in the terminology of sociologists [Huntington, S., 1996, p. 137]). Besides, the states responsible for several civilisations (poly-civilisations) are distinguished.
In this sense Russia is a poly-civilisational state because its culture is based on historical multinationality, multi-confessionality, and multicul-turalism. Many wrote about this historical development, and the most diverse (from conservative to "activist" [Karamzin, N.M., 1816-1829; Klyu-chevsky, V.O., 1987-1990; Gumilev, L.N., 1989]) were the historians who emphasised that historically Muscovite Russia differed from Kievan Rus in that it allowed various civilisations to peacefully exist on its territory with the predominant role of the standards of Eastern Christianity. In other words, multiculturalism is the basis of the Russian polycivilisation.
Hence, the basis of Russian law is, first of all, Christian values, including those that, by tradition, are mistakenly attributed only to the "western" ones - primarily the rule of law. Given the origin of Russian law from Roman law, it should be emphasised that the rule of law is also the basis of Russian legal institutions. But the value basis of Russian law is not limited to these - the other elements that come from Islam, Buddhism, etc. are also very important.
Three features can be distinguished in the Russian legal system, the coexistence of which distinguishes it from any other legal system:
1) A respect for the law, more precisely, the law and the struggle (sometimes uncompromising) for law [Zweigert, K., and Kotz, H., 2000, p. 429]. In this Russia is very similar to the states of Western Christianity, the difference is noticeable only to the extent that is included in the concept of "law"1.
2) At the same time, a strong respect for the authorities is embedded in Russian law [Kischel, U., 2015, pp. 577-580.]. Outwardly, this is similar to Hegel's concept [Nersesyants, V.S., 2005, pp. 503-507], and those of other Western theorists. Similar philosophical foundations exist in Western culture. But our respect for power is slightly different and more similar to what is inherent in Sinic and Muslim cultures. This can also be defined as the "supremacy of power".
A similar attitude to the power institutions is connected with the dual idea of Russian identity, the foundation of which is laid by the philosophy of Eurasianism and Gumilev [Laruzel, M., 2000, pp. 5-18]. That is, in Russia such an attitude to power comes from Confucianism and Islam - it is rather not respect for power, but rather submission to power [Weiss, B.G., 2008, p. 205; Berg, L.V.S. van den, 2005, pp. 182-190]. Thus, in Russia there is a dualism of the rule of law and power. Accordingly, institutions regulating social relations are affected by such dualism. Consequently, legal provisions must contain mechanisms to overcome dualism in favour of the rule of law.
3) Protection and respect for natural ties - such as families, relatives (clan, etc.) are laid down by Buddhism [Nersesyants, V.S., ed., 2004, pp. 28-29]. Protecting the interests of "blood" is also the foundation of our civilisation.
In a certain sense, the Russian centuries-old civilisational peculiarities leads to the idea of non-resistance, the ability to adapt to circumstances, including circumstances of power. L.N. Tolstoy wrote much about this. Tolstoy believed that patience was our main feature that distinguishes eastern Christianity from western.
Basically, Russia, of course, is a clear component of Christianity. It is close to Western states, but such elements as the attitude to power and the primacy of natural ties are the result of the multi-vector nature of the elements that make up the Eastern Christian culture.
Europeanism and Eurasianism
It is universally recognised that European values, sourced from the foundations of European Western civilisations, are the foundation of
1 For similarities and differences between the Romano-Germanic and socialist legal systems, see: [De Cruz, P., 1999, pp. 186-189].
European integration. It is clear that the cultural community facilitates cooperation and unity in the fields of politics, economics, social relations. That is, it is the basis of civilisational integration (from the Latin word integratio meaning restoration, replenishment, or the process of uniting parts into a whole). Europe is still a multinational space, but it is impossible to deny that at present there is now a common concept - a "European" concept, based on common cultural values.
Joint European values include:
1) the rule of law as a regulator of all relations inherited from the Romans. This is best expressed by the Latin phase - "non subhomine, sed sub Deo et lege", meaning not under a person, but under the Lord and the law;
2) individualism - the priority of individual rights and freedoms over collective rights (based on the ideas of the early European Renaissance);
3) social pluralism - the creation of diverse autonomous groups that are not based on consanguinity or marriage (based on the division of medieval European society into professional guilds).
All these root features of Western civilisation have influenced both the development of Western states and their integration, which currently has the shape of the European Union. It should be noted that Western civilisation has traditionally implanted its values with fire and sword - ranging from the Crusades to world wars. As a result, some of them - notably the rule of law and individual rights (today known as "human rights") - are gradually becoming universal values and, possibly, will serve to create a universal civilisation. there is no other way for mankind, for the result of war is surely ash, but the ashes of the West and the ashes of the East cannot be distinguished.
However, at present there is a world of polycentric civilisations, which generates not only the cooperation of states, but also conflicts between them.
Moreover, in Europe there was more than one civilisation (in the geographical sense, Europe is a single continent from the Atlantic to the Pacific Ocean). Along with European integration, Eurasian integration has long been formed2. Eurasianism is based on slightly different values.
