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. 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.
Legal nature of 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.
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 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
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.
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.
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.
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.
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, applicable law, parties to a dispute.
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.
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, Kazakhstan, Kyrgyzstan,
Moldova, Tajikistan, Uzbekistan
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.
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
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
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 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
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
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.
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.
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).
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
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.
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
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.
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.
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.
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)
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.
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
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.
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
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
so that practically only four states take part in the proceedings.
The founding documents of the
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”
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”,
«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»
and in other cases.
course, in all these cases both claimant and defendant were the states parties
to the Agreement
on the status of the Economic
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?
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
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
latter provision has already almost fully lost its significance.
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.
So the question arises: does the Economic Court
act ultra vires, that is, does it come outside its competences?
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.
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.
Official site of the CIS Economic Court of Justice. URL: http://www.sudsng.org/database/statut.
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.
 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
left the CIS in 2009.