Contribution of the Law of the Commonwealth of Independent States to the Development of the CIS Member States

3 phases of the development of the CIS law (1991-2015)


Bachelorarbeit, 2015

45 Seiten, Note: 2,0


Leseprobe

TABLE OF CONTENTS

BIBLIOGRAPHY

CHAPTER 1: INTRODUCTION

CHAPTER 2: 1st and 2nd phases of the development of the CIS law (1991-2008)
2.1. Political, economic and legal background of development, 1st phase
2.2. Political, economic and legal background of development, 2nd phase
2.3. Analysis of the relevant CIS legal documents
2.4. Impact of law on the development of the CIS member states (results)

CHAPTER 3: 3rd phase of the development of the CIS law (2009-2015)
3.1. Political, economic and legal background of development, 3rd phase
3.2. Analysis of the relevant CIS legal documents
3.3. Contribution of law to the development of the CIS member states (results)

CHAPTER 4: RESULTS

BIBLIOGRAPHY

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CHAPTER 1: INTRODUCTION

The significance and urgency of the topic are defined by the fact that by 2016 the CIS will have been in existence for 25 years. Throughout this long period of time this international organization and its law have influenced the development of its member states. However, this important topic remains an unexplored field of research. A controversial course of development, pessimistic forecasts, and a negative image resulted in a loss of interest in the CIS and its law nowadays. However, "the Commonwealth is developing and is one of the most important forms of cooperation of states situated in the former Soviet area."[1] In addition, the law of the CIS is experiencing a new phase in its development, as shown by dynamic legal activities within the CIS, e.g. the agreement on establishment of the Eurasian Economic Union which came into force on January 1, 2015.

Academic novelty of the study. The new phase of development of the CIS law started in 2009, but remains currently unexplored. In general, most research papers have been written about the 1st and 2nd phases, and an insignificant number about the 3rd stage. Furthermore, among them, there are three different types of opinion about the CIS: First, skeptics and ideological opponents of the CIS, who are pessimistic about the CIS and criticize the organization harshly; they have "buried" the CIS. Second, ideological supporters and those who are directly involved in the reorganization and transformation of the CIS in the 3rd Phase: they recognize several mistakes in the first two phases; however, in general, they are too optimistic about it. And a third type of opinion involves the few researchers who consider the conflicting points of view, trying to evaluate the CIS objectively. They point out the causes of inefficiency and inconsistency in the CIS law and offer constructive solutions to manage these problems in order to improve the functioning of the CIS, noting at the same time spheres of mutual interest, which are genuinely developing. In this thesis we cover all three types of opinion and moreover, most of the sources (especially for the 3rd phase) are sources published in the CIS countries, mostly in Russian. Primary sources of the CIS law were used for analyses in the Chapters 2.3. and 3.2.

Goals and objectives of the study. The aim of this thesis is to show the contribution which was made and is still being made by the CIS law to the CIS member states’ development at different stages of the existence of this organization. Moreover, this paper also addresses key historical, political and economic factors which are important for the disclosure of the topic, with primary emphasis on the analysis of the main and most important legal sources of the CIS at different stages of the CIS development, excluding legal documents of various associations within the CIS.

The following hypotheses will be defended in the thesis; in particular, by comparing different phases of development of the CIS law, it will be shown that the CIS law had differing impacts on the development of the CIS states, according to the particular phase:

1. The first and second phases of the CIS law’s development (1991-2008) were conducted according to a “push strategy” (remark: this term was chosen by the author), because the CIS law was handed down from the top to the bottom of society, meaning from the state leaders, in an artificial way. Thus, contradictory goals (independence vs. integration) were set in the constituent documents, which reflect existing disintegration processes at that time. At the second phase of the process attempts were undertaken to strengthen integration by means of dynamic legal activity, yet without taking into account the real factors and the actual interests of the CIS states. Consequently the results achieved diverge from expectations, promoting a negative image and leading to pessimism regarding the development of the CIS.
2. In the new phase (2009-2016), the impulses are also set "from below", meaning from society, respecting the actual interests of the states, according to a “pull strategy” (remark: this term was chosen by the author). Thus, regions of the CIS states influence the formation of the CIS law, as well as changes in national legislation in the framework of cross-border and interregional cooperation.

The structure and content of the thesis. The thesis is divided into two main parts. In the first part the first two phases will be combined: first, the historical, economic and legal background for the development of CIS law at the 1st Phase (2.1.) and at the 2nd Phase (2.2.), respectively, will be presented. Next, the most important legal sources will be addressed, and their analysis will be conducted (2.3.), and conclusions for the impact of the CIS law on the CIS states will be discussed (2.4.). Following this structure, a new phase will be discussed in the second part: factors of the CIS law formation (3.1.), the analysis of the basic documents (3.2.) and conclusions about the contribution of the law in respect of the CIS states at the 3rd phase (3.3.). In the fourth part, the results concerning different phases will be compared and conclusions will be drawn, and additionally the prospects for further development will be highlighted.

