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The Legal Regime for Free Trade in the Commonwealth of Independent States

Published online by Cambridge University Press:  17 January 2008

Rilka Dragneva  and
Joop De Kort
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Abstract

Whether through the framework of the Commonwealth of Independent States (CIS) or outside of it, the former Soviet republics continue to seek and depend on economic cooperation with each other, particularly in the area of trade in goods. This article examines the legal framework for free trade in the post-Soviet space and discusses its role in fostering effective regional cooperation. The focus is on the multiplication of regimes at the bilateral and multilateral (CIS) level—a particular blend of ‘à; la carte multilateralism’ and multiple bilateralism—and their respective features in terms of legal nature, substantive scope, and disciplining mechanisms, as well as the implications of their overlap. We find that both the bilateral and the multilateral regimes have undergone significant (often underestimated) development, and that the multilateral regime has generally sought to be more ambitious both in its substantive and institutional reach. Yet, both regimes can be described as ultimately weak and their overlap confusing. While a higher juridicization and comprehensive consolidation at the multilateral level of the CIS free trade regime may be recommended, we remain sceptical about its likelihood in the short and medium term.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 56 , Issue 2 , April 2007 , pp. 233 - 266
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 In view of the different course of integration of the Baltic States, namely membership in the European Union, we deal only with the remaining former Soviet republics: Armenia, Azerbaijan, Belarus, Georgia, Moldova, Kazakhstan, Kyrgyz Republic, The Russian Federation, Tajikistan, Ukraine, and Uzbekistan. Turkmenistan has changed its status from a full member to an observer in August 2005, yet we continue to consider it where appropriate.

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11 In doing so, we use the terms ‘institutions’, ‘institutional framework’, and ‘regime’ as synonyms.

12 We use the terms ‘bilateral’ and ‘multilateral’ with reference to numbers of signatories, rather than other possible defining criteria, see Van Oudenaren, J, ‘What is “Multilateral”?’ (2003) Policy Review No 117.Google Scholar Where needed we sub-divide the ‘multilateral’ category into ‘global multilateral’ (eg WTO, UN, IMF arrangements), ‘regional’ (eg CIS, EU, NAFTA) or ‘sub-regional’ (with reference to formations within the regional arrangements).

13 The primary focus here is on goods other than oil and gas. Although intra-CIS trade in energy represents a huge percentage, it tends to be subject to specific inter-State agreements with low transparency; see eg Dodsworth, JR et al. , ‘Cross-Border Issues in Energy Trade in the CIS countries’, IMF Policy Discussion Paper 02/13 (2002)Google Scholar; Stern, JP, The Future of Russian Gas and Gazprom (OUP, Oxford, 2005).Google Scholar

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15 On the efforts for the restructuring of the Soviet Union, see Walker, E, Dissolution Sovereignty and the Break-up of the Sovient Union (Rowman & Littlefield, Oxford, 2003).Google Scholar

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19 All successor States had a balance of payments deficit with Russia. The currency union existing until 1993 allowed the deficit countries to pay for these deficits in the common currency, the rouble, thus passing on the costs to the Russian monetary authorities. See van Selm, B, The Economics of Sovient Break-up (Routledge, London, 1997).CrossRefGoogle Scholar

20 Michalopoulos, C and Tarr, D (eds), ‘Trade in the New Independent States’ (The World Bank, Washington, DC, 1994); MB Olcott et al (n 2) 43–5.Google Scholar

21 eg agreements providing for uniform contract terms and dispute resolution mechanisms for dealings between enterprises in realizing the deliveries. Agreement on the General Conditions of Supply of Goods between CIS Organizations of 20 March 1992, Convention on Resolving Disputes Arising from Economic Activities of 20 March 1992.

22 Olcott, MB et al. (n 2) 38–9.Google Scholar

23 It was ratified by only four countries, after a significant delay, and when the relevance of the agreement was in some doubt.

24 We have found such FTAs (excluding the ‘trade and cooperation agreements’ on which the deliverie were based) concluded between Ukraine and Belarus, and Belarus and Moldova.

25 Jonson, L (n 17) 44.Google Scholar

26 Agreement on the Creation of the Inter-State Economic Committee of 21 Oct 1994.

27 Particularly telling are Yeltsin's words of February 1994: ‘Integration must not bring harm to Russia itself or lead to overstretch of our forces and resources, material as well as financial’, quoted in Jonson, L (n 17) 44.Google Scholar Furthermore, as Jonson notes, despite the general consensus on the strategic vision of Russia as a great power in the CIS region, no such agreement was in place regarding the specific measures to achieve this vision.