1) We will also put the rule of law in first place, since it is impossible to deny the connection with the Roman tradition in the countries of the Eurasian Economic Union. It is another matter that the content of this concept in detail may have its own specifics, especially with regard to the connection of power and law, understanding of law as a formal order.
2) Collectivism and collegiality - the rights and interests of an indefinite number of persons, in comparison with individuals in Euro-Asian cultures, were of particular importance3. Traditionally, the protection of common
2 The experience of the Russian Empire, as well as the USSR, in the development of Eurasianism, should be taken into account - these were also forms of integration
3 Refer: [Lazarev, V.V., 2001]. "There is a collective responsibility of all people for everyone, everyone for the whole world, all people are brothers in misfortune, all
rights has been more important than the protection of the individual (this was associated with the territorial features of these countries: space, steppe, low temperatures - and the ability to survive based like a family by being together). However, we emphasise that this form of protection of collective rights as a universal value has influenced the development of universal human rights in their social aspect.
3) The priority of natural relationships in the group. At the same time, in Eastern Christianity, Islam, and Buddhism, special importance was attached to family and family ties. These included the sanctity of marriage, the culture of cohabitation, the support of relatives, respect for elders, the protection of minors, etc.
Thus, it is easy to see that the values of the core state of Eastern Europe -Russia - and the values of Asian states are largely similar, which allows us to highlight the common cultural code of Eurasian integration.
Collectivism and the support of natural-biological ties are the main values of Eurasian integration that distinguish it from European integration, which, however, does not affect the legal form of this integration. It also has four degrees (in ascending order: free trade zone, customs union, common market, and economic union). Eurasian integration of 25 years of modern development has existed since 2015 in the current form - the Eurasian Economic Union (EAEU).
When creating a new international legal integration association, it was necessary to take into account both the specifics of the civilisational component of the states that make up the EAEU and the special role of the polycivilisation core state of this integration - the Russian Federation, which carries the code of several modern civilisations (Eastern Christianity, Islam, Buddhism and Sinism).
Legal Registration of Eurasian Integration
Externally, the EAEU looks very similar to the European Union [Kapus-tin, A.Ya., 2015] - the first supranational organisation in Europe.
States give a supranational organisation, (unlike other international organisations), part of their rights. That is, a supranational organisation can make its decisions independently of member states, and these decisions are legally binding on those states. In European law, supranationalism is understood as "the constitutional advantage of the public power of a community over state power" [Thiemeyer, G., 1998, pp. 5-6]. Consequently, a supranational organisation also becomes an independent political actor in the international system, at least in those areas that are within its competence.
people participated in original sin, and everyone can be saved only together with the world" [Berdyaev, N.A., 1989, p. 190].
Many international studies highlight the characteristics inherent in supranational organisations [Etzioni, A., 2001]. The President of the Court of the EU, K. Lenaerts, identifies the following essential features of such an organisation: 1) the existence of institutions that are independent in composition and operation, 2) the use of majority decision-making procedures, which are nonetheless binding on all Member States, 3) the implementation of EU decisions by EU institutions or under their control, and (4) the creation of rights and obligations with judicial protection through treaties and acts of secondary law [Lenaerts, K. and Nuffel, P. van, 2005, pp. 11-18]4.
The EAEU Court agreed with this approach to supranationalism, defining it as a) transfer of competence to a common body and b) the creation of unified rules binding on the territory of the member states5.
But the EAEU is different from the EU, because in the constitutional documents of the new Union, in addition to taking into account the peculiarities of European law, the confessional-civilisational features characteristic of Eurasianism were also included.
Firstly, the documents clearly state that the new Union is subject to international law and will develop according to the principles and rules of international law, and not national law. All other rules of the EAEU law are based on this postulate - that is regulatory rules arise from the international legal system.
Citing the corresponding provisions as an example - the tenth paragraph of the preamble of the Treaty on the EAEU (hereinafter referred to as the Treaty) states: "affirming its commitment to the purposes and principles of the Charter of the United Nations, as well as other generally recognised principles and norms of international law".
Further - paragraph 2 of Art. 1 of the Treaty: "The Union is an international organisation of regional economic integration with international legal personality".
Further - Art. 3 of the Treaty: "The Union shall carry out its activities within the competence granted to it by the Member States in accordance with this Treaty, on the basis of the following principles: respect for the universally recognised principles of international law, including the principles of sovereign equality of Member States and their territorial integrity".
Secondly, in the statutory documents of the EAEU Court it is precisely written that the principles of international law (jus cogens) take precedence over all other norms. According to paragraph 50 of the Statute of the Court, the Court applies, first of all, universally recognised principles and norms
4 Cit. by: [Goebel, R., 2013, pp. 82-83].
5 The advisory opinion of April 4, 2017 on the request of the Republic of Belarus for the clarification of the Treaty on the Eurasian Economic Union of May 29, 2014.
of international law, and the Treaty, other international treaties, decisions of Union bodies and other norms are subordinate to the principles6.