Basic terms. In the course of this thesis the following terms will be used:

The CIS law is a set of legal acts formulated and concluded within the framework of the CIS as well the legal norms of its bodies and associations.[2]

Cross-border cooperation is an integral part of interregional cooperation and the special feature of the 3rd phase of development of the CIS law. There are several discussions regarding this concept in the scientific literature; we consider the definition given by the 2nd Article of the European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities in this paper. By transfrontier cooperation is meant “any concerted action designed to reinforce and foster neighbourly relations between territorial communities or authorities within the jurisdiction of two or more Contracting Parties and the conclusion of any agreement and arrangement necessary for this purpose. Transfrontier cooperation shall take place in the framework of territorial communities' or authorities' powers as defined in domestic law. The scope and nature of such powers shall not be altered by this Convention”.[3]

There is no precise definition of what development means either. Within this paper, the definition formulated by the United Nations is used. Development is a normative concept, identifying the following necessary conditions for the transformation of development into a long-term phenomenon: the growth of economic efficiency of production capacity of the national economy, progress in technology, the diversification of the economy in general and of industry in particular, the ability to adapt to external disturbances of economic balance.[4]

CHAPTER 2: 1st and 2nd phases of the development of the CIS law (1991-2008)

2.1. Political, economical and legal background of development, 1st phase

The 1st Phase has been called a transformational step or a transition, since the essence of it is that the CIS was created for the transformation of the Soviet Union. It started with two events which occurred almost simultaneously. On December 8th, 1991 near Minsk, in Viskuli (Belovezhskaya Pushcha Natural Reserve) the leaders of Belarus, Russia and Ukraine signed an Agreement Establishing the Commonwealth of Independent States, which unexpectedly announced that "the USSR as a subject of international law and a geopolitical reality [had] ceased to exist."[5] That is, simultaneously with the collapse of the USSR, the CIS was formed. The CIS is the official successor to the USSR, and received legal status in the Protocol to this Agreement.[6]

The Constitutive Acts of the CIS include 3 documents: Agreement Establishing the Commonwealth of Independent States of December 8, 1991, the Protocol thereto, and the Alma-Ata Declaration of December 21, 1991. The CIS Charter was formulated later in 1993, and is actually called the "legal framework of the Commonwealth."[7] Studying these constituent documents, researchers identified a number of factors that led to the emergence of constituent documents in that form.

1. Lack of essential legal preparation in the formulation of the Charter

On the one hand, political experts call the agreement "unnecessary euthanasia for the Soviet Union"[8], considering the haste in acting in the preparation of constituent documents and the lack of adequate consultation with legal experts before signing. At that time a public opinion prevailed concerning a possible conspiracy, or coup, aimed at hastening the collapse of the Soviet Union[9] in order to benefit specific individuals, in particular by means of illegal privatization[10]. In addition, the mass media expressed the view that these processes have led to inefficiency both of reforms, and of legal documents in the CIS: "[The document's authors] were too hasty. [...] This degradation [...] was due to decisions, especially those taken in December 1991.[11]

On the other hand, some of the leading politicians of that time claim that as well as the officially signed text of the Agreement, more unfavorable versions of the CIS Charter existed, which could have been worse, where the future of all CIS states was concerned. This haste was a necessary measure, firstly, in order to "in either federative or non-federative form, save the core”, "while signing the Agreement there was nothing more to rescue”,[12] "the agreement from August 20 excluded the USSR as the founder of Commonwealth of sovereign states. And in contract from November, which was the second attempt to find the correct way of legal dissolution, was generally much tougher: The Commonwealth of sovereign states is the confederation of democratic independent states.”[13] Secondly, the prompt official disintegration of the USSR was necessary to prevent economic and humanitarian catastrophes too: "[Yeltsin] was well aware that if we do not take over responsibility and do not take concrete and real steps, the threat of chaos, dissolution and real hunger becomes irreversible.[14]

2. From a legal point of view, the constitutive documents were legal documents for the divorce in a civilized way. Becoming independent prevailed over the idea of unity. It was important for the CIS states to fix, in the CIS Charter, their sovereign state status. Article 1 of the CIS Charter states: "The Commonwealth is based on principles of sovereign equality of all members. So the members are independent and equal subjects of international law."[15] So the intergovernmental relationships moved officially to the basis of international law. Thus, in January 1993, the statements of the CIS members show that the leaders were focused first of all on the interests of their own states, but not on integration or the interests of Commonwealth.[16]

Disintegration processes prevailed during the creation of the CIS; this was caused by several factors:

Firstly, the ideological and political crisis.[17] The USSR republics did not believe in the ideology of the USSR any more; centrifugal tendencies became common for all union republics. "The common mood was that, [...] we (republics - author) try it on our own. [...] Indeed, I have a feeling that if the republics didn’t experienced independence, they still would contemplate about whether being independent would have been better.”[18]

Secondly, economic factors. On the one hand, there was a deep economic crisis in all CIS states: “The CIS states, the Republics were economically [...] disabled, struggling for survival. At this moment, [...] the issue of survival was the prior one.”[19] Therefore, from a political point of view, according to Stankevich, "the task of a kind of integration seemed to be less important, anyway these goals could wait until later, but first - survive."[20] On the other hand, the disintegration tendencies in economics were actively stimulated after the creation of the CIS, for example, by the differing progress of necessary economic reforms conducted by the CIS states. This concerns the monetary and credit policy during introduction by the CIS states of their own national currencies.[21] In 1993, Russia effectively put an end to the ruble zone by separating the Russian monetary, credit and currency system from those of other CIS states, as this contradicted its economic interests. Further disintegration processes gained financial support from the IMF in 1993 in order to maintain the stability of new states’ currencies while leaving the ruble zone.[22] An additional incentive for disintegration was the policy of leading developed countries and organizations such as the US, EU, and Japan, which provided financial aid to the CIS states.[23]

