Russian Law Journal

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Vol 7, No 3 (2019)
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5-11 939

In this prefatory article the author surveys the general concept of “integration” and its development and application in Soviet and post-Soviet space and then reviews the particular contributions made by each article contributed to this special issue of the Russian Law Journal.


12-37 1093

This article examines Eurasian integration in the context of the ideas which accompany it and make possible the implementation of its practices, especially law-making and law-enforcement practices. The central theme of the article is the competition among values and social technologies claiming to play an integrating role. The starting point of this analysis is the theory of justice by John Rawls presented in the form of many interpretations thereof by legal theorists, as well as experts in the field of political and moral philosophy. It is examined based on assessments made from the standpoint of the politico-legal and socio-historical development of the West, as well as on attempts to look at this theoretical concept from a different cultural and civilizational point of view. Detailed consideration is given to the ideas and images of justice formed within the philosophical symbiosis of Confucianism and Legalism and providing a value-based legal identity of the Chinese civilization. The article shows that the ideas and values of the Rawlsian theory of justice are rooted in the political and legal history of European civilization and the dependence thereof on the philosophical and theoretical language of European enlighteners and even on the Indo-European national language family. As the main alternative to the neoliberal theory of justice, the article studies the philosophical and theoretical and politico-legal heritage of the Eurasianists. The theory of Eurasian law advanced by representatives of this movement is analyzed in depth. This type of legal relations, based on obligations, is considered as a special type of law capable of uniting heterogeneous entities without requiring their full unification or depriving them of their civilizational and value-based peculiarities. The authors analyze the real experience of economic and politico-legal integration, both within the framework of international organizations  and  at  the  level  of  inter-governmental  [inter-country]  cooperation. An assessment is made of the justifiability of the claims of Eurasianist philosophy regarding its ability to successfully provide integration processes in this part of the world.

38-52 1038

Coordinated macroeconomic policy is a special element within the integration process in addition to the four freedoms usual for economic integration: free movement of goods, free movement of services, free movement of labor, and free movement of capital. Macroeconomic coordination was, from the very beginning, a key idea behind each stage of the process of Eurasian economic integration. The politico-ideological foundation of the Eurasian idea is the facilitation of growth for Eurasian countries on the basis of economic pragmatism. The macroeconomic coordination process within the Eurasian Economic Union is based on the coordination of strategic planning systems in each Member State. Strategic planning plays an important role in macroeconomic coordination. Strategic planning documents have a sound legal basis in the Treaty establishing the Eurasian Economic Union. At the same time Eurasian integration provides a platform for best practice exchanges and coordination of strategic planning between the Member States.

53-81 1093

This article examines comparatively legislation on the public-private partnership in the countries of Eurasian Economic Union and the relationship with Model Law “On Public-Private Partnership” adopted within the framework of the Commonwealth of Independent States. It is argued that the national acts of such countries could be improved and harmonized by developing their categorial apparatus and the extension of permissive regulation of public-private partnership. The legal qualification of an agreement on public-private partnership and other investment contracts with the participation of the State stipulated in other laws is also examined. It is concluded that such agreements comprise not only private, but also public law elements and might be regulated in special legislation containing rules of civil and public law on the basis of balancing private and public interests in public-private partnership.

82-106 1555

The authors identify characteristic features of how certain children’s rights are exercised under the family law of Russia and the legislation of the Commonwealth of Independent States (CIS). The norms of the CIS family law on children’s rights are specific; they adhere to national cultural traditions and customs that have an impact on the implementation and protection of children’s personal non-property rights. The authors point out that a child, under certain circumstances, can be a carrier not only of the rights and obligations provided for by the family codes of independent States, but also by family law of the CIS. The article points out to the need to define the law applicable to regulating relations where the participants have different or dual citizenship, or legal facts occurred on the territory of one State that is a member of the CIS. The authors describe a defect in Russian legislation regulating the status of a child with dual citizenship. The problem of legislative consolidation of the concept of proper upbringing of a child is addressed, as are ways that children may undertake self-protection of their rights granted in CIS member States. One peculiarity of the family codes of CIS member States is the norms regulating a child’s participation in personal non-proprietary and proprietary relations. Special attention is paid to alimony payments. Moreover, the authors consider the laws that regulate dissolution of a marriage, as well as how such dissolution affects the legal status of the child. The article focuses on deprivation of parental rights as a radical method of breaking the bond between a child and parents, distinguishing the deprivation of parental rights from their restriction. The authors consider adoption procedures, as well as the legal status of the adopted and adoptive parents. Each problem is considered by using the comparative legal research method.