28 That was particularly the case after the arrival of Yevgenii Primakov as foreign minister in January 1996.

29 See Agreement on Deepening Integration in the Economic and Humanitarian Areas of 29 03 1996Google Scholar and Treaty on the Customs Union and the Single Economic Space of 26 02 1999.Google Scholar

30 Some of the bilateral FTAs make an explicit reference to the 1994 FTA impulse, eg the 1995 Georgia-Ukraine FTA.

31 In 1998, the organization was renamed the Central Asian Economic Cooperation and in 2002, the Central Asian Cooperation Organization (‘CACO’). Russia joined CACO in 2004.

32 Statement of the CIS Council of Heads of State of 19 09 2003.Google Scholar

33 In March 2005, for example, President Vladimir Putin stated that: ‘the CIS never had any supertasks (sverkhzadach of an economic nature, any integration tasks in the sphere of economies’, available at <http://www.kremlin.ru/text/appears/2005/03/85912.shtml>. This statement was actively smoothed over by senior members of the Russian Government.

34 In this way Uzbekistan also became a member of EAC, see <http://www.evrazes.com>.

35 The SES is an initiative of Russia, Belarus, Kazakhstan, and Ukraine, see <http:// www.eepnews.ru>.

36 World Bank, ‘Georgia: An Integrated Trade Development Strategy’, Report No 27264–GE (2003)Google Scholar; World Bank, ‘Kyrgyz Republic Country Economic Memorandum: An Integrated Strategy for Growth and Trade’ Report No 29150–KG (2004)Google Scholar; World Bank, ‘The Republic of Moldova: Trade Diagnostic Study’ Report No 30998–MD (2004).Google Scholar

37 On SES, see the report of LSE and Eurasia Heritage Foundation, ‘Single Economic Space: Viability, Implications, Prospects’ (2005) at <http://www.eurasianhome.org/doc_files/lse_ses>..>Google Scholar

38 The Georgian Rose Revolution of 2004, the Ukrainian Orange Revolution of 2004, the Kyrgyz Tulip Revolution of 2005, and the political convulsions in a number of other CIS countries during 2005 and 2006, have had multiple implications, including at the level of CIS regional cooperation, many of which are still to be fully revealed.

39 Art 5 of the CIS Charter adopted 22 01 1993.Google Scholar

40 Butler, WE, The Law of Treaties in Russia and CIS (CUP, Cambridge, 2002).Google Scholar

41 Art 3 of the Temporary Agreement of 30 12 1991, Art 23 of the CIS Charter.Google Scholar

42 These problems are particularly pronounced in the case of the Economic Court, see Simonian, G, ‘K voprosu o priznaniia iurisdiktsii Ekonomicheskogo suda SNG’ (2000) 4 Moskovskii zhurnal mezhdunarodnogo prava 104–11Google Scholar; Danilenko, G, ‘The Economic Court of the CIS’ (1999) 4 NYU Journal of International Law and Politics 893–918.Google Scholar

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44 eg as provided for in the Agreement on the Procedure for Customs Treatment and Customs Control of Goods of 8 10 1999.Google Scholar

45 Advisory Opinion of the Economic Court of 15 May 1996, published in Lauterpacht, E and Greenwood, J (eds), International Law Report, No 127 (CUP, Cambridge, 2005). The advisory opinion and its summary also point to the legal consequences depending on the type of violation and agreement (in the sense of Art 20 of the Vienna Convention).CrossRefGoogle Scholar

46 Similarly, Art 8 (7) prohibits reservations to the 2000 Protocol on Import Licensing.

47 The Economic Court did not review this reservation in the already mentioned 1996 Advisory Opinion or in its Decision on Case No 01–1/1–98 of 22 06 1998Google Scholar, published in Lauterpacht and Greenwood (n 45), which is its other act dealing with the issue of reservations. We are not aware of any legal response of the other signatories of the 1994 FTA. Nonetheless, there is the sense that, apart from the issue of its legal validity, the reservation represents a powerful political signal.

48 Dragneva (n 10).

49 Temporary Agreement on the Council of Heads of State and Heads of Government of 31 12 1991Google Scholar, Art 23 of the CIS Charter. As already mentioned, according to the ‘interested party’ principle, the consensus requirement applies only to the countries present and interested in the particular decision being voted upon.