Third, there was a lack of a clear ideological basis in the constituent documents. If we compare the formation of the CIS and the EU, while there is the idea of a united Europe in the EU, there was no similar idea in the CIS Charter regarding the common CIS area. For example, in the Charter there is only the cooperation in various fields listed as the goal. Moreover, unlike the EU, where initially independent states joined a united Europe, at the formation of the CIS, member states first had to learn what it means to be independent, and only then decide to integrate or not.[24]

Fourth, during the first phase, the main legal goal of Russia was to become the successor to the USSR in order to save, first of all, its nuclear and military potential, as well as chemical weapons and property abroad.

3. The main aim of the constitutive documents was integration, which becomes an actual goal later, meaning that was the goal only in a long-term perspective.

On the one hand, the force of attraction of the former parts of the whole, namely the USSR, appears in some legal documents: infrastructure, language, cultural characteristics etc. remain common in the border regions.[25] On the other hand, in the long term perspective the aim was that “the core should be saved in some form, in the future we return to this issue, namely, to create new forms of unions.[26]

2.2. Political, economic and legal background of development, 2nd Phase

The beginning of the 2nd Phase was characterized by the fact that the new independent states recognized that they could not successfully integrate into the global economy on their own,[27] so there was a real interest in renewing integration activity in order to reach a new goal, fixed earlier in the CIS Charter, and to harmonize national legislations.

It is necessary to highlight a number of factors that stimulated active legal work towards integration at that time:

Firstly, the course towards independence was not accompanied by an economic breakthrough. In order to escape a deep economic crisis the majority of states tried to attract foreign investments and credits. For some countries this was the only means to survive.[28] Yet foreign investors and creditors did not see decent and equal partners in the former Soviet republics. On the one hand, loans were given on unfavorable terms, making the CIS states suppliers of cheap raw materials and a stable market for Western products and services on regular basis: “Quite often the fish is far from fresh and occasionally given on credit.”[29] On the other hand, foreign investors were restrained and cautious - the risk of a return to the communist system was still high,[30] and the legal basis did not meet international standards.[31] In addition, before the 1st Phase ended, Russia could not provide financial assistance due to low energy prices.[32]

Secondly, the privatization of the public sector in some states had ended unsuccessfully - it occurred randomly and illegally and all the natural resources and large enterprises ended up in the hands of few individuals, no longer under the control of the state.[33]

Third, along with the "divorce of the USSR states" the common infrastructure and common production chains were destroyed. As a result, products of the former joint ventures, focused for example on aircraft production (Russia, Ukraine, Uzbekistan, Georgia) were pushed out of the international and domestic markets, leading to an increased export of energy sources and making many countries “a raw materials appendix of the West".[34]

Fourth, after having gained independence the new independent states faced the choice – to be just a supplier of raw minerals or to take an industrial path of development and reforms.[35] For the industrial route it was essential to restore all domestic production chains, which required investments and time. Moreover, for restoring the broken industry it was essential to establish a united market and legal protection from external competition[36], as well as to fix the ruined relations with the CIS states (or create new relations), which required investments and the legal basis for involving them too. However, as noted above, Western countries did not hurry with investments for various reasons - the fear of a return to the communist system and/or the unfavourable investment climate.

Thus, there are dynamic legal activities being carried out at the 2nd Phase, e.g. about 300 model legal acts were passed, which are considered the most effective means of integration,[37] if only model legal acts to be counted. However, a number of unaccounted factors and different interests of the CIS states held back fruitful work towards harmonization of the CIS law:

First of all, the fact that there are two kinds of countries, those with resources and those without them, determines the existence of two opposite types of interest. This fact is a natural obstacle to the integration of the CIS countries. This is why this regional organization is different than other similar organizations, such as the EU. For example, Russia and Kazakhstan, as resource-rich countries are, in fact, not interested in integration because upon elimination of customs and trade barriers, Russia and Kazakhstan would not receive the profits they count on. On the other hand, resource-poor CIS countries cannot afford to go along the industrial development path alone, without significant financial assistance.

Thus, countries had to find common ground. The majority of the CIS countries would receive resources and financial assistance from Russia at a reduced price. At the same time, Russia sought geopolitical control[38] and ways to achieve a balance between raw materials and the industrial development path in return. In this context, some researchers have compared Russia with Norway, noting the double objectives of the Russian Federation and a correspondingly contradictory effect on the development of the CIS. This development, on the one hand, has been stimulated by Russia, but, on the other hand, has been slowed down in certain situations.