On the other hand, the principles also have a special content.
First, they emphasise respect for the sovereign rights of states and clearly outline the borders beyond which the Union as a subject of international law cannot go (refer for example to the third paragraph of the preamble to the Treaty: "Guided by the principle of sovereign equality of states, the need to unconditionally respect the principle of supremacy of constitutional rights and freedoms of man and citizen". Further, Art. 3 of the Treaty states: "The Union shall carry out its activities within the competence granted to it by the Member States in accordance with this Treaty").
Secondly, they place emphasis on the fact that the Union is built on the basis of the principle of equality of states (third paragraph of the preamble to the Treaty; Article 3 of the Treaty). However, it is not implemented formally, but takes into account the real situation measured in economic categories. Depending on the size of the economy, each member state receives as much as it invests in the budget of the Union. For example, according to Art. 26 of the Treaty, paid (collected) import customs duties are subject to crediting and distribution between the budgets of the Member States. The standards for the distribution of the amounts of import customs duties for each member state are established by paragraph 12 of the Protocol on the procedure for crediting and distribution of the amounts of import customs duties (other duties, taxes and fees having equivalent effect). They are transferred to the income of the budgets of the Member States (Annex No. 5 to the Treaty) in the following amounts: Republic of Armenia - 1.22%, Republic of Belarus - 4.56%, Republic of Kazakhstan - 7.055%; Kyrgyz Republic - 1.9%; Russian Federation - 85.265%. That is, the core character of the Russian economy is emphasised.
Further, this provision is reflected in the norms on the distribution of posts in the bodies of the Union. According to paragraph 3 of Art. 9 of the Treaty, the selection of candidates for positions in the departments of the Eurasian Economic Commission (except for officials) is carried out by the Commission on a competitive basis, taking into account the participation of the Parties in the financing of the Commission. According to paragraph 35 of the Statute of the Court, the Secretariat of the Court is formed on a competitive basis, taking into account the participation of member states in the budget of the Union from among citizens of member states. Thus, in the apparatus of the EAEU and the Court, most of the posts are assigned to citizens of the Russian Federation.
6 We emphasize that in the EU there are no such definitions; The principles in the EU are formulated independently by the authorities, which makes the functioning of the EU similar to the state. This is the reason for the discussion about the ways of the EU development to a single state formation.
Thirdly, the principle of "pacta sunt servanda". To monitor compliance with the treaties, permanent bodies of the Union have been created - the Commission and the Court, which are supranational in nature - which have the same competence delegated to them by the Member States and adopt acts binding on all bodies and persons, including regulatory decisions.
The Eurasian Economic Commission creates regulatory rules (rules of the EAEU law), and the Court ensures that these rules a) are applied uniformly and b) do not contradict the goals and principles of the Treaty7.
EAEU Court - Permanent Judicial Body of the Union
The EAEU as an international organisation was created on a two-tier basis. There are two governing bodies - the Supreme Eurasian Economic Council and the Eurasian Intergovernmental Council - both are bodies of an international organisation of a traditional type and work on the basis of coordination of wills (decisions are made by consensus). The EEC and the Court are supranational bodies composed of professional international servants and judges who are not subordinate to their states8. These bodies operate using the principle of a majority vote. It should be emphasized that the EAEU does not use a balanced vote (in which the number of votes depends on the contribution of a member state, the principle which is used, for example, in the IBRD, IMF and other organisations of a supranational type). This may be a way to balance the principles of harmonisation of wills and supranational standard setting.
The Court also has peculiar features: the Union's documents emphasize the principle of independence, which is implemented by taking into account the civilisational characteristics of the countries that are members of the Union, where power is often expressed in excessive form. Based on this, the Statute of the Court emphasizes that the President is the first, but not the main judge. All important issues of organizing the activities of the Court are decided by all judges together (in harmony, by agreement - that is by a common opinion). The power of the President is limited by paragraph 20 of the Statute of the Court, according to which "judges in the administration of justice are equal and have the same status. The President of the Court and his deputy shall not be entitled to take actions aimed at obtaining any undue advantage over other judges". This provision is reinforced by paragraph 21 of the Statute of the Court, which is designed to prevent a conflict of interests, including in terms of expanding authority: "A judge, both in the exercise of his powers and in extra-judicial relationships,
7 In these two parameters, the EU and the EAEU have similar features.
8 Paragraphs 2 and 3 of the Regulation on social guarantees, privileges and immunities in the Eurasian Economic Union (Annex No. 32 to the Treaty); Paragraph 18 of the Statute of the Court.
must avoid a conflict of interest, as well as anything that may belittle the authority of the judiciary, the dignity of a judge or raise doubts about its objectivity, justice, and impartiality". The latter applies to both justice and organisational matters.