50 Art 12 of the Agreement on the Temporary Rules of the Councils of 15 05 1992Google Scholar, Art 20 of the Procedural Rules of the Councils adopted by a Decision of 17 05 1996.Google Scholar

51 1996 Advisory Opinion (n 45). The Economic Court defines primarily the first category, including in it: decisions approving draft agreements, decisions setting up organs envisaged by international agreements, declarations of the senior Council when they are annexes to agreements, and, more generally, declarations which have the attributes of international agreements.

52 A good example of such a decision is the 1997 Concept on the Development of Economic Integration in the CIS. In its 1998 Decision (n 47), the Economic Court qualified it as a ‘political’ one on the grounds that it does not formulate specific obligations, but represents the mutually coordinated views of CIS Member States about their common goals and priorities, and mechanisms to achieve them.

53 Art 10 of the Statute of the IEC, adopted as an appendix to the Agreement on the Creation of an IEC of 24 10 1994.Google Scholar

54 Statute of the Economic Council, approved by a Decision of the Council of Heads of State of 25 01 2000.Google Scholar

55 For more on the Council, see <http://easc.org.by>.

56 Regulation (polozhenie) of the Interstate Council adopted as an appendix to the Protocol of 20 06 2000 1992 Amending the 1992 Agreement on Standardization, Metrology and Certification.Google Scholar

57 A number of important agreements have been drafted, see <http://www.ec-cis.org/main.aspx?uid=2538>.

58 Regulation (polozhenie) approved by a Decision of the Council of Heads of Government of 30 06 2002.Google Scholar

59 eg Shinkaretskaia, G, ‘SNG: tendentsii razvitiia’ (1993–1994) Rossiiskii ezhegodnik mezhdunarodnogo prava 78–100.Google Scholar The arguments made in this early publication, we believe, are still valid today.

60 For more on the general problems of implementation of international law in the CIS, see Danilenko, G, ‘Implementation of International Law in CIS States: Theory and Practice’ (1999) 10 European Journal of International Law 51–69.CrossRefGoogle Scholar

61 The issue has been of a particular concern for the Inter-Parliamentary Assembly of the CIS as successive documents and statements in its publication Vestnik Mezhparlamentskoi Assamblei show.

62 The majority CIS legal systems require the ratification (as opposed to cases when the signing or confirmation of an agreement is sufficient) of important trade-related international agreements, yet there are differences in the provisions of the law of treaties of the CIS countries. For more, see Butler (n 40), Dragneva (n 10).

63 Art 23 of the 1995 Russian Law of International Treaties allows temporary application of international agreements but requires that they are submitted to the Russian parliament (the Duma within a period of no more than six months from the date of the commencement of the provisional application. Given the lack of ratification (or other decision) on the FTAs, interesting constitutional issues are raised as to the legal effect of this continued ‘temporary’ application.

64 eg the 1992 Belarus-Ukraine FTA was ratified by the Ukraine only in 1999, and the 1994 Ukraine-Kazakhstan FTA was ratified by the Ukraine in 1998.

65 Butler (n 40).

66 Art 5 of the Russian Law of Treaties and Art 4 of the Tajik Law of Treaties define ‘self-executing agreements’ as those which are officially published and do not require implementing acts; Art 12, para 3 of the Kyrgyz Constitution refers to ratified international treaties; Art 4, para 3 of the Kazakh Constitution refers to ratified international treaties which do not require a promulgation of a law for their application; Art 6, para 2 of the Georgian Law on Treaties refers to officially published agreements, establishing right and duties of a specific character and not requiring a clarifying normative act.

67 Some agreements, such as the 1995 Georgia-Ukraine FTA even omit this rule.

68 The only bilateral agreement which we have found to mention progressive elimination is the 1993 Ukraine-Russia FTA.

69 Art.3.

70 Art 3, para 2.

71 for more on the exemptions maintained, see the information of the CIS Executive Committee at <http://www.ec-cis.org/main.aspx?uid=1136>, as well as UNECE (n 5). The latter report also discusses the empirical difficulties in obtaining accurate information on the subject.

72 eg address of the Russian Minister of Economy and Trade German Gref to the Russian Parliament of 26 02 2003Google Scholar, quoted in Freinkman et al (n 4) 46. The information of the CIS Executive Committee (n 71) refers to exemptions being between 0.1–0.2 per cent of mutual import and 0.24–0.36 per cent of mutual export in 2001–2.