Secondly, if before the collapse of the Soviet Union in 1991, the CIS countries were at approximately the same level of economic development, the 2nd Phase implied high variations between levels. Thus, it was necessary to take this into account during the preparation of legal documents, as countries did not have the opportunity to participate equally in integration. In addition, the political will for full economic integration has so far been observed to varying degrees.[39] Only in the middle of the 2nd Phase have these two factors been included in the Concept of integration on multiple levels and at various speeds. This concept was first reflected in the Eurasian Economic Space 2012. "Integration at various speeds means that each state should determine the time of accession to this or that international treaty, leading to the integration on multiple levels when member states are at different levels of integration interaction. Integration on multiple levels and at various speeds means that each state should determine the areas of integration in which it will be taking part and to what extent or individual integrative actions."[40] Thus, any country can accede to international treaties as soon as it is ready. Moreover, such a position has been stimulated by an opportunity to selectively participate in the process of signing and ratification of any regulations according to the CIS Further Development Concept.[41]

Thirdly, at the beginning of the 3rd Phase, the problem of creation and restoration of mutual trade and economic relations in the border regions was the most acute one for all CIS countries. This can be explained by the fact that there had been a sharp deterioration in terms of cooperation and integration in these regions. At the 1st Phase, the countries’ attention was directed at dealing with border management issues. Due to the fact that new borders were not equipped with the necessary infrastructure, they could not prevent smuggling, causing the economies of neighboring countries to suffer significant losses. In addition, until the end of the 2nd Phase, the role of countries in the regulation of cross-border processes had decreased. Moreover, there was no harmonious customs policy, leading to an increase in the differences in living standards with the neighboring border regions which led to social tensions. In addition, the lack of cross-border cooperation agreements did not let cross-border regions solve common problems harmoniously.[42] Thus, first of all, the CIS countries had to set a short-term goal of solving problems legally. Therefore, adoption of the Concept of interregional and cross-border cooperation of the member states of the Commonwealth of Independent States was initiated in 2004. This Concept noted that "inter-regional and cross-border cooperation was intended to encourage the free movement of people, capital, goods, and services."[43]

Thus, the development of cross-border cooperation was, on the one hand, aimed at stimulating the development of innovative methods, taking into account two different kinds of countries (resource-rich and resource-poor ones), improving the efficiency of the CIS member states production base use, and social infrastructure in border regions.[44] On the other hand, the goal was to align different levels of development in border regions.

2.3. Analysis of the relevant CIS legal documents

The above-mentioned conditions and factors have influenced the appearance of the special legal nature of the CIS and of CIS law. These are characterized by the special features that make this organization different from other international organizations, defining its special way of development from the very first stage. It is also necessary to take into account that the main objective of the 1st Phase was simply to create a more-or-less functional structure, since its creation took place hastily, under pressure. The 2nd Phase involved "equipping" this structure with the real content created during the 1st Phase and identifying the most acute problems. The content meant the creation or amendment of the legislation which had to close the gaps in national legislation in various areas of cooperation such as tax, customs, banking and so on, in order to catch up with international standards. Also, the goal of this Phase was harmonization of the national legal frameworks of the CIS countries. This explains the appearance of many legal acts in the 2nd Phase. Moreover, researchers and lawyers faced the task of identifying a number of key features of the formation of the law in the 1st and 2nd Phases.

1.Uncertainty in terms of the legal status of the CIS organization reigned at the beginning of its creation. This was due to the fact that its legal status hadn’t been fully articulated in constitutional documents due to haste and the different interests of the various CIS countries in terms of the objectives of the establishment of such an organization. Thus, initially, researchers’ opinions concerning the legal status of the CIS varied significantly. According to some experts, there was no clear will of the peoples of different nations to unite. Member states are referred to as subjects of international law in the Charter (part 1, article 1), and none of the constitutional documents gives any positive characteristics of the legal status of the organization (a necessary condition for recognition as an international organization). For example, the Alma-Ata Declaration and the Charter (part 3, article 1) contain only a negative formulation: "The Commonwealth is not a state; it does not have supranational powers."[45]

Yet there are reasonable grounds for determining the legal nature of the CIS as a regional international organization and a subject of international law. At the moment, most lawyers believe that the CIS is a regional international organization. So, this problem has been recognized by the CIS, and the Council of the Heads of States of the CIS adopted a Decision on certain measures to ensure international recognition of the Commonwealth and its statutory bodies on December 24th, 1993. Obtaining for the CIS observer status in the UN General Assembly in March 1994 as an international regional organization, in accordance with UN General Assembly Resolution number 48/237 is among these measures.[46] In addition, The Economic Court of the Commonwealth of Independent States has issued an advisory opinion that the CIS is a subject of international law, since the Commonwealth really exists and acts as a participant in international relations.[47]

2. The opaque and unclear structure of the organization is the second issue in the development of the CIS. Thus, according to the Charter, the CIS has a clear organizational structure. This implies a system of the organs which act to coordinate interstate, intergovernmental, and interdepartmental institutions (as they are qualified in the individual acts of the CIS).[48] In addition, researchers of the late 2nd Phase believe that the most important function of the CIS from its creation to the end of the 2nd Phase is structuring, as new independent states had to make a choice between joining the existing structures (the Baltic countries) or beginning to form new structures (for obvious reasons, the majority of countries). Thus, the CIS had to ensure institutional-organizational and legal equality of the new independent states as an "umbrella organization", not as a supranational structure from the very first stage. The CIS engaged in working out the "common rules” and general legal documents.

For this purpose the CIS has created a number of bodies, 9 statutory bodies and more than 60 specialized bodies, at the 1st Phase.[49] The most important are statutory bodies. A key role among these is played by the Council of the Heads of States of the CIS and the CIS Council of Heads of Government. The intergovernmental agreements and international treaties that regulate cooperation between the CIS states are signed at the meetings of these two bodies. The Council of the Heads of States of the CIS is the supreme body of the CIS according to the CIS Charter. It has the right to address the important issues which, among others, relate to the amendments to the Charter.

