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SHINKARETSKAYA G.G. / ECONOMIC COURT OF JUSTICE OF THE COMMONWEALTH OF INDEPENDENT STATES: DEVELOPMENT BY CUSTOM??

09.12.13 22:54

Almost 20 years passed since the Economic Court of Justice was created in 1992. The goal was to establish an authority for the settlement of disputes concerning one only treaty, that is the Asgreement on measures guaranteeing improvement of accounts between economic organizations of the states members of the CIS of 15 May 1992[1]. Later, after the CIS Charter was adopted in January 1993, the Court obtained the legal  status of the Court of justice of the regional integration organization.

         Specialists of a very high grade are always appointed to the Court; yet effectivity of the Court as an international judicial agency has been not at all high: only 13% of the cases heard are the cases of substence, the rest being advisory opinions.

         Quite a lot of effirts have been taken to improve the basic documents and methods of work of the Court, yet the general picture of what the Court really is, stays unchanged. This is high time to look at the Court from the point of view of the experience of others, now quite numerous courts of justice of regional integration organizations.

         1. Legal nature of the Economic Court

         The Economic Court is referred to in the  CIS Charter in the Part VI  with the title “Organs of the Commonwealth”. Article 32 under the name “The Economic Court” says: “The Economic Court acts with the goal to provide implementation of economic obligations in the framework of the Commonwealth”. And further: “The Economic Court acts in accordance with the Agreement on the status of the  Economic Court and the Regulation approved by the Council of the Heads of State”. So, the Charter expounds not the establishment, but the ways to use it;  herefrom one can presume that the Court has already been established.

         And rightly so. The first mention of the Court can be found in Article 5 of the Asgreement on measures guaranteeing improvement of accounts between economic organizations of the states members of the CIS of 15 May 1992. But the name of the Court differs here slightly. The Article says: “Hoziaistvenny[2] Court of Justice of the Commonwealth is created for the settlement of the interstate economic disputes that cannot be ascribed to the competence of the high hoziaistvenny (arbitral) courts of the Commonwealth states”. Thus the created Court looks like an additional part to the collection of  hoziaistvenny courts of different CIS countries.

         Further development of the legal status of the Court we find in Agreement on the status of the  Economic Court of 6 July 1992 with the Regulations of the Court[3]. Though the Agreement speaks already not about a “hoziaistvenny”, but an economic court, this is the same court as in the first agreement, since the Preamble explains the this agreement is adopted with the goal to establish the status of the  Economic Court  of the Commonwealth of  Independent States created in accordance with Article 5  of the Asgreement on measures guaranteeing improvement of accounts between economic organizations of the states members of the CIS of 15 May 1992.

         The Regulation on the  Economic Court  of the Commonwealth of  Independent States is approved “by an agreement of the Council   of the Heads of State  of the Commonwealth 06.07.1992“, though the CIS Charter does not provide for such a document as  an agreement of the Council   of the Heads of State; only decisions are spoken of in Article 23.  So this must be a realization of the rule in Article 32 of the Charter which says that         the Regulation is to be approved by the Council of the Heads of State.

         The Regularion is the document which is usually named “statute” in the documents concerning international courts of justice: organization, mode of activity and competence of the Court are laid down in the Regulation. Still the Regulation is quite laconic and does not embrace all aspects. As will be shown later, the main regulation is included ipso facto in the Rules of the Court, which, according to the Regulation, is approved  by the Plenum of the Court[4].

         The first  Rules of the Court were approved  by the Plenum of the Economic Court of the CIS #2 on 10 July 1997; later the Rules underwent changes not less than 10 times[5]. 

         One of the striking features of the Rules is the inclusion of a number of elements of sustance into them; this is unusual for an international organization such as an international court: rules of procedure are an internal, domestic act worked out by the court itself and composed for the convenience of the court in such a matter as the court supposed the best for the fulfilment of its tasks. A document of this sort must not interfere with the sphere determined by the joint will of sovereign states. Whereas in the Rules of 10 July 1997 such questions as the goal of the Court's activity[6], applicable law, parties to a dispute[7].

         Article 32 of the CIS Charter characterises the Court as “the Court of the CIS”, but no special connections between the Court, on one side, and the  Commonwealth itself or its organs are not established, except that the Regulation must be approved by the Counil of the Heads of State.

