The extent of judicial activism exercised by Court of Eurasian Economic Union
On January 1 of 2015, four member states – Russia, Kazakhstan, Belarus and Armenia – established the Eurasian Economic Union with a firm aim of bolstering the regional integration and gaining the mutual seeds of cooperation in different areas from a customs union to some form of financial integration (TEAEU 2015). Through delegating the authority to an institution of a supranational character, countries looked up upon the other successful effort of integration – the European Union with which the newly founded institution shares lots of common structural parallels.
Apart from a recognized legal personality, the EAEU created a distinct EAEU law that is protected by the Court of EAEU which serves as the permanent judicial body of the Union. It is regulated by the Statute of the Court of the Eurasian Economic Union conforming to the Annex 2 to the Astana Treaty (Art. 19, TEAEU 2015).
Interestingly, in the history of international regional integration, these permanent courts unexpectedly took the lead in integrating the members through different tools the most foundational of which is judicial activism (Hix and Høyland 2011, 84). One example is the European Union where the Court of Justice established the direct effect and the supremacy principles creating the new mode of integration based on the removal of national rules (Hix and Høyland 2011, 85). Nevertheless, much of that power depends on the factors constraining the institutional set-up (Ishiyama and Ishiyama 2002). Thus, the distinct question arises here – is the Court of EAEU provided with the similar potential of judicial activism and if it is or not, what factors contributed most to that presence/absence of exercising political power? Within the theoretical framework developed by Shannon Ishiyama and John Ishiyama which predominantly focuses on the inter-institutional dynamic, this research paper will argue that the activist power of the Court of EAEU is indeed limited and depends on the extent to which the Court is constitutionally powerful and independent and the degree of competition among the member governments.
“Judicial activism”
Generally, the term “judicial activism” implies different meanings for different scholars. But at the heart of the concept, most agree that it involves the ability of judges to exercise political power over the other branches of power or political/administrative institutions (Ishiyama and Ishiyama 2002, 720). Specifically, it might include from merely being an autonomous agent with a greater degree of independence to an ability to strike down the legislation. These tools of activism, for specific factors which are going to be discussed in more detail, are sometimes present or absent depending on an institution. As an illustration, while the European Court of Justice has a Constitutional right to issue preliminary rulings procedure or hear enforcement proceedings from the member states, other courts like OHADA use different mechanisms like the annulment jurisdiction (Virzo 2011, 287). This variance means that the power of judicial activism of one court can be studied comparatively to the other.
Alternative explanations
Regarding the EAEU case, most scholars emphasize the neofunctionalism-intergovernmentalism debate in answering the activism puzzle. On the one hand, intergovernmentalists claim that the Court is merely an agent of member states which exploit it for their specific purposes (Mattli and Slaughter 1998, 180). Those purposes ranging from economic benefits to enhanced relations with the other member countries, however, might clash with giving up the autonomy – a necessary cost in the process of integration (Hix and Høyland 2011, 97). In those situations, states have an interest to curb the powers of the court either during the process of creating the institution or through the secondary legislation. It means that states delegate some authority only for pareto-efficient outcomes like observing the compliance of other states with the EAEU law, etc (Carrubba and Gabel 2014, 30). In these circumstances, courts themselves have no interest to take stances that may clash with the interests of its principals. Thus, the Court is solely a dispute settlement mechanism which applies the rules and treaty provisions generated by the member countries. However, the theory cannot explain the major innovation within the law of the EAEU related to the principle of direct applicability – that some acts become part of a national law immediately. Furthermore, the modest substantive jurisdiction further undermines the credibility of an intergovernmentalism.