In the statutory documents, the Court's relations with the national courts of the Member States of the Union are constructed in a special way. The Court cannot give them instructions (as such things can be done by for example the activities of the Court of Justice of the European Union and the ECHR), but the EAEU Court can provide advisory opinions whose positions, as well as the positions of legally binding decisions, national courts take in their practice on a voluntary basis9.
It was indicated above that the rule of law, the lawful decision, is characteristic of modern law. Without denying this, it should be emphasised that in the Sino-Muslim traditions it is considered more important to come to an agreement, persuade, "save face", or fulfill the agreement using different and important components of Asian culture. Hence, not an order, but a convincing persuasion becomes an effective way of communicating with other courts, including national ones10. Perhaps, for this reason, the acts of the Court are being executed and the need for recruiting coercion has not yet arisen.
It should also be noted there is an institution of a settlement agreement, which gives the parties the opportunity to resolve the dispute at any stage of the proceedings (paragraph 67 of the Statute of the Court). This corresponds to the tradition of negotiating in contentious situations.
Thus, the documents took into account both the principles of Christian civilisation (the respect for law) and the principles of respect for national authorities (the respect for power) and the principles of harmonious building of relations within the Union (multiculturalism). The latter includes taking into account the economic basis and making major decisions by consensus. In the activity of the Court, this is manifested in the majority decision, but with the opportunity to present the separate opinion of a judge (who does not agree with the majority opinion), to any judicial act. (Perhaps the emergence of the institution is directly related to the development of individual rights in their Western Christian interpretation).
9 The mechanism of coercion or enforcement to take the court's positions is also different: in the EU, these are penal sanctions; in the EAEU - the decision of the Supreme Eurasian Economic Council on the need to comply with the order of the Court.
10 Refer to Resolution of the Plenum of the Supreme Court of the Russian Federation of May 12, 2016 No. 18 "On Certain Issues of the Application of Customs Legislation by Courts" (http://www.supcourt.ru/documents/own/8491/), which establishes the need to take into account the positions of the EAEU Court in resolving disputes within the framework of national jurisdiction.
Application of Eurasian Law
Article 6 of the Treaty lists the positive norms of Eurasian law, which, however, does not cover its entire scope, the boundaries of which are set forth in paragraph 50 of the Statute of the Court. Article 6 of the Treaty and paragraph 50 of the Statute of the Court (annex to the Treaty) together they formulate two parts of Eurasian law - positive and natural.
From this picture, one might get the impression that new objective economic relations are regulated by old legal mechanisms. But a different path is impossible. Law is more conservative than the relations regulated by it, because it adapts only to those innovations that will line up in a permanent system and will need legal registration. Such legal registration is born slowly, legal discoveries occur much less frequently than in other areas of human knowledge [Kasenova, M.B., 2015]. Hence the widespread use of the method of adapting well-known legal forms to new phenomena. For example, the inventions of ancient Rome lawyers still apply in private relations [Kofanov, L.L., 2015], while the discoveries of ancient Greek philosopher lawyers apply to public law [Nersesyants, V.S., 2005].
In many respects, this situation is due to the fact that the main task of legal regulation is related to the need to take into account the natural origins of social (human) relations when solving the rational tasks of the current moment of development of a society registered in the state. The solution to this problem is incredibly difficult. It is necessary to overcome the dualism of law, expressed in the existence of "natural" legal institutions -norms that arise in the usual way (from practice) taking into account the moral requirements of society (justice, good faith, equality, etc.), and positive norms established by the authorities (church, state, international). It is well known that law, which arose as natural genetically determined standards of human behavior, with the strengthening of statehood, was widely developed through positive regulation. However, the excessive development of positive law is fraught with the emergence of illegal regimes in the form of autocracy, tyranny, despotism, etc. In other words, the excessive dissemination of positive norms leads to an increase in the lack of freedom, and, therefore, slows down the natural development of society. The latter is overcome only by the supremacy of natural law - the norms developed by society and expressing the measure of freedom of everyone among others over the positive regulations of the authorities. Dualism is the nature of the development of law. Moreover, the development of natural law is associated with a deepening of knowledge about the nature of man. Hence, law in its nature is as naturally biological as human itself is biological, and in its development is subject to natural, and not just strong-willed, laws.
It should be noted that such an approach is characteristic of European, rather than Asian mentality - which is traditionally obeying the order of the
power. However, the statutory documents are based on the European reading of the law.
In the preamble to the Treaty, as well as in the Statute of the Court (paragraph 50), the Court received the authority to use not only positive norms, but also both parts of the legal regulation. These are natural (principles, customs) and positive (contracts, decisions of the body), creating obligatory and recommendatory legal positions aimed at developing the EAEU law in both natural and positive forms [Neshataeva, T.N., 2017]. At the same time, it should not matter to the Court whether its legal position is contained in a recommendatory or mandatory form, because its binding is characterised only by the formalisation of coercion applied by the authorities, while the recommendatory position appeals to the moral power not only of the public authority, but also to the entire civil society (entrepreneurs, mass media, science, international and state bureaucracy, etc.). Often this moral force is more effective than public authority in a legal society. For this reason, many researchers consider soft law, laws of a recommendatory nature, as a rational way of developing modern law [Prodi, P., 2017, p. 482], especially international [Kolodkin, R.A., 1986].