The other statutory bodies are The Council of Ministers of Foreign Affairs; The Council of Ministers of Defense; The Council of Border Troop Commanders; The Interparliamentary Assembly; The Economic Court. The executive bodies of the CIS include The Economic Council, The Council of Permanent Plenipotentiary Representatives to the statutory and other organs of the Commonwealth and The Executive committee.

However, some researchers note that some of these bodies and structures duplicate each other's functions. Thus, some were abolished in the course of their development (e.g. Collective Security Treaty Organization (1992)) and some were merged: The Eurasian Economic Union was created through the merger of the Eurasian Economic Community (2001-2014), The Customs Union (1995-2009), and The Common Economic Space (2012-2015, abolished). Thus, all these bodies worked from different directions with differing levels of intensity uncoordinated between the various bodies, which was rather ineffective.

3.Differences in the decision-making mechanisms in the CIS organs constituted one of the important factors hindering both the functioning and development of the CIS law. For example, consensus was determined as the main method of decision-making by the CIS Charter in 1993. According to article 23 of the Charter, any state had the right to express its lack of interest in addressing a particular problem. It was also mentioned that all decisions of the Council of Heads of States of the CIS and the CIS Council of Heads of Government should be taken by consensus in accordance with the 17th Rule of Procedure from October 7th, 2002, although formally "the documents signed even by 10 of its members against the will of the eleventh member cannot be considered decisions of the Council."[50] The CIS Charter does not resolve this conflict. As noted by some researchers, in practice, countries exercise their right not to participate in some agreements at all. Thus, selective signing of documents has spread in the CIS.[51] Still, there are proponents of consensus because, until 2007, this was the main principle in the EU’s activity. Researchers came to the conclusion that consensus helped make fundamental decisions. Analyzing the work of the CIS Interparliamentary Assembly to adopt decisions on model laws at the beginning of the 3rd Phase, researchers note that in some cases adoption of consensus was not an easy process, e. g. as it was with the model law on languages.[52]

Thus, the first two Phases of the organization failed to create the effective decision-making mechanism which could combine, on the one hand, the idea of equality of all countries enshrined in the Charter of the CIS, the different levels of economic development of the CIS countries, and on the other, the varying degrees of interest in the development of the CIS.[53] However, adoption of decisions by a simple or qualified majority can become such a method at the next stage. This method has been used effectively in the Economic Court of the CIS already.

4. In this regard, it was unclear what exactly the CIS law was and whether it existed or not at all. Points of view on the nature of the CIS law can be divided into three groups: it has an international legal nature; it has a special legal nature; this law does not actually exist.

a. The CIS law has an international nature. Y.P. Blishchenko, V.N. Shumsky, M.F. Malikov, and N.A. Mikhaleva believe that "the CIS law can be viewed as a subsystem of international law", but not a new sub-sector; it is "a special level of international law."[54] Thus, participants in the Relation between the CIS law and a modern international law round table, which took place in 1997, defined the CIS law as "a unified system of legal norms and regulations (treaties, agreements, conventions, and model laws).[55]
b. The CIS law has a special legal nature. L.V. Grechko, G.G. Shinkaretskaya, and V.B. Mantusov consider the CIS law to be an independent legal system. They say that over time, CIS creates its own law which includes treaties and agreements concluded within the CIS. Also, the CIS law includes the decisions that are signed by heads of states and governments of countries members of the CIS.[56]
c. The CIS law does not actually exist. V.G. Vishnyakov adheres to the fictitious nature of the CIS law.[57] However, arguments of scientists with similar views have been refuted by reference to The Vienna Convention on the Law of Treaties of 1969. According to article 2 of this Convention, regardless of whether an international agreement is contained in one or more documents, and regardless of the names of these documents, all acts of the CIS are considered international treaties and, therefore, the CIS law exists and at least has the legal nature of international acts.

5. The vagueness in the definition of the nature of the CIS law was also a negative factor for the development of the CIS law. Analysis of legal acts adopted by these bodies identifies the unregulated nature of types of legal acts and legal force of legislation and recommendations as well as the procedure for their ratification. The Charter mentions this only in general terms. In general, it is necessary to emphasize the special nature of international legal acts of the CIS. Many researchers believe that the legal status of acts of CIS bodies was not sufficiently regulated. The criteria for types of legal acts of the CIS were not clearly determined, hindering immediate identification of the legal nature of a document by its name. The legal acts adopted within the framework of the CIS are quite diverse. The majority is made up of multilateral and bilateral agreements in various areas between CIS countries in accordance with articles of the CIS Charter.[58]

Yet there are two kinds of laws and recommendations in the CIS at the 2nd Phase. This point of view has been confirmed by the CIS Economic Court.[59]

The first kind includes such acts of the CIS as agreements, decisions, declarations, and memoranda of heads of states and heads of government, as well as other acts if they are signed by the heads of state or heads of government and are binding[60]. Multilateral agreements are considered the basic legal framework (article 5 of the CIS Charter). Cooperation in the legal sphere is based on the multilateral and bilateral agreements which are concluded and enter into force in accordance with the Vienna Convention on the Law of Treaties of 1969.

The second kind includes all other acts of bodies and institutions of the CIS among which a special place is occupied by IPA model acts.