On the other hand, neofunctionalists share the view that states are not unitary actors and that the Court has great discretion in exercising its power. In this case, with the help of individual litigants and national courts, the Court of EAEU can push for their own agenda through actively engaging in the precedent-setting or ruling in favor of integrative interests (Mattli and Slaughter 1998, 180). National courts themselves have the interest to cooperate with the Court of EAEU in order to gain more power and prestige within the national legal systems, whilst for individual litigants, the existence of another mechanism for protecting their rights was a comfortable condition (Benvenisti and Downs 2014). Nonetheless, evidence shows the reverse situation. Apart from the constitutional weakness of the Court of EAEU (e.g. an inability to issue preliminary rulings), national courts were reluctant to acknowledge the ambitious goals of an institution which was clearly illustrated after the ruling on the case of Iuzhnyi Kuzbass (Kembayev 2016, 352). Even though the number of individual litigants was decent, most of them were rejected or withdrawn. Thus, the integrationist logic of the neofunctionalist perspective is undermined in various ways.
The last alternative explanation to be compared with signifies the value of the number of member states. Scholars like Alter (1998) point out that in the case of the Court of Justice of the EU, even though states opposed the Court’s activist actions, because of the joint decision trap arising from the wide range of member states with different views on the issue, the curbing of power was impossible. However, in the case of the EAEU, there were only three founding members with two joining later which means they have more room for dialogue and to a greater degree, it eliminates the causes of conflicts. It means they are more able to unilaterally ignore or dismiss the decisions of the Court with no associated costs (Kooijmans 2007). Hence, Courts have no desire to pursue an activist strategy realizing the deadlock (Kooijmans 2007). Even though this theory might explain the pattern in the EAEU, the global trends within international courts reject the hypothesis. For instance, despite the large pool of member countries with different socioeconomic backgrounds, the courts of OHADA and the ECOWAS Community Court of Justice have proven to neglect the judicial activism in favor of choosing a more dispute-settlement way (Alter 2012, 148). Thus, the theory is incomplete in explaining the judicial activism trends.
The dependent variable
Proceeding to our model, even though it is hard to quantify or qualify the judicial activism, the concept can be measured in three ways. According to Ishiyama and Ishiyama (2002, 720), one of the fundamental aspects is the number of caseloads that the court decides. It is important as the higher/lower caseload illustrates the credibility of the Court. Moreover, the Court with lower caseload has insignificant opportunities to influence the public policy than does a court with more active bench (Ishiyama and Ishiyama 2002, 720).
The second way encompasses the court’s jurisdiction, specifically whether the court has an ability to hear issues on a broad range of issues. It remains vital due to the fact that broader jurisdiction provides a court with a chance to increase the breadth of judicial policymaking (Ishiyama and Ishiyama 2002, 720).
The third aspect is about the ability to strike down the laws (Ishiyama and Ishiyama 2002, 727). However, the absence of this activity in the Court of EAEU history makes it hard to test the hypotheses. Thus, the ability to strike down the laws will be exchanged with an ability to make decisions independently and in favor of integration. These are analogous as both the former and the latter imply that the Court has a capacity to exercise a great political power which is a milestone of the judicial activism.
Independent variables
Independent variables of the theoretical framework are the two key things. First is, to what extent is the Court constitutionally strong and independent (Ishiyama and Ishiyama 2002, 728). It is clear that an independent court may not always choose to assert itself in various ways, however, it puts them in a good position to be able to resist the pressure from the executive or legislative branches (Holland 1991). It means, though judicial independence does not guarantee judicial activism, it creates a compelling potential to it (Ishiyama and Ishiyama 2002, 726). Thus, I expect that if the Astana Treaty signifies the independence of the Court of EAEU, then the components of judicial activism will be assured.
The second is the degree of competition among member states for an influence. As Holland (1991, 9) identifies if states are unilateral in their incentives, judges are likely to share the perspectives of their respective countries. Furthermore, even dissenting judges cannot push for activism as the member states with equal concerns have an ability to collectively limit the powers of the Court or even ignore the decisions (Ishiyama and Ishiyama 2002, 727). Thus, I forecast that if the six parties to the EAEU share similar views towards the Court, the rate of activism will be significantly low.