         Article 32 of the CIS Charter indicates also that the Economic Court fulfils its tasks in accordance with the Agreement on the status of the  Economic Court. A legal collision arises.

         On the one side,  the Agreement on the status of the Court is accepted by Republics Armenia, Belorussia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Uzbekistan and Russia. There is not a single word in the Agreement concerning an organ  empowered to determine functions and competences of the Court.

         On the other side, the CIS Charter who provides for the Council of the Heads of State is accepted by ten states (Azerbijan, Armenia, Belorussia, Georgia[8], Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Uzbekistan and Russia)[9].

         Thus in this number we can see states which accepted the Agreement on the status of the Court, but generally this is a different set of states. The situation is similar to the one:  we create a Customs union, and the UN General Assembly would determine its functions.

         No hierarchy or correlation among the Agreement on the status of the Court and the Charter is established in both documents. That is why if a state  is a party to the Agreement and not to the CIS Charter, the Council of the Heads of State has no competence as regards it; then the question of compulsory character of the Regulation for it is unresolved.

         On the contrary, if a state is a party to the Charter, but not to the Agreement, is there an obligation to accept the Court's jurisdiction in regard of those disputes which can be submitted to the Court on the basis of the compulsory, and not optional jurisdiction?

No other connection between the  Economic Court  and organs of the Commonwealth is established.

The relations between the  Economic Court  and states members of the Commonwealth are not determined, either. The jurisdiction of the Court spread only to the states members of the  Agreement on the status of the Court. Optional jurisdiction based on the generally recognized principle of state sovereignty is however  possible: every state can turn to any international court of justice.

Besides, as practice shows, if a state leaves the  Agreement on the status of the Court it acts outside the Charter – it disposes its obligations  as determined in the Agreement, and not in the Charter.

The Economic Court can be qualified as a separate international organization. Such an autonomous existence is not rare among international courts. Let's take for example the International Court. In the United Nations Charter it is designated as one of the main organs of the  United Nations (Article 7 of the Charter and Article 1 of the Statute), the Statute being a part of the Charter.

The Court is quite independent in other respects. Its Statute is a part of an international treaty, but the Court itself adopts its Rules (Article 30 of the Statute); the General Assembly with the recommendations of the Security Council has only separate competences concerning the right of the states non-members of the United Nations in the process of adoption of amendments to the Charter (Article 69 of the Statute). No changes in the documents of the  International Court can be done by any organ of the  United Nations. Determination of the forms and sequence of the Court's activity is an exclusive competence of the states parties of the treaty founding the  United Nations.

Being independent from the CIS, the Court is not at all independent from the states parties of the CIS. As provided in the p.10 of the Rules of  procedure there is a Plenum in its  organizational structure. The Plenum is qualified  as highest joint organ of the Court.  The Plenum consists of the Chairman of the Court, his deputies and judges of the Court; chairmen of the high  hoziaistvenny (arbitral) courts of the  states and other high state organs which have the right to settle economic disputes in the states parties.

         The Plenum has an appelate competence: it can examine complants as regards decisions of the  Economic Court. The Plenum's decisions are final.

         Such a dependence of an international court on states members does not exist in any other international organization. The independence of an international court is as important as the independence of a court inside a country. Even international commercial arbitrations which are created to settle disputes between legal persons equally enjoy independence and they work not as an apprentice of a state organ, but they are usually  created  by trade-industrial chambers which have the status of non-commercial and non-governmental organizations.

         Not only the  Economic Court as a whole, but each judge of the Court are deprived of the  independence. According to p.7 of the Regulation “the judges are elected (appointed) in the way adopted in the states members for the election (appointment) of the judges of high  hoziaistvenny, arbitral courts”. That means that the judges are representatives of the state appointed by the state.

         Neither the  Commonwealth as an organization in itegrum, nor its organs have any connection with the process of formation of the  Economic Court. Note that in the International Court's Statute 12 articles describe the order of election of the judges.