According to article 1 of the Convention on the Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States from May 26th, 1995, the IPA is an interstate body of the CIS. Under Article 13 of the Rules of the Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States from September 15th, 1992 this body can make decisions in the form of statements, inquiries, and recommendations. In addition, according to article 4 of the IPA from May 26th, 1995, this body can develop and adopt common standard (model) laws. These laws are sent to the parliaments of the States Parties of the Convention on the Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States from May 26th, 1995 to be ratified by these parliaments.

Model laws have been developed by The Interparliamentary Assembly of Member Nations of the Commonwealth of Independent States (IPA CIS) in order to create a single legal space in the CIS on the basis of international legal standards, while adapting and harmonizing them to CIS conditions. Model laws are considered instruments to eliminate incompatibilities between national legislations or/and to fill CIS legal vacuums. They are considered the most effective means of integration[61] and of the European orientation of the States of the Commonwealth.[62]

Thus, about 300 such documents had been adopted by 2011[63]. In particular, many changes simplifying and harmonizing the tax system[64], securities markets and capital markets of the Commonwealth have been made, including such model laws as the Model Law on the securities market and the Model Law on the protection of investors’ rights, with the assistance of the European Bank for Reconstruction and Development, as well as the UN, World Bank, World Intellectual Property Organization, The International Committee of the Red Cross, UNESCO, The government of Germany, USA, Netherlands, and Canada.[65]

Initially, however, this body was established as an advisory institution to discuss and review draft documents of mutual interest. Precisely this fact affected the nature of the legal acts adopted by this body.

6. Researchers point out not only the inefficiency of legislative bodies but also their doubts over the effectiveness of legislative acts which are passed by CIS bodies. Thus, all the CIS acts except for constituent documents are only advisory regarding their nature.[66]

A control mechanism upon implementation of acts has not been worked out yet: “states decide for themselves how efficient it is to use such acts to draft national legislation.”[67] However we cannot agree with some researchers who think that the CIS law does not play an active part in states’ development at all.[68] Such statements do not correspond to the facts and can best be explained by lack of information.[69] Thus the recommendatory nature of legislative acts being passed is combined with their active use in national legislation.[70]

7. Pessimism. These factors led to the fact that the image of positive integration changed to a negative one at the end of the 2nd Phase: authorities announced that the CIS must become only an advisory body.[71] Thus, in 2005 Putin called the CIS “a useful club” where there was a lot of “political idle talk and gibberish”.[72] As a matter of fact he drew a line beneath the first two stages of the CIS development during the Security Council meeting in Moscow on July, 19, 2004. He contended that politicians had had a great impact on the CIS development, thus “the CIS states policy was not always efficient, pragmatic and what is more important, consistent.”[73] Besides this, two possible scenarios of the further CIS development were outlined: ― the positive scenario according to which there is stable development and economic progress in all CIS countries. This is both bedrock and presupposition of all our activity in the CIS. Life has shown us more than once: real progress can be achieved here only where and when there is mutual advantage for all partners taking part in the integration process.

[...]


[1] Medvedev, Dmitry, speech at the session of the Council of Heads of Member States of the Commonwealth on May 29th 2015, 2015, online: <http://government.ru/news/18287/ >, last accessed: 05.09.15.

[2] The Federation Council Committee on the Cases of the Commonwealth of Independent States, The Proceedings of the Round Table «Problems of Rapport between the CIS law and the modern international law” (October 16th 1997), Analytical Bulletin of the Federation Council Committee, Nr. 21 (66) 1997, p.69, online: <http://council.gov.ru/activity/analytics/analytical_bulletins/25682>, last accessed: 05.09.15.

[3] Council of Europe, European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities, Madrid, May 21st 1980, online: <www.conventions.coe.int/Treaty/en/Treaties/Word/106.doc>, last accessed: 05.09.15.

[4] Alkire, Sabina, Human Development: Definitions, Critiques, and Related Concepts, Human Development Research Paper, January 1st 2010, online: <hdr.undp.org/sites/default/files/hdrp_2010_01.pdf>, last accessed: 05.09.15.

[5] Council of Heads of Member States of the Commonwealth of Independent States, Agreement Establishing the Commonwealth of Independent States, December 8th 1991, online: <http://cis.minsk.by/page.php?id=176>, last accessed: 05.09.15.

[6] Council of Heads of Member States of the Commonwealth of Independent States, Protocol to Agreement Establishing the Commonwealth of Independent States, December 8th 1991, online: <http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=6>, last accessed: 05.09.15.

[7] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, Moscow, 2012, p.16.

[8] Romanov, Petr, Belovezhsky Agreement as unnecessary euthanasia for USSR, News & Information Agency "RIA Novosti", December 5th 2011, online: <http://ria.ru/history_video/20111205/507006031.html>, last accessed: 05.09.15.

[9] Quiring, Manfred, Russia - Guide for the giant empire, german title: Russland - Orientierung im Riesenreich, Berlin, 2008, p.104.

[10] Romanov, Petr, Belovezhsky Agreement as unnecessary euthanasia for USSR, December 5th 2011, News & Information Agency "RIA Novosti", online: <http://ria.ru/history_video/20111205/507006031.html>, last accessed: 05.09.15.