Analysis of independent variables
Analyzing the sources of primary data, it was found out that the Court of EAEU is indeed constitutionally weak and dependent. From the legislative perspective, “no decision of the Court may extend its legality beyond the issue area in the application (TEAEU 2015, 141).” Thus, it automatically excludes the formulation of precedent based cases or the spillover effects that could potentially advance the integration. In addition, “any decision of the Court cannot override the general rules of the Union law and the legislation of the Member States, nor may it create new ones (TEAEU 2015, 141).” It sharply differs from its counterpart, the CJEU, which through cases like Van Gend en Loos was able to make the EU law supreme (Benvenisti and Downs 2014).
Inter-institutionally, the judges of the Court of EAEU may be dismissed by the Supreme Council on the initiation of the Member State, the Court or the judge himself (TEAEU 2015, 130). It highlights the flaw of independence in the activities of judges by providing an unimaginable power to the Supreme Council in contrast to the CJEU where judges can be discharged only by the unanimity of Advocates-General and the other judges (Art. 6, TFEU 2009, 165). All of that indeed demonstrate the constitutional weakness and dependence of the Court.
The degree of competition among members is also found out to be scarce. The regime type closeness and the dominance of Russia in the region prove that (Karliuk 2017, 34). In the case of the CJEU, there were different types of regimes including those countries which cared more about restraining the powerful member states than losing an autonomy thus the consensus on the expanding powers of the CJEU was lacking (Benvenisti and Downs 2014). While within the EAEU, that consensus to restrain the Court was further solidified in the aftermath of the EURASEC Court – a highly activist institution in the region which radically asserted itself beginning from its first preliminary ruling (Karliuk 2017, 47). Even though we can’t assume the incentive structures of the member countries, the broad political factors are sufficient at this stage.
From the given analysis, the rate of judicial activism along all the three measured pillars is expected to be very low.
Results
As forecasted, the first measure of activism – the number of caseloads is marginal. With only 11 decisions prior to its functioning, the Court remains one of the most passive institutions of the whole union (Court of EAEU, n.d.). Among them, only one dispute involved the member countries (Russia v. Belarus Customs case), others merely being the cases of individual/business litigants (Court of EAEU, n.d.). Comparatively, the predecessor court – EURASEC – decided on 19 cases in a much shorter horizon (Court of EAEU, n.d.). Interestingly, most scholars argue that precisely for that activism of the EURASEC the member countries might have curbed the powers of the newly established court and that is one reason why the number of caseloads is low (Ispolinov 2017). In these circumstances, it is clear that the Court has only a diminished ability to actively push for their interests. What is more contentious is that it might illustrate the growing skepticism or the lack of trust to the supranational Court of EAEU as fewer and fewer litigants are applying to be considered (Court of EAEU, n.d.). Nevertheless, analyzing this hypothesis requires an extensive empirical research based on the cross-comparative research which is out of the focus of this paper.
Second results consider the jurisdiction. Due to the weak Constitutional power and the strong cooperation of member states, it was expected that the scope of cases the Court can analyze would not vary much. However, it was found out that indeed the Court has a broad jurisdiction which allows it to influence the multiple aspects of the Union (TEAEU 2015). It may hear any legal disputes stemming from the implementation of the EAEU law which provides an institution with an advantage over the other similar courts like the CIS Economic Court or the Community Court which mainly examine economic disputes (Kembayev 2016, 353).
From the procedural jurisdiction part, though, main weakness remains the inability of the EAEU institutions, particularly, the Commission, to launch the legal proceedings (Kembayev 2016). It hinders the Commission to have greater oversight power over the correct application of its laws, thus also striping up the capacity of the Court to further the integration. In the end, even though the procedural jurisdiction is overly bounded to allow more space for activism, the substantive jurisdiction unexpectedly encompasses abundant competences. It might be done so to increase the prestige of the Union but analyzing these correlation links is also out of the scope of this paper.