The international court of the supranational union is mainly aimed at overcoming dualism, duality in the law of integration association, and creating a uniform understanding of the Union's law - which cannot be reduced only to the positive component that the Court corrects with the natural essence of law - protecting of human rights.
The solution of such a problem is the goal of any international court since the time of Hugo Grotius, who, being the founder of the international legal doctrine in its modern sense, was the first to integrate both the norms of natural origin and the norms of positive establishment into the concept of a legal system. This was by leaving primacy as the first priority and labelling them with the "principles of law" ("regulae juris"), which simultaneously laid the foundation for the creation of subjective rights, including human rights. Thus, Hugo Grotius was able to bridge the gap between the norms that arose "naturally" in the usual way, taking into account the nature and mind of man, and the norms of positively established positive law based on coercion. At the same time, with an understanding of the rules of war and peace [Grotius, G., 1994], the great thinker found that a positive norm based on coercion, in necessary cases, is "mitigated" by the intervention of the norms of "nature and reason", that is, principles, grown from natural law, taking into account human biology and the order of behavior. Currently, all of these provisions are an axiom for a lawyer practicing in a legal society, which, however, does not exclude the existence of law and order and their unions practicing absolute positivism with an expansion of coercive measures. The restriction or defence to such an undesirable option for the development of law is an independent and independent court, which constantly cause - as some authors claim [Ispolinov, A.S., 2018], - rejection of actors practicing extended coercion.
Bearing in mind that the normative principles of natural-legal origin do not change their nature from whether they are formulated in a positive norm, the Court, which is called upon to build a unified understanding of the rule of law of the new supranational organisation of economic integration, applies such principles(both ordinary and positive), systematically resolves all the problems that arise, taking into account the priority, direct action and direct application of natural law, including them in Union law.
Currently, norms of ordinary origin are also indicated in national codes. They are named by the general formula - "analogy of law" (where such law is broader than written law). The scientific doctrine of the normative-principles of natural origin has been developed for centuries. For example, by Aristotle, Roman lawyers, then theologians (primarily Thomas Aquinas), and later many secular lawyers [Finnis, J., 2012]. They developed their approaches based on the fact that these norms - found in all legal systems of the world - are formed in the usual way, by practice. Judges have identified customs [Cardozo, B., 2017; Kofanov, L.L., 2015] and they are of an imperative and highly binding nature.
The only question that remains relates to their origin. Is it is from God, from morality, or from nature [Fuller, L., 2007]. A modern reading directly connects their genesis with human biology, with its genetics, which laid down the definition of a measure of its freedom and reasonable behaviour. An intelligent person always understands the limits of his freedom with respect to the freedom of others, the limits of self-preservation, etc. However, genetic certainty of behaviour is also found in animals (for example, polygamous or monogamous behaviour). In other words, law is not an exclusively socio-social institution11, but has its own natural biological basis. Law cannot exist without form - without putting on a word, text [Gryazin, I., 1983]. A reasonable understanding of the standard of behaviour is formed first, as a rule, by practice (repetitive action), and then by a word (text). The next stage is imperious enforcement of order.
The measure of freedom of the person, as well as other rules of his behavior in relation to others, were originally issued in a word (in different languages). The person then arranged his behavior everywhere in the form of the well-known rules which afterwards received the name of the principles (greatest level of generalisation). According to F. Bacon, the principles are "primary and most ordinary elements of which all was formed remaining" [Bacon, F., 1937, p. 22] in the law.
In other words, normative principles are the backbone, the basis on which all remaining rules of international law, both normal, and contractual rest. Also to the Vienna Convention on the Law of Treaties of May 23, 1969, codifying in international law, the principles have the character of jus
11 Here we do not dwell on the eternal polemic of supporters of natural and positive law, but we agree that the law may be redundant [Leoni, B., 2008].
cogens - peremptory norms, and remaining norms must comply with them. The establishment of such a correspondence - is the most difficult fate of an international judge. It is impossible to take any positive code and to isolate the principle of international law. It is necessary to prove rather that a practice created the rule which became the mandatory norm and acquired the nature of jus cogens, which was then, issued in the text of the contract or the judgment.
Hence the special role and abilities of judges applying Eurasian law, interpreting its norms and filling in the gaps in legal regulation.
Compliance with the requirements for the selection of international judges depends on many conditions and procedures. Moreover, many international courts are on the path to their realisation and creation. In other words, the perfect international judge is a mythical figure. In real life, such activities are carried out by people with a wide variety of education and life experiences, significantly different from each other in moral and ethical positions.
In the international legal literature, it was noted that two categories of factors influence decision-making in an international court: Firstly, personal ideas (dependent upon the education, culture, and traditions to which the judge belongs). Secondly personal interests (career interest - such as taking an administrative post, promoting the service of relatives, etc.; organisational interests - such as wanting to increase the authority of the court, and expand its authority, etc.) [Jodoin, S., 2010, p. 12]. It was noted that it is personal interests, as a rule, that determine the nationalistic character of some acts of the international court12.