[11] Sokolov, Mikhail, If we judge the lessons from 1991 correctly, Vladimir Putin has the only option - to take responsibility for systematic modernisation, December 23th 2011, Radio Svoboda, online: <http://www.svoboda.org/content/transcript/24433771.html>, last accessed: 05.09.15.

[12] Romanov, Petr, Belovezhsky Agreement as unnecessary euthanasia for USSR, December 5th 2011, News & Information Agency "RIA Novosti", online: <http://ria.ru/history_video/20111205/507006031.html>, last accessed: 05.09.15.

[13] Sokolov, Mikhail, If we judge the lessons from 1991 correctly, Vladimir Putin has the only option - to take responsibility for systematic modernisation, December 23th 2011, Radio Svoboda, online: <http://www.svoboda.org/content/transcript/24433771.html>, last accessed: 05.09.15.

[14] Ibid.

[15] Council of Heads of Member States of the Commonwealth of Independent States, Charter of the Commonwealth of Independent States, January 23th 1993, <http://cis.minsk.by/page.php?id=180> and <http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=186> , last accessed: 05.09.15.

[16] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, Moscow, 2012, p.18.

[17] Ibid.

[18] Sokolov, Mikhail, If we judge the lessons from 1991 correctly, Vladimir Putin has the only option - to take responsibility for systematic modernisation, December 23th 2011, Radio Svoboda, online: <http://www.svoboda.org/content/transcript/24433771.html>, last accessed: 05.09.15.

[19] Ibid.

[20] Ibid.

[21] Bazhenova, Elena, All about money in Russia, Moscow, 1998.

[22] Smyslov, Dmitry, History of Russian relations with international financial organisations, 2010, < http: //www.ru-90.ru/node/1215>, last accessed: 05.09.15.

[23] Krotov, Mikhail, GUS - problems, experience, tendencies, March 25th 2011, <http://e-cis.info/page.php?id=19080>, last accessed: 05.09.15.

[24] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p. 397.

[25] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, Moscow, 2012, p.18-19.

[26] Sokolov, Mikhail, If we judge the lessons from 1991 correctly, Vladimir Putin has the only option - to take responsibility for systematic modernisation, December 23th 2011, Radio Svoboda, online: <http://www.svoboda.org/content/transcript/24433771.html>, last accessed: 05.09.15.

[27] Krotov, Mikhail, Integration for mutual advantage is the precondition for modernisation in the CIS, Svobodnaya Mysl, 2010, Nr.9 (1616), p. 39-52.

[28] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.398-399.

[29] Ibid. p.400.

[30] Quiring, Manfred, Russia - Guide for the giant empire, german title: Russland - Orientierung im Riesenreich, Berlin, 2008, p.104.

[31] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.400.

[32] Quiring, Manfred, Russia - Guide for the giant empire, german title: Russland - Orientierung im Riesenreich, 2008, Berlin, p.100.

[33] Ibid. p.104.

[34] Simes, Dimitri, The US-Soviet Relationship after the Cold War, in: American Foreign Policy, Routledge, 2013, p.205.

[35] Migranyan, Andranik, Zatulin, Konstantin, CIS: beginning or the end of the history: changing milestones, Newspaper Nezavisimaya, March 27th 1997, online:< http://www.zatulin.ru/index.php?&section=digest&id=35>, last accessed: 05.09.15.

[36] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.401.

[37] Mikhailenko, Alexander, CIS: to be or not to be, 2007, St. Petersburg, pp.14-17.

[38] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.403.

[39] Migranyan, Andranik, Zatulin, Konstantin, CIS: beginning or the end of the history: changing milestones, Newspaper Nezavisimaya, March 27th 1997, online:< http://www.zatulin.ru/index.php?&section=digest&id=35>, last accessed: 05.09.15.

[40] Official Webpage of the President of Russia, Concept of the establishing of a single economic space, September 19th 2003, online:< http://archive.kremlin.ru/text/docs/2003/09/52480.shtml>, last accessed: 05.09.15.

[41] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, 2012, Moscow, p.39.

[42] Bilchak, Vassily, Economy in border regions, Kaliningrad, 2001, pp. 5-9.

[43] Executive Committee of the CIS, Concept of interregional and cross-border cooperation of the member states of the Commonwealth of Independent States, 2004, online: < www.e-cis.info/foto/pages/19817.doc > and 2015, <http://www.cis.minsk.by/news.php?id=5355>, last accessed: 05.09.15.

[44] Zlessky, Boris, CIS: Priorities of the presidency of Belarus and mass media, <http://www.rusnauka.com/9_NND_2013/Politologia/7_132116.doc.htm>, last accessed: 05.09.15.

[45] Moiseev, Evgeny, Legal framework of creation of the CIS and its status in the international law, Eurasian Law Journal, № 8 (27) 2010, <http://www.eurasialaw.ru/index.php?option=com_content&view=article&id=1128%3A-8-27-2010-&catid=99%3A2010-06-02-08-56-30&Itemid=693> , last accessed: 05.09.15.

[46] Ignatenko, Gennady, International Law, Chapter 14, §11 CIS, Moscow, 1998, p.216.

[47] Economic Court of the CIS, 13th advisory opinion Economic Court of the CIS, № 01-1/2-98, Decisions of the Economic Court of the CIS, <http://sudsng.org/database/deed/68.html> , last accessed: 05.09.15.

