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8 August 2015

The Eurasian ‘Bewitchery’ of the Astana Treaty

The Astana Treaty is not capable of reproducing a Eurasian EU counterpart but leaves the possibility of the emergence of a new dungeon of peoples open

May 1, 2015 marked a year since the signing of the Treaty on the Eurasian Economic Union (EAEU) in Astana. As expected, the Treaty entered into force six months ago – on January 1, 2015. It is believed that it is too early to sum up any of the results of the new institution. We are assured that ‘everything has barely started’. Many believe, some still hope, and very few have begun to realize that a fatal false start underlies the promising beginning.

Hopes were anchored on this document becoming a new cog in the integrational mechanics of the post-Soviet space. However, after its signing and coming into force, its weaknesses from an international, legal and constitutional point of view became evident. The EAEU Treaty is disappointing both for supporters of the ‘resurgence’ of the USSR and for romantics who have set their hearts on it becoming the embodiment of the principles of European integration within a new structure with Russia's participation.

The disappointment is easier for those who harbor hopes of reviving the USSR in a contemporary form within the boundaries of 1936. They have never been under any illusions. They have always been told that the restoration of the USSR is not among the priorities of the states from the Eurasian space. Indeed, not a single letter of the Astana Treaty corresponds with the spirit of the 1922 Treaty or any of the Soviet constitutions. A ‘state of workers and peasants’ is out of the question. The EAEU Treaty resembles a compromise between the ruling oligarchic and nomenclature elites of the member states. To use the language of the Soviet past: this is yet another ‘conspiracy of state-monopoly capital’. In this respect, the Treaty on the Eurasian Economic Union is a logical continuation of the collapse of the Soviet Union and is by no means the start of its ‘resurrection’. In other words: ‘In your dreams, dear comrades!’

The disappointment is harder for the romantics - believers in integration - who have been hoping for new civilized forms of economic cooperation to emerge in the post-Soviet space ever since the Customs Union between the three countries came about. The founders of the EAEU have consistently repeated that the EU’s experience is a reference point for the development of integration within the Customs Union and the construction of the EAEU. But what has really been borrowed from the Customs Union? Let us carry out a very brief analysis ab ovo.

Art. 1(2) of the EAEU Treaty denies statehood to this alliance, designating it as an ‘organization of regional economic integration’. This definition is intended to distance the EAEU both from confederal forms (a union state) and other ‘non-integrative’ international inter-governmental organizations in the Eurasian space (the CIS). This notion is common in international law and can be found, for example, in the UN Convention on the Law of the Sea or the famous Kyoto Protocol. As a rule, it is used to refer to the joint implementation of international commitments by its member states under the auspices of the European Union (EU). It is noteworthy that this unique notion is not present in the EU founding documents. Neither the Maastricht Treaty nor the Treaty of Rome defines the EU in such a way.

At the same time, the Maastricht Treaty stipulates in Art. 1(2) that it marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen. A clear aspiration of the EU and the meaning of all the reforms over the last decades aimed at bolstering legitimacy and overcoming the deficit of democracy at the ‘third level’ of power are laid down in this clause. This is the answer to one of the greatest challenges faced by European integration.

Judging by the provisions of the Astana Treaty, the EAEU does not experience such problems. And whence came this? Citizens of member states are by no means involved in decision-making at the level of the EAEU, and elected bodies are not envisaged in the EAEU Treaty. Not even a body which reflects the interests of the structures of national representation of member states is provided for. The Eurasian Economic Union is a union without democracy! The structure of the EAEU bodies features hierarchy (the Supreme Council – the Intergovernmental Council – the EEC), and, in fact, is the third level in the ‘vertical power structure’. Legitimacy? No.

Everything would be fine if this were a classic interstate organization. However, according to the Astana Treaty, member states formally transfer some of their sovereign powers in the trading and economic sphere (you wanted everything to be like in the European Union!) to the EAEU. Taking into account that the people of the Eurasian states are excluded from participation in decision-making ‘at the third level’, who will the be the designated force to exercise power obtained on the basis of the Astana Treaty? Well, with whom was the Treaty made?

The concept of ‘supranationality’, taken out of the European ‘mausoleum’ of theoretical indisputability (though thoroughly and thoughtlessly fouled in the Soviet days) is supposed to come to the rescue when it comes to understanding this issue. It provides the possibility of justifying the transfer of sovereign powers to ‘the third level’ of power. Unlike the Maastricht Treaty and the Treaty of Rome, which embody the key characteristics of this concept, but contain no mention of it, the EAEU Treaty employs this terminology.