107-133 1371

Modern challenges for international law application in the former USSR countries are inextricably linked to the regional integration issues. Despite seeking closer rapprochement with the EU, Russia never dropped its ambitions as a spearhead of political, economic and legal integration within the post-Soviet area. Belarus actively participates in the post-Soviet integration projects while seeking improvements of EU-Belarus relations. However, Ukraine embarked upon a long and challenging path of deeper political and economic integration with the EU and aligning its legal system with the EU acquis. Against this backdrop, this article studies the constitutional dimension of three post-Soviet republic’s engagement in regional integration projects identifying the problematic issues in the application of international law.

134-154 1231

This article is based on 7.5 years of work experience in the Courts of the Eurasian Economic Community (EurAsEC) and Eurasian Economic Union (EAEU) and, therefore, finalizes the major problems the mentioned judicial institutions faced with in the beginning of their functioning. The Eurasian Economic Union in post-Soviet space was created five years ago with minimal established doctrinal and practical perceptions of how such an organization may interact with State sovereignty and whether it constituted the first step for the subsequent emergence of a new State. The authors believe that the EAEU should not be confused with the State and should be considered a new type of international organization, supranational, to which member States transferred competence. In this organization the Court plays an important role – its main function is to ensure the uniform application of Union law by hearing disputes and providing advisory opinions in various spheres of integration and, therefore, establish practice having an erga omnes effect in the law of the Union and national legal systems of States. Just as in other international courts, the main role in the EAEU Court functioning is played by judges nominated by national governments, sometimes without taking into account the sui generis character of their future work. Taking into consideration the valuable experience from other international courts and organizations (such as the International Court of Justice, European Court of Human Rights, International Law Association), the authors suggest ways for improvement of future Court functioning by creating mechanisms that would monitor the qualities of candidates for the post of the EAEU Court judge.

155-168 1324

Despite the relatively short history of its development, the Eurasian Economic Union (EAEU) is becoming more confident about itself as a successful integration project. At the same time, there is a growing interest in the EAEU by the political elite and scientific community in Russia and abroad. The EAEU is investigated from different points of view, but almost no research is carried out without a comparative legal analysis of the EAEU and the European Union (EU). Both unions belong to the same type of integration organizations; the EAEU was largely created in the image of the EU. However, an analysis of the institutional and legal structure of the EAEU and the EU shows there are fundamental differences between the two unions concerning the principles of their functioning. This article substantiates the fact that supranational constitutionalization within the EU is not typical for the EAEU and is even harmful. At the same time, the technical tools developed by the EU can be useful to the EAEU for resolving current challenges of ensuring sustainability and self-affirmation in the international arena. This experience is of importance in view of the crisis experienced by the EU, since only they were able to manifest what institutional and legal decisions are working within the framework of an integration association, and which should be discarded. It is vital that the EAEU not repeat the mistakes and miscalculations of the EU.

169-193 2042

Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, “forum shopping” may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court’s right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable.

194-219 854

In 2012, a new jurisdictional body – the Court of the Eurasian Economic Community – began to operate in post-Soviet space. During the almost seven years of activity, from September 2012 to May 2019, the Court primarily dealt with appeals of economic entities who challenged acts of the Eurasian Economic Commission, as well as requests from Member States and the Commission for interpretations of international treaties. On one hand, the decisions of the Court meet basic international standards and contain certain answers to the questions submitted to the Court. On the other hand, they do not draw detailed arguments and clear conclusions and sometimes reflect the Court’s predisposition towards the Commission and Member States. As a result, they successfully perform the task of resolving specific disputes, but do not perform (at least effectively) the general task of strengthening the rule of law of the EAEU. The Court did not formulate major concepts that complement and enrich the law of the EAEU. The author substantiates this conclusion and analyzes the Court use of sources of law and evidence; its participation in judicial dialogue; its technique of argumentation; linguistic features of its decisions; procedural and substantive problems faced by the Court, and options for their solution; the practice of presenting separate opinions; legal concepts formulated by the Court, and its overall influence on the development of EAEU law. The ineffective resolution of problems faced by the Court are attributable to subjective and objective reasons – shortcomings of applicable acts, the Court’s isolation from Russian doctrine, the Court’s focus on an internal model of legal proceedings, mistrust on the part of Member States, failure of the Court organizational structure to conform to international standards, and the vertical nature of the EAEU. If these factors are not overcome, and the Court does not change its conduct, it risks becoming a decorative body engaged in explaining provisions that are clear (and will repeat the sad fate of the CIS Economic Court). This prospect is discouraging.

ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)