[48] Malikov, Marat, Modern problems of Constitutional Law of Russian Federation, Ufa, 2007, pp.121-124.

[49] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, Moscow, 2012, p.27-28.

[50] Pustogarov, Vladimir, The Status of the CIS in the international law, State and Law, Nr. 2 1993, p.74.

[51] MGIMO and Ministry of Foreign Affairs of the Russian Federation, CIS: processes and perspectives. Report, Moscow, 1992, p. 6.

[52] Kosov, Yuriy, Toropygin, Andrey, Commonwealth of Independent States: Integration, Parliamentary Diplomacy and Conflicts, Moscow, 2012, p.35-39.

[53] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.398-399.

[54] Blishchenko, Igor, The Federation Council Committee on the Cases of the Commonwealth of Independent States, The Proceedings of the Round Table «Problems of Rapport between the CIS law and the modern international law” (October 16th 1997), Analytical Bulletin of the Federation Council Committee Nr. 21 (66) 1997, p.69, online: <http://council.gov.ru/activity/analytics/analytical_bulletins/25682>, last accessed: 05.09.15.

[55] ibid.

[56] Mantusov, Vladimir, Economical Integration or Divorce? Perspectives, Special Features, Problems, Moscow, 2001, p.42-43.

[57] Vishnyakov, Victor, Constitution of Russia and Interstate Structures, Journal of Russian Law, Nr. 11 2003, p. 80.

[58] Council of Heads of Member States of the Commonwealth of Independent States, Charter of the Commonwealth of Independent States, January 23th 1993, <http://cis.minsk.by/page.php?id=180> and <http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=186> , last accessed: 05.09.15.

[59] Ibid.

[60] Economic Court of the CIS, Article 1.4. of Rules of Economic Court of the CIS, Bulletin of Russian Supreme Arbitrazh Court, Nr. 12 1994, p. 64.

[61] Mikhailenko, Alexander, CIS: to be or not to be, St. Petersburg, 2007, pp.14-17.

[62] Krotov, Mikhail, Integration for mutual advantage is the precondition for modernisation in the CIS, Svobodnaya Mysl, 2010, Nr.9 (1616), p. 39-52.

[63] ibid.

[64] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.402 - 482.

[65] Krotov, Mikhail, Integration for mutual advantage is the precondition for modernisation in the CIS, Svobodnaya Mysl, 2010, Nr.9 (1616), p. 39-52.

[66] Mikhaleva, Nadezhda, Legal problems of creation of the Union between Russia and Belarus, State and Law, Nr. 6 2002, p.14-21.

[67] Tikhomirov, Yury, International legal acts: nature and impact, Journal of Russian Law, Nr. 1 2002, p.101-110.

[68] Shumsky, Victor, Creation of legal basis in the CIS, Journal of Russian Law, Nr. 9 1998, p.123-126.

[69] Vorobiev, Vyacheslav, Problems of development and reforms in the CIS, Moscow, 2009, p.184.

[70] Krotov, Mikhail, Integration for mutual advantage is the precondition for modernisation in the CIS, Svobodnaya Mysl, 2010, Nr.9 (1616), p. 39-52.

[71] Stroev, Egor, Bliakhman, Leonid, Krotov, Mikhail, Russian and Eurasia at the Crossroads, Heidelberg, 1999, p.40 2- 482.

[72] Russian News Channel BBC Russia, Putin: CIS was created for a “divorce”, March 25th 2005, Russian News Channel BBC Russia, online: <http://news.bbc.co.uk/hi/russian/russia/newsid_4382000/4382389.stm>, last accessed: 05.09.15.

[73] Putin, Vladimir, speech on the session of the Security Council of the Collective Security Treaty Organization, Moscow, July 19th 2004, online: <http://www.odkb-csto.org/information/detail.php?ELEMENT_ID=142>, last accessed: 05.09.15.

Ende der Leseprobe aus 45 Seiten

Details

Titel
Contribution of the Law of the Commonwealth of Independent States to the Development of the CIS Member States
Untertitel
3 phases of the development of the CIS law (1991-2015)
Hochschule
Universität Siegen  (Public Law)
Veranstaltung
European and German Law
Note
2,0
Autor
Jahr
2015
Seiten
45
Katalognummer
V365353
ISBN (eBook)
9783668450103
ISBN (Buch)
9783668450110
Dateigröße
598 KB
Sprache
Deutsch
Anmerkungen
Der Verfasserin gelingt es, eine hoch komplexe und gerade aus der Sicht der deutschen Rechtswissenschaft eher "exotische" Materie sinnvoll zu ordnen und in einen inneren Zusammenhang zu bringen. Das Thema zeigt sich als Schnittstellengebiet, in dem historische, geopolitische und ökonomische Fragestellungen ebenso eine Rolle spielen wie die rechtlichen Aspekte. Die Arbeit bietet einen sehr guten Überblick und kann ohne weiteres als Grundlage und Anregung für künftige Spezialuntersuchungen dienen. Univ. –Prof. Dr. Iur. Gerd Morgenthaler
Schlagworte
CIS, COMMONWEALTH OF INDEPENDENT STATES, Analysis of the CIS legal documents
Arbeit zitieren
Tatiana Istomina (Autor), 2015, Contribution of the Law of the Commonwealth of Independent States to the Development of the CIS Member States, München, GRIN Verlag, https://www.grin.com/document/365353

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