The possibility of applying international law within the framework of the national legal system does not depend on whether this system belongs to the family of common law, continental law or any other legal tradition, but rather on how deeply the judge has studied and knows international law. Of course, the training of an international judge in the framework of a particular legal tradition (monistic or dualistic [Tunkin, G.I., 1970]) may determine his habits of using sources of international law and the characteristic structures of legal argument. They will continue to be linked by specific sources and methodology of international law [Jodoin, S., 2010, p. 10].
However, the situation will change if the judges of the international tribunal previously belonged to the same "school" in the study of international law as a scholastic subject, not related to real life, not regulating "living" social relations. In other words, judges will solve disputed problems on the basis of their understanding of national law, believing that international law is an unrealistic phenomenon. In this case, international judges, applying international law, are likely to take such approaches that will testify to procedural nihilism [Yablochkov, T.M., 2009] or positivistic
12 See: advisory opinions of the EAEU Court of October 16, 2019 and October 31, 2019.
formalism13. Both phenomena are widely known both in international and national jurisprudence, which deny the possibility of applying the principles of law to correlate positive norms in connection with the denial of the position that "principles prevail over positive law" [Bergel, J.-L., 2000, p. 169].
So, included in the wording of Part 3 of Art. 20 of the Basic Law for the Federal Republic of Germany, the term "law" occurs in accordance with the revival of the idea of natural law in the early post-war period. It should have emphasised that laws and law may diverge if positive law does not meet the fundamental requirements of justice and the principles arising from it. That is, here, law is understood as existing unwritten law along with written law, primarily customary law, judicial law and general principles of law14.
We cannot agree that the approach that reduces law to positive norms is peculiar only to the Soviet school of law [Kischel, U., 2015, pp. 577-584]; You can find many similar examples in other international judicial bodies. However, procedural nihilism (denial of the need for strict observance of procedural rules), as well as formalism (strict adherence to the letter of a positive norm without taking into account the requirements of natural law), indeed, sometimes manifest themselves in lawyers who received education in the Soviet period. This is especially the case if this education was obtained by the correspondence form of training. Perhaps these phenomena influenced the consideration by the EAEU Court of the case on the application of the Ministry of National Economy of the Republic of Kazakhstan15 on the clarification of the provisions of the Protocol on the procedure for crediting and distributing the amounts of import customs duties (other duties, taxes and charges having equivalent effect), their transfer to the state budgets Members (Annex No. 5 to the Treaty), and then two EEC applications in 201916.
The above examples show that it is difficult to achieve a balance in resolving issues of positive and natural law in judicial practice.
13 See: ECtHR. Sutyazhnik v. Russia. Application no. 8269/02. Judgmentof July 23, 2009.
14 See: Grundgesetz. Kommentar / Th. Maunz, G. Dürig (Hrsg.). München: C.H. Beck, 2012. VI. Rn. 63, 65.
15 Order of the Grand Chamber of the EAEU Court of January 17, 2018, separate opinions of judges T.N. Neshataeva and K.L. Chaika.
16 Advisory opinion of October 16, 2019 on the case of clarification of paragraph 1 of the Protocol on the procedure for crediting and distribution of the amounts of import customs duties (other duties, taxes and charges having equivalent effect), their transfer to the income of the budgets of member states (Annex No. 5 to the Treaty); Advisory opinion of October 31, 2019 on the case of clarification of the provisions of paragraphs 1 and 2 of Art. 53 of the Treaty, paragraphs of the sixth and seventh paragraph 5 of the Protocol on Technical Regulation within the Eurasian Economic Union (Annex No. 9 to the Treaty).
In addition, the provisions of the charter documents of the Union, taking into account the complex, multidimensional composition of Eurasian civilisation, are implemented in practice, but cause some problems of legal interpretation inherent in this stage of integration relations.
Firstly, in judicial practice, the question arose of how the principle of "pacta sunt servanda" relates to the principle of national sovereignty. In an advisory opinion of April 4, 2017, at the request of the Ministry of Justice of the Republic of Belarus, the Court put the principle "pacta sunt servan-da" above all and indicated that in cases where the issue was transferred to supranational jurisdiction by the Treaty, the decision is made only at the supranational level and sovereignty recedes. (The Grand Chamber of the Court made the conclusion that "the general rules of competition have direct effect and should be directly applied by Member States as norms enshrined in an international treaty").
In the same way, in other cases where it was necessary to draw a dividing line between the sovereign rights of the state and supranational power, the Court was forced to draw this line. So, in an advisory opinion of October 30, 2017 (at the request of the EEC), concerning Art. 29 of the Treaty - it was decided that sovereign competence is valid where states have failed to agree and where, by virtue of international law, their free will remains. In this case, the Court found that a Member State may apply restrictions in mutual trade in goods on the grounds specified in paragraph 1 of Art. 29 of the Treaty, and that the introduction of such restrictions does not require prior agreement with other Member States and the adoption of an international treaty.