Renunciation of a judge is also an exclusive right of a state who appointed the judge. P.7 of the Regulation says: “The Chairman of the Economic Court, his deputies and judges cannot be recalled ahead of  schedule or otherwise dismissed by anybody else except by organs of the appointing (electing) state in cases of abuse of their official position”. This drastically differs from what is said in the Statute of the International Court: “No member of the Court can be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions” (Article 18). Generally in all matters concerning judges the  International Court possesses significant rights:   by the decision of the Court  shall be settled doubts as to alleged  exercise by the judge of any political or administrative function, or engagement in any other occupation of a professional nature (Art.16), acting as agent, counsel, or advocate in any case (Article 17), the right of a member of the Court to  take part in the decision of a particular case (Article 24).

Coming back to the  Economic Court note that although p.9 of the Regulation says that the judges thereof are independent and inviolable, it adds further that they do not fall only under the jurisdiction of the country of stay where they cannot be called to criminal or administrative responsibility by court, arrested or subjected to detention without the consent of the  Economic Court.

Thus the general priciple of justice is violated which one can find in every legal system and in every state: the principle of independence of judges. A judge of any international courtsettling disputes between states must be independent enough to dare to vote against his or her own state. This is impossible in the  Economic Court, where judges actually have the legal status of state officials. The situation is unique[10].  

To sum up, the ways of formation and the exsistence of a controlling organ consisting from the representatives of states do not allow to qualify the  Economic Court as an international judicial body. In short, it is an inter-state organ the functions of which will be analyzed later.

2.Competences of the  Economic Court

The volume of competences and the sphere of action are determined in the founding documents of the  Economic Court as vaguely as many other questions; there is no general definition, and only in the document of so to say, second level, that is in the Rules of  procedure, there is a rule that the question of competence of the  Economic Court in respect of a separate case is decided by the Court itself (college, full court, Plenum) (p.26).

         The right of the court to determine its jurisdiction in every separate case is as a rule provided in the documents of international courts; every decision of an international court contains the first stage of deliberations, that is determination of availability of the court's competence in the case. Of course, this right of a court to determine the  availability  of the  competence is as a rule an addition to general rules, as we can see in Art.36 of the International Court or in Part XV of the UN Convention on the Law of the Sea 1982.

Competence ratione personae

         Neither the  Agreement on the status of the Court nor the Rules of  procedure determine explicitly who can be parties to the dispute submitted to the Court. P.3 of the Rules of  procedure says: “Settlement of inter-state economic disputes is in the province of the Economic Court”: this is, of course, the determination of the province on the object, that is, competence ratione materiae, and not the determination of the jurisdiction of the Court, that is, of its right to declare for the states, what is law. The situation does not become clearer when we take p.3: “Disputes are considered by the Economic Court on the submission by the interested states in the person of their plenipotentiary organs, institutions of the Commonwealth”. The essence of the above formula is the formalities of the start of consideration of the dispute: the consideration begins after the moment the dispute is submitted to the Court by an interested state or an institution of the Commonwealth. It is not clear, if the submitting person coinsids with a party of the dispute.

         The words “interested states” also merit some consideration. There is no clearing in the documents of the Court; when formulating its decisions and advisory opinions the Court did not pay attention to the term. Not only an immediately suffering state might be  interested in the outcome of the dispute.

Here we have to take into consideration the functions of the Court though it is differently described in different documents:

- securing implementation of economic obligations in the framework of the Commonwealth (Art.32 of the CIS Charter);

-  securing uniform application of agreements  of the states members of the  Commonwealth of Independent States (p.1 of the Rules of  procedure)

The above discussed norm of the Charter is much more narrow, which means rhat the person in respect of which economic obligations are broken is to turn to the judicial protection. The norm in the Rules of  procedure is somewhat different: the function of the Court is not to protect and restore rights of the injured subject, but to maintain the legal order established in the area of the CIS.

Since the Rules of  procedure is approved “by the Agreement of the Council of the Heads of State”, by which also the CIS Charter was approved, we can use here a common rule here and presume that the later rule abolished the earlier one; then the norm of the Rules of  procedure is to be authentic. Then the “interested states ” are all states members of the Agreement on the status of the Economic Court and more than that – all states members of  the CIS: the legal order in the framework of the CIS is the expression of the sovereign will of all its memebers, and the obligations stemming therefrom are obligations erga omnes, that is, obligations of every member towards all the rest. Every member has the right to put a question of responsibility of any other member for undue implementation of the obligations.