The third thing being assessed is the degree of political independence or the ability to oppose the demands of member countries in deciding as a bench. Several problems emerged during the hypotheses testing. First, an insufficient amount of decisions does not allow to derive the quantitative results and the fact that most of these decisions were purely about the dispute among parties, analyzing whether the Court could or could not act independently is also complicated. Secondly, the lack of an access to the decision-making of the Court farther questions our ability to check for the independence of judges. For that reason, the case study method was chosen in order to analyze the legal background of a specific case and identify the extent of an independent political power that judges are or can exercise. The dissenting opinions of the judges of the Court of EAEU were chosen as a basis of analysis as the subjective interpretation of the legal documents challenges the validity of the research.
IE Tarasik Case
The litigant (Tarasik K.) imported cars into the Republic of Kazakhstan, which he declared as motor vehicles for the carriage of goods in accordance with the commodity item #8704 (Tarasik v. Eurasian Economic Commission 2015). This classification has not been changed by the customs authorities of Kazakhstan. At the same time, when releasing goods, the customs authorities of Kazakhstan added an excise tax to these goods justifying that it is a passenger car which is an excisable good in accordance with the Tax Code of Kazakhstan. Disagreeing with the actions, Tarasik K. appealed to the Eurasian Economic Commission arguing that the state is violating the basic principles of uniform application and implementation of international treaties that form the legal basis of the Customs Union (Tarasik v. Eurasian Economic Commission 2015). In its case, the Commission simply replied that assessing the customs decisions are not in their competence. Afterwards, Tarasik K. sued the Commission to the Court of EAEU for inaction but with no success – the Court also highlighted the lack of competence of the Commission regarding the customs decisions of member countries.
However, according to the dissenting opinion of Chayka (2015, 7), a reputable judge from the Court of EAEU, the change of the type of the chassis from the one confirmed by the manufacturers rudely contradicts the Geneva Convention as an act of applicable law. Wherein, the national legislation of the Republic of Kazakhstan even does not clearly define the concept of “the passenger car chassis.” (Chayka 2015, 9) The principle of the uniform application of the norms is associated with the principle of formal certainty and means the need for accuracy, clarity and unambiguity of international legal norms, including those contained in the national legislation of the Member States of the Union and their consistency in the system of existing international legal regulation. Absence of this criterion gives rise to conflicting law enforcement practices like in this case creating possibilities of arbitrary application or ambiguous interpretation which might end up with the violation of rights of economic entities (Chayka 2015, 10). Thus, the Court should not assess the ability of the Commission to interfere into the decisions of member states, but their sole obligation of ensuring the uniform application of the law (Chayka 2015, 11).
As another reputable judge of the Court of EAEU, Neshetayeva (2016, 8) claims, in the end, the Court should have ruled against the Commission as the free flow of four freedoms are guaranteed only when these kinds of practices trying to differentiate the check and control systems are abolished. Hence, it is clear that given the potential discretion in the ruling, the Court decided to vote in favor of the institution and against the basic principles of law and the basic purpose of integrating in the four areas demonstrating the significant limit in an ability to take activist decisions.
Conclusion
To recap, the Court of EAEU which emerged as a permanent judicial body of the EAEU was viewed as an ambitious project, but in reality, it became a merely dispute-settlement mechanism with the bounded ability to take bold positions. Analyzing the judicial activism via three ways, it was found out that the constitutional weakness and the consensual view of member states towards the Court activism significantly limited the Court in its desire to integrate the union as its counterpart in Europe.
This paper opens up multiple venues for future research. First is the need for quantitative analysis of cross-country data involving the interaction of states with not only the international courts but also the local ones to identify how the regime-type might influence the credibility and the potential for judicial activism of those courts. Secondly, the greater empirical research is needed to identify how the concerns over the prestige of an institution empower the courts of those respective institutions. Thirdly, through the interviews with the reputable judges of the Union, one should examine how the institutional interactions shape the discretion of judges in deciding as a bench.
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