Secondly, several times the subject of consideration was the principle of equality, which turned out to be the most important and difficult to explain. In court it is difficult to recognise its real, not formal essence. Often equality is understood by judges in a formal manner.
Regarding this principle, the Court had two cases related to duties and payments to the general budget: the case on the application of the Ministry of National Economy of the Republic of Kazakhstan was closed on January 17, 2018. In 2019, a similar case was pending before the Court on the application of the EEC - both applicants requested to clarify the Protocol on the procedure for crediting and distributing the amounts of import customs duties (other duties, taxes and fees having equivalent effect), their transfer to the income of the budgets of the Member States (Annex No. 5 to the Treaty). The principle of equality was also important in the case of the statement of the Russian Federation on compliance by the Republic of Belarus of the provisions of the Treaty and international treaties within the Union.
As a rule, the claims concerned the greater rights of one of the member states, and each of them was convinced that they had the right to have more rights in a supranational organisation. At the same time, when applying to
the Court, the applicants referred to equality in agreeing on freedom, not taking into account that the supranational organisation is based on the principle of economic contribution.
In a case of an interstate dispute, the Court resolved the dispute in favour of the Russian Federation (the claims of Russia were satisfied), but with five separate opinions. In another case (according to the statement of the Republic of Kazakhstan), the case was dismissed, but also with separate opinions, thanks to which the issue is currently being resolved in other bodies of the Union according to a process built into separate opinions17. This also showed the role of separate opinions - the positions expressed in them by judges can be further used by states to resolve a controversial issue or adopt a contractual norm along with the positions set forth in an act of the Court to which separate opinions are attached. Two separate opinions are also attached to the advisory opinion of 16 October, 2019 on the issue of fees18. The direction of development of legal regulation of this issue has not yet been determined.
In general, we can say that the Court's function has taken place: normative control is based on international law, and all disputed issues are resolved on the basis of international legal standards, legal positions set forth in the acts of the Court and separate opinions of judges influence the development of Eurasian law.
However, today it is important for the Court to find a balance between activism and conservatism both in resolving international conflicts and in interpreting law. Here, too, we can say that two trends have taken shape.
Firstly, activism in the EAEU Court is manifested in human rights issues. The court began to interpret human rights issues, although such competence was not transferred to it (it remained with the member states). Ideally, the Court is called upon to consider only matters of an economic order. However, the Court is active and resolves human rights issues even when the Treaty does not contain direct rules on this matter. The Court, given the breadth of applicable law, bases its work on universal norms of international law that dictate the protection of human rights.
An example is the advisory opinion of December 7, 2018 on the application of the EEC for clarification of paragraph 2 of Art. 97 of the Treaty. This related to the implementation of labour activities by professional athletes who are citizens of Member States, and the possibility of establishing quantitative
17 The issue is discussed at meetings of the Board and the Council of the EEC and other EAEU bodies in order to develop a procedure for the reimbursement of the due payments by a member state.
18 Advisory opinion of October 16, 2019 on the application of the Eurasian Economic Commission on the clarification of paragraph 1 of the Protocol on the procedure for crediting and distributing the amounts of import customs duties (other duties, taxes and charges having equivalent effect), their transfer to the income of the budgets of member states (Annex No. 5 to the Treaty). The separate opinions of judges T.N. Neshataeva and V.Kh. Seitimova.
restrictions in national legislation applicable to this category of persons in carrying out labour activities. It should be noted that the regulation of sports relations should be transferred to the EEC in 2022, but already in 2018 the Court concluded that it is not allowed to establish labour restrictions in the laws of the Member States and local acts of organisations of physical education and sports, as well as the application of current quantitative restrictions on professional athletes who are citizens of the Member States of the Union with respect to their work, occupation and territory of residence. Today, the rules of law of the Russian Federation are changed on the basis of this conclusion. In addition, several cases dealt with issues of internal law of an international organisation, and the rights of employees. For example, in an advisory opinion of December 20, 2018, the Court established that the period of work of officials and employees in the Commission and the Court should be included in the length of public service in order to establish social guarantees, including for the provision of a pension for long service. This to be based on that labour experience, which is indicated in the international treaty, but not in the legislation of the Russian Federation.
However, the Court does not always take this position. In the field of protecting the rights of entrepreneurs, the Court more often decides in favour of states. As a result, the applicants may suffer losses, sometimes completely losing their business due to the actions of state bodies. The Court considers that all this happens within the framework of national competence and should not interfere. Nevertheless, the general trend is currently changing and consists in the fact that the Court is increasingly taking on the issues of human rights, which should be considered as entirely reasonable in accordance with the current trends in international law19.
Given the level of protection of human rights in international law, I emphasise that no court can leave the agenda for the protection of human rights, especially economic, unattended. In addition, the Court is active in helping to develop the competence of the EEC.