73 Freinkman, et al. (n 4) 45–6.Google Scholar

74 See Information on the Progress and Results of Bilateral Negotiations on Exemptions from Free Trade and the Transition to the Principle of Destination in Indirect Taxation, adopted by a Decision of the Council of Heads of Government of 31 05 2001, at <http://www.garant.ru>..>Google Scholar

75 See reports on the meeting of the Council of Heads of Government of June 2005 in Tbilisi, <http://pda.lenta.ru/news/2005/06/06/cis>..>Google Scholar

76 Free trade without exemptions remains the priority for the Ukraine within the SES as well.

77 While this institutional arrangement reflects the fact that the other CIS countries only gradually obtained membership in the World Customs Organization, it also testifies to Russia's leading role in the post-Soviet world.

78 eg Russia and Kazakhstan, 28 03 1994Google Scholar; Russia and Uzbekistan, 2 03 1994.Google Scholar

79 No such reference is made in the 1995 Kazakhstan-Kyrgyzstan FTA. Other agreements make a blanket reference to ‘origin determined in accordance with international regulations’, eg 1996 Georgia-Azerbaijan FTA and 1997 Georgia-Kazakhstan FTA.

80 eg Freinkman, et al. (n 4) 48–9.Google Scholar

81 In this example, without a full cumulation, the fact of value added to the goods in Kazakhstan or Tajikistan would exclude these goods from the bilateral free trade regime.

82 The difference in approaches is explained in World Bank 2004 (n 36) 57.Google Scholar

83 Agreement on Coordinated Policy in the Area of Standardization, Metrology and Certification of 13 03 1992.Google Scholar

84 The Council was recognized by ISO as a regional organization under the name of Euro-Asian Council on Standardization, Metrology and Certification in 1996. The potential benefit of a collective solution is aptly demonstrated by the example of Moldova revealing the difficulties in bringing the standardization system in line with international best practice faced by a small country with little financial and human resources, World Bank 2004 (n 36).

85 Freinkman, et al. (n 4) 49.Google Scholar

86 The transition to distinguishing voluntary standards and mandatory requirements has been gradually effected on a national level, stimulated by the preparation for accession to the WTO, which embraces this distinction, and/or the growing economic cooperation with the EU. Yet, as individual countries' examples show this has not been an unproblematic process, eg World Bank 2004 (n 36).

87 Freinkman, et al. (n 4) 49 report that only 20 per cent of positions have been harmonized.Google Scholar

88 Most of the agreements we have been able to find are with Russian participation and follow the same template.

89 Yet, a number of FTAs confuse the two types of exemptions (general exceptions and special protective measures) and the conditions under which they apply, eg The 1995 Ukraine-Georgia FTA.

90 The early FTAs provide only for the first two circumstances.

91 The 2003 Ukraine-Moldova FTA is most sophisticated in distinguishing different types of measures and making specific references to WTO rules.

92 eg World Bank, ‘Ukraine Trade Policy Study’ Report No 29684–UA (2004).Google Scholar

93 Art 13 of the Federal Law No 118 on Entry into Force of Part II of the Tax Code of 5 08 2000. It should be noted, however, that Russia continues to levy an export tax on its energy exports.Google Scholar

94 See, eg, Helfer, L and Slaughter, A-M, ‘Why States Create International Tribunals: A Response to Professors Posner and Yoo’ (2005) 93 California Law Review 899–956.Google Scholar

95 eg most of Kazakhstan's 1997 FTAs, or the 1994 Ukraine-Uzbekistan FTA.

96 Art 26.

97 The only exceptions we have found are the 1994 Ukraine-Kazakhstan FTA and the 1995 Ukraine-Georgia FTA which provide for interpretative and dispute resolution powers of the commission. At the same time, a few agreements do not even mention a commission, eg the 1997 Kazakhstan-Belarus FTA and 1997 Kazakhstan-Uzbekistan FTA.

98 Reich (n 8).

99 On the other international judicial institutions available to CIS countries, see Anisimov, L, ‘Mekhanizmy razresheniia sporov i predotvrashcheniia konfliktov mezhdu gosudarstvami-uchastnikami SNG’ (2002) 1 Moskovskii zhurnal mezhdunarodnogo prava 97–115.Google Scholar

100 For more on me general institutional features of the Court, see Danilenko (n 42); Dragneva (n 10).

101 Art 1. The role of the Court was affirmed by its inclusion amongst the institutions of the Commonwealth in the 1993 Charter.