The definition of such a substantive notion as a party to a dispute is included into an executive document of a second row, that is into the Rules of  procedure: “Parties to a dispute or other interested persons in the case before the Economic Court may be states parties to the Commonwealth, organs and institutions of the Commonwealth as well as other states, if the settlement of the dispute in the Economic Court is provided by an international treaty and the present Rules of  procedure”.

One of the subjects who can install the proceedings in the Economic Court are “institutions of the Commonwealth”, though the Charter of the CIS does not contain such a term or notion. In the Rules of  procedure the words “organs and institutions of the Commonwealth” are used (p.5); p.1 explains that  organs and institutions of the Commonwealth are organizational structures of the  Commonwealth created in accordance with its Charter as well as treaties (decisions) of the states members of the Commonwealth. Still let's get into account that the Rules of  procedure is the document of the internal law created by the Court itself (since it is approved by the Plenum); the document does not lays down explicitly the will of the states.

Since the Rules of  procedure explain to some extent the terms it can be qualified as a document of interpretation.

Decisions of the Court do not mention the words “organs” and “institutions”.

In connection with the clause “ interested states in the person of their plenipotentiary organs” the Court several times undertook the interpretation of the notion “plenipotentiary organs” with the goal to recognize their right to turn to the Court[11].

An important element of the notion of a court's jurisdiction is the question of compulsory jurisdiction, because, if the jurisdiction is compulsory, then the proceedings of  a dispute begins on the submission of one of the parties, and the other side may not reject the proceedings. In the times of the USSR our country rejected all international judicial bodies, and not a single time accepted the jurisdiction of the International Court of Justice. In fact many states occupy the same pusition; the fact is quite widely known that the general acceptance of the  compulsory jurisdiction of the International Court by p.2 Article 36 of the Statute of the  International Court is made by a very small number of states, statistically insignificant. In fact the small number of states parties to the Agreement on the status of the Economic Court is the manifestation of that same distrust of states towards international adjudication. Formally only six states are parties to the agreement; besides that in the informations on the work of the Court we never see the names of the judges from Tajikistan and Uzbekistan, so that practically only four states take part in the proceedings.

The founding documents of the  Economic Court do not explicitly provide for the ways to start judicial proceedings upon the claim of one party to a dispute. P.54 of the Rules of procedure says that “Suits to the Economic Court about the settlement of disputes (about realization of competences of the Economic Court provided for in points 22 and 23 of the present Rules) are submitted by interested states as well as organs, institutions of the Commonwealth in the person of their plenipotenciary organs or plenipotenciary representatives”; nothing is said, if the  other party has to agree to the proceedings.

Let us turn to the practice of the Court. The first case of substance was the case “On undue implementation by the Government of The Republic of Kazakhstan of the Agreement of 9 February 1992”[12] upon the claim by Belorussia. The Court did not indulge into the question of the presence of jurisdiction, it immediately started to decide the matter of substance. The same method was practiced by the Court when considering cases “On undue implementation by the Government of the Republic of Kazakhstan of the Agreement of 4 August 1993 and on the payment of debt to the Republic of Belorussia”[13], «On undue implementation by the Government of the Republic of Kazakhstan of the Agreement on economic, scientific and cultural cooperation between regions of the Republic of Kazakhstan and Nizhegorodskaya region of the Russian Federation of 11 November 1992»[14] and in other cases.

Of course, in all these cases both claimant and defendant were the states parties to the  Agreement on the status of the Economic Court.

Still odd looks p.37 of the Rules: “Parties to the dispute under consideration in the college of the Economic Court are the party-claimant and the party-defendant. The parties possess equal rights in the process of exercise of justice”. How can sovereign states not possess equal rights?

Competence ratione materiae

         The first part of Article 32 of the CIS Charter says that “The Economic Court acts with the goal to provide implementation of economic obligations in the framework of the Commonwealth” and later: “Settlement of disputes arising in the course of implementation of economic obligations is in the province of the Economic Court”. Nevertheless, “the Court may settle also other disputes put into iys provunce by agreements of the states parties”.

The CIS Charter also invest the Economic court with the interpretive competence, but only limited: “The Economic Court has the right to interpret provisions of agreements and other acts of the Commonwealth on economic questions”.