In the context of ‘supranationality’, the Astana Treaty states merely two provisions: First, that the EAEU has no supranational jurisdiction in the field of trans-border services (Art. 38), and second, that in 2025, some kind of ‘supranational authority’ may be created in the field of financial markets (Art. 103). Accordingly, some kind of ‘illusory’ supranationality is attributed to the EAEU: either it does not exist, or, it may appear in 2025. Does this not lead to the impression that the proverbial wool is being pulled over our eyes?

It would seem that the Court of the Union – the only Eurasian body outside the hierarchy - can assist us with this quandary through the provision of a clear interpretation of the issues, similar to how the European Court of Justice interpreted the Treaty of Rome, supranational nature of the jurisdiction of the Community, and laid the groundwork for the formation of a legal system of the EU in its own right in the early 1960s in its decisions on Van Gend en Loos and Costa v. ENEL. However, there is an element of legal obfuscation here, too. To begin with, the Astana Treaty significantly curtails the powers of the Court of the Union compared to the powers of its predecessor – the EurAsEc Court - which, by the way, had powers similar to those of the European Court of Justice. Secondly, the Court of the Union can obviously interpret the EAEU Treaty, even with its lmited jurisdiction today. However, it is doubtful whether member states will abide by these decisions. Art. 6 of the Astana Treaty does not mention the Court’s decisions as sources of ‘the law of the Union’.

The situation regarding the implementation of external powers of the EAEU is no better. On the one hand, according to the Astana Treaty, the EAEU is currently the chief conduit of the interests of member states in foreign trade (Art. 33). It is a realistic possibility that the European Union, as the main trading partner of all countries of the Eurasian area, will establish official relations with the EAEU. That said, the EAEU countries have a different status and different obligations within the international trade system, and these obligations prevail over the EAEU law according to the 2011 Treaty. Note that the widely publicized ‘Agreement on the Free Trade Zone between the EAEU and Vietnam’ was concluded between the EAEU and its member states collectively on the one hand, and Vietnam on the other, in May 2015. What is it - the phenomenon of ‘mixed jurisdiction’ under EU law, or ‘mimicry’ of foreign jurisdiction of the EAEU? Let us allow ourselves to give in to temptation and imagine the incredible: the EU moves towards the EAEU by establishing a similar free trade zone. This would be an insanely complex agreement from a purely legal point of view. 

Besides, the EAEU values, as they are explicated in the Astana Treaty, are archaic for integration processes and reflect European ideas of the 1950s. The EAEU does not embody contemporary values of the European Union – an organization with the most extensive experience of economic integration. The EAEU Treaty places its stake on the implementation of the four market freedoms, and it is only this which corresponds to the value orientations of European integration. Among the norms of the EAEU Treaty, one will not find anything similar to the common values specified in Art. 2 of the Maastricht Treaty (respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights), although the preamble to the Astana Treaty does contain a mention of human rights, after all.

There is no need to pretend that we are at different levels of integration or of a different ‘space-time continuum’. The experience of the last 25 years shows that the countries of the former Soviet bloc and former USSR republics adapt perfectly well to these ‘modern values of integration’. The most outrageous thing is that axiological ‘misery’ of the EAEU Treaty has a certain disharmony with the values of the Russian Constitution of 1993 which is much closer to the Maastricht Treaty and the Treaty of Rome in this respect. It is precisely this dissonance which has already triggered the reaction of the Russian Constitutional Court which justified its authority to check the compliance of the EAEU decisions with the Constitution of the Russian Federation in its ruling of March 5, 2015. This is an unambiguous sign that ‘the guardians of the Russian constitution’ will not allow a destructive Eurasian ‘creative approach’ when it comes to the national legal system.

It turns out that the picture of integration is gloomy. Even the briefest of analyses demonstrates that, in its present form, the EAEU has big problems in terms of legitimacy, and the EAEU’s supranationality is illusory. The experience of the European Union has been largely ignored. The implementation of the Astana Treaty will be carried out under the strict control of national authorities.

That said, the EAEU bodies hadn’t even commenced their work when the EAEU began its expansion by incorporating the poorest CIS countries. We can tell from the EU experience what difficulties and contradictions were brought about by the process of enlargement and the incorporation of new, economically weaker, states. However, all of this does not seem to bother the founders of the EAEU.

These problems would be lethal for authentic integration, but they will have no effect on ‘fake’ integration. Perhaps it is high time to remove the ‘rose-coloured glasses’ – nobody is ever going to transfer serious powers to the Eurasian level. The ‘game of integration’ will continue but, ask yourself, is the Russian ‘vertical power structure’, which tries to extend its prerogatives to the broadest possible scope of regulation in the country, going to share its powers with anyone from the outside? Obviously, the answer is negative. It is also obvious that the Astana Treaty is not capable of reproducing a Eurasian counterpart of the European Union. However, given its reactionary social essence, axiological archaism and general non-democratic nature, it leaves the possibility of the emergence of a new ‘dungeon of peoples’ open.

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