In contrast to the European Commission as a regulatory body of the European Union, the EEC is not yet distinguished by a strong power base and aspiration. The court helps the establishment of a supranational power, since it is sometimes not able to resist the pressure of national authorities. EEC departments act according to the rules imposed by the national executive bodies. For example, decisions of the Court on the applications of Oil Marine Group LLC and Shiptrade LLC, and advisory opinions on cases related to labour relations in the EAEU as an international organisation.
19 For example, the case according to the statement of IP Tarasik K.P. (judgment of the Chamber of the Court of December 28, 2015, judgment of the Appeals Chamber of the Court of March 3, 2016), the case according to the statement of ZAO Sanofi-Aventis Vostok (judgment of the Chamber of the Court of December 21, 2018, judgment of the Appeals Chamber of the Court of March 7, 2019).
Another example is an advisory opinion dated June 18, 2019 at the request of the National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" which shows that the fulfillment of supranational powers requires a critical assessment of national authorities.
At the same time, in some issues the Court shows excessive conservatism. This, oddly enough, is its direct competence - control over the activities of the Commission. The court very often takes the position of the authorities here -remembering the civilisational basis of "obey and respect the authorities". It is very difficult for a court of complex composition to overcome a similar approach in cases to protect legal entities that challenge the decisions of the Commission.
The Court does not have much success here, but they do have it. One example was in the case, according to the statement of Shiptrade LLC, the Commission's decision to classify the ship's diesel engine in accordance with the Foreign Economic Activity Commodity Nomenclature of the EAEU's was cancelled. In this case, according to the application of Oil Marine Group LLC, the Court recognised the Commission's inaction when monitoring and controlling the implementation of international treaties within the Union as being non-compliant with the Treaty. The Commission examined the legislative framework of member states, but not the practice of its application. This last case caused a negative reaction from lawyers, who considered that the Court inappropriately deploying activism [Tolstykh, V.L., 2019]. However, the loser defendant - the Commission - did not appeal the decision, possibly because the College of the Court, in the reasoning of the decision, revealed those monitoring questions that the EEC could not resolve on its own. Currently, in pursuance of the recommendations of the Court, a draft Regulation on monitoring and control of the implementation of international treaties within the Union is being developed by the regulatory body, which is being created, inter alia, on the basis of the provisions set forth in the judicial act.
Thus, it can be stated that a balance between the active and conservative behaviour of the Court has not yet been found. Assuming where the equilibrium point can be located, it is most likely in protecting the economic rights of individuals and legal entities. Perhaps it should be borne in mind that it should not be for a specific person, but rather the protection of an indefinite number of persons participating in the economic and social relations on the territory of the Union.
Finally, the last problem is a point of balance in matters of ethics. This is the most difficult question. It is impossible to assume that an answer to it will be found in the near future. The latter is again connected with the inability to determine general civilisation values. The Court finds it very difficult to make decisions. The presence of a large number of separate opinions indicates that it is impossible to make these decisions stably and by consensus. This is connected precisely with the multiconfessional
composition of the Eurasian court. What is good (and seems normal) for a Russian Christian, may seem unacceptable to a representative of the Muslim worldview. For example, it is most difficult to recognise the rule of law over the rule of power or to prioritise special knowledge over the general legal sense of justice, or to practice the rotation of administrative posts based on gender equality, and/or national equality. It is enough to mention that so far only judges from the Republic of Belarus and the Republic of Kazakhstan have been elected as the President of the Court.
All such issues, given the complexity of the relevant relations, cannot even be meaningfully discussed, because there are no ethics commissions or a disciplinary body in the international court, and there is no general body to assist judges. Perhaps these problems can be resolved only by amending the Treaty, the wording of which currently allows a very formal reading. This applies, for example, to the requirements for the election of the President or the appointment of judges, as stipulated in paragraph 9 of the Statute of the Court: "Judges must have high moral standards, be highly qualified specialists in the field of international and domestic law, and also, as a rule, meet the requirements for to judges of the highest judicial bodies of the Member States". The norm does not contain a procedure for verifying these material requirements, either nationally or internationally. Meanwhile, it is well known: without a suitable process, substantive law does not work. How is the criterion established in the field of education, in the field of culture, in the field of the ability to work in higher courts? In a situation where these criteria are vague and there is no verification mechanism, it is difficult for the international composition of the Court to find ethical consensus, which does not exclude its emergence as integration develops. In conclusion, it should be noted that the formation of a judicial body is a serious problem for many international courts [Neshataeva, T.N., 2019].
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Информация об авторе / Information about the author
Tatyana N. Neshataeva, Dr. Sci. (Law), Professor, Judge of the Court of the Eurasian Economic Union (5 ul. Kirova, Minsk 220006, Republic of Belarus).
Нешатаева Татьяна Николаевна, доктор юридических наук, профессор, cya^ Суда Евразийского экономического союза (220006, Республика Беларусь, г. Минск, ул. Кирова, д. 5). E-mail: [email protected]