102 Art 3 of the Statute of the Economic Court of 6 07 1992.Google Scholar

103 Art 3, para 4.

104 Art 9 of the 1991 Minsk Agreement, Art 17 of the CIS Charter.

105 Art 31, para 2.

106 Advisory Opinion C–1/19–96 of 15 05 1997.Google Scholar

107 ibid.

108 Art 11 of the 1998 Agreement of the Principles of Indirect Taxation, Art 15 of the 1999 Agreement on the Procedures for Customs Clearance and Customs Control.

109 Art 25, para 2 of 1994 FTA.

110 Protocol on the Rules of Procedure for Holding Consultations on Staged Elimination of Exemptions from the Free Trade Area, adopted by the Economic Council on 24 12 1999.Google Scholar

111 The 1999 FTA refers to the 1994 Inter-State Economic Committee. The Committee, however, were taken over by the Executive Committee of the CIS, set up in 1999. The latter's Statute, however, does not have an explicit provision to that effect.

112 During the first decade of the existence of the Court it has considered 65 cases. The majority of them (54) have resulted in advisory opinions interpreting agreements and decisions of the CIS; nine cases relate to disputes on non-performance of economic obligations of Member States; and two pertain to labour disputes, see<http://sudsng.org/about>. While full information about the nine economic disputes and the effect of their decisions is not generally available, it has been noted that these cases have often been resolved through negotiations, Fisenko, I, ‘Praktika Ekonomicheskogo Suda SNG’ (1997) 3 Moskovskii zhurnal mezhdunarodnogo prava 26–33.Google Scholar

113 Statement at the Council of Heads of State summit in Astana, 17 Sept 2004, reported in Rossiiskaia Gazeta of 17 Sept 2004.

114 eg the Decision of the Council of Heads of State, ‘On the Work of the Economic Court and on the Need for its Improvement’ of 26 05 1995Google Scholar and the Draft Concept of the Economic Court of April 1996 in response to it. Similarly, the Draft Protocol Amending the Status of the Economic Court of 3 Dec 1999 prepared by the Court and the Concept Paper of the Economic Court of 24 Oct 2000.

115 On which see Malfliet, K, ‘The Commonwealth of Independent States: Towards Supranationalism?’ in Feldbrugge, F (ed), Law in Transition (Kluwer, Den Haag, 2002).Google Scholar

116 For a comprehensive analytical discussion of how norms interact with each other, see Pauwelyn, J, Conflict of Norms in Public International Law,(CUP Cambridge, 2003)CrossRefGoogle Scholar, also Aust, A, Modern Treaty Law and Pratice (CUP, Cambridge, 2000).Google Scholar

117 Art 5 of the 1998 Indirect Taxation Agreement, Art 11 of the 1999 Customs Clearance and Customs Control Agreement, Art 15 of the 2000 Technical Barriers Agreement.

118 Art 20.

119 eg the 1992 Standardization, Metrology and Certification Agreement, the 1995 Customs Nomenclature Agreement, or the 2000 Protocol on Licensing Imports.

120 The bilateral FTAs include conflict avoidance clauses regarding earlier concluded compatible bilateral agreements or norms reflecting the Pacta tertiis rule of Art 34 of the Vienna Convention. Clearly, these provisions, as well as any relevant preambular references, will serve as bases for interpretation.

121 Art 5 of the Statute of the Economic Court, Art 32 of the CIS Charter.

122 In a few of its interpretations, however, the Court has ventured to recommend improvements in existing acts, such as the 1996 Procedural Rules of the Council of Heads of State Regarding the Decisions of the Council, Advisory Opinion of 15 05 1996.Google Scholar

123 The May 1995 Summit of the Council of the Heads of State decided on working on a Convention to establish a Court of Justice for the CIS, but it was left without consequence, see Danilenko (n 42).

124 Reich (n 8).

125 Some general comparative information on the state of governance, rule of law and corruption can be obtained from <http://www.worldbank.org/wbi/governance/index.html>.

126 Freinkman, et al. (n 4) 53.Google Scholar

127 Reich (n 8).

128 Dr Reich refers to factors ranging from natural evolution, to influence of ideological changes, to increase of economic interdependence.