The Regulations  of the Court  makes the interpretive competence wider: interpretation of application of agreements, other acts  of the Commonwealth and its institutions; legislative acts of the former USSR for the mutually agreed period of their application,  including the question of permissibility to apply the acts as not contradicting agreements and other acts  of the Commonwealth based upon them (p.5). This latter provision has already almost fully lost its significance.

 The Rules spread  the interpretive competence to international treaties of the states parties  of the Commonwealth as well as “acts of the Commonwealth” (p.24). In a special chapter the process of interpretation laid down with a lot of burosratic details.

The practic shows that interpretation is a main occupation of the Court. Of course,  the Economic Court, like any other international body settling disputes between states cannot but has recourse to interpretation of the whole volume of normative material ungerlying disputes. This means that  the Economic Court cannot content itself with economic relations only, but must go into other spheres of international relations. This is well illustrated by the practice of the Court where decisions on social questions are abundant[15].

So the question arises: does  the Economic Court act ultra vires, that is, does it come outside its competences?

To answer the question let's pay attention to the fact that there is a fundamental source of the competence of any judicial body. And the source is the agreement of states, their joint will expressed in the founding treaty.

As I said earlier, there is no explicite, having a single meaning authorization in the founding documents of the  Economic Court. During the practice  the Economic Court acting independently was expressing its own understanding of its functions and competences. States parties to the  founding documents could protest and express their attitude towards its actions. If they do not protest, this means their acquiescence that is, their recognition as legitimate of the Court's actions.

The  acquiescence is an element of formation of a customary rule. Non-expression of protests is the repeating uniform behavior formatting a customary rule.

Thus the competences of the  Economic Court are specisied by custom. The logic of existence and activity of the  Economic Court leads to formation of the functions characteristic of the courts of justice of regional integration organizations.

 



[1]             Official site of the CIS Economic Court of Justice. URL: http://www.sudsng.org/database/statut.

[2]    The word  “Hoziaistvenny” means literally the same as “economic”, but is usually used concerning domestic economy.

[3]           Соглашение о статусе Экономического Суда Содружества Независимых Государств от 6 июля 1992 г. // Действующее международное право / Сост. Ю.М. Колосов, Э.С. Кривчикова. Т. 3. М., 1997. С. 196-197.

[4]           Texts see on the site of the Court.  http://sudsng.org/download_files/statdocs/reglament_eccis_2009.pdf.

[5]           Of 6 December 2004, of 22 June 2007 #2,  of 4 November 2008 #2, of 13 March 2009 # 4, of 14 April 2010 #1, of 26 May 2011 #2, of 11 January 2013 to name a few.

[6]    Note that the goal determined in the Rules (to secure the uniform application of the treaties of the states members of the Commonwealth) does not coincide with the formula in the Regulation (uniform application of agreements and based on them economic obligations and treaties).

[7]    A guess suggests itself that the judges themselves tried to reframe that court so that it could function as a court of justice.

 

[8]         Georgia left the CIS in 2009.

[9]    Turkmenistan and Ukraine abstained.

 

[10]     See: Шинкарецкая Г.Г. Тенденции развития судебных средств мирного разрешения международных споров. М., 2009. С.135-142.

[11]   E.g.: Definition of the Economic Court of the CIS  № 01-1/3-2000 of 7 June 2000;  Definition

            № 01-1/2-04 of 20 May 2004.

[12]   Decision of the Economic Court of the CIS № 03/94 of 14 December 1994.

[13]   Decision of the Economic Court of the CIS  № 04/95 of 30 March 1995.

[14]   Decision of the Economic Court of the CIS № С-1/15-96 of 3 October 1996.

[15]   E.g.: Decision  № 01-1/5-04 of 31  January 2005 on interpretation of the Agreement on establishment of the Interstate bank of 22 January 1993,  the Statute of the  Interstate bank of 22 January 1993 and the Agreement between the  Interstate bank and the Government of the Russian Federation on the conditions of the stay of the  Interstate bank in the territory of the Russian Federation of 30 June 1996;  Decision № 01-1/1-05 of 22 November 2005 on nterpretation of the  Decision of the Council of the heads of State of the  Commonwealth of Independent States on improvement and reformation of the structure of organs of the Commonwealth of Independent States of 2 April 1999.

 

 





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