Eurasian integration: general values and legal institutions.

2020 ◽  
Vol 2 (3) ◽  
pp. 62-85
Author(s):  
T. N. Neshataeva ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Ethical Issues ◽  
Modern World ◽  
Dialectical Logic ◽  
The Rule Of Law ◽  
National Courts ◽  
Eurasian Economic Union ◽  
Economic Union ◽  
Jus Cogens

Introduction. The article is devoted to the analysis of the civilisational foundations and features of Eurasian integration, their reflection in the charter documents and the practice of the Court of the Eurasian Economic Union. The author describes cultural integrity, including religion. Teoretical Basis. Methods. Specifically, in the modern world, the author distinguishes four civilisations: Christian, Sinic, Indian, and Muslim. Russia (the pivotal state of the Eurasian integration under discussion) is a poly-civilisational state, because its culture is based on historical multinationality, multiconfessionality, and multiculturalism. The basis of Russian law is Christian values (for example, the rule of law), but elements that derive from Islam (the “rule of power”), and Buddhism (the protection of natural connections) are also very important. The article uses empirical methods of comparison, description, interpretation, theoretical methods of formal and dialectical logic. Results. The author shows that compared with European integration, Eurasianism is based on slightly different values, namely: 1) the rule of law as a formal order; 2) collectivism and collegiality – the special significance of the rights and interests of an indefinite circle of persons in comparison with individual ones; 3) the priority of natural relationships in the group. The Eurasian Economic Union (EAEU) is an international organisation of a supranational type. In its statutory documents the religious and civilisational peculiarities characteristic of Eurasianism were also taken into account. The principles of international law (as the super-imperative norms of jus cogens) have priority in application, but differ in special content, namely: 1) respect for the sovereign rights of states; 2) equality of states, which are implemented not formally, but taking into account economic reality, and; 3) the principle of pacta sunt servanda. Specifically, the EAEU Commission and the corresponding Court are created to monitor compliance with the treaties. The court also has peculiar features: 1) In the documents the principle of independence of judges is especially emphasised (the chairman is the first among equals); 2) the relations of the Court with the national courts of the Member States of the Union are built in a special way: they take the positions of the Court in their practice on a voluntary basis. The international court of a supranational union is mainly aimed at overcoming dualism – duality in the law of integration association. This creates a uniform understanding of the norms of union law, which cannot be reduced only to the positive component that the court corrects with the natural essence of law – the protection of human rights. The author gives examples of problems encountered in building the EAEU: 1) the ratio of the principle of pacta sunt servanda and the principle of national sovereignty; 2) the principle of equality in its real, not formal essence. Discussion and Conclusion. The EAEU takes into account both the principles of Christian civilisation (respect for law), and the principles of other civilisations (for example, respect for power and the principles of harmonious construction of relations within the Union – multiculturalism). It is important for the Court to find a balance between activism and conservatism both in resolving international conflicts and in interpreting law. So, activism in the EAEU Court is manifested in human rights issues, and conservatism: in matters of monitoring the activities of the Commission. An important problem is the balance in ethical issues, which is associated with the multiconfessional composition of the Eurasian court. The author concludes by noting that in a situation where the requirements for the appointment of judges are blurred and there is no verification mechanism, it is difficult for the international composition of the Court to find ethical consensus.

The Disintegration of the Judiciary Within Eurasian Integration

2019 ◽  
Vol 44 (3) ◽  
pp. 406-435
Author(s):  
Maksim Karliuk
Keyword(s):  
Rule Of Law ◽  
International Organization ◽  
The Rule Of Law ◽  
Application Of Law ◽  
Common System ◽  
National Courts ◽  
Eurasian Economic Union ◽  
Soviet Space ◽  
Economic Union ◽  
Post Soviet Space

The Eurasian Economic Union (‘eaeu’) – an international organization for regional economic integration in post-Soviet space – has a judicial body aimed at ensuring uniform application of law. This article argues that the eaeu Court will struggle in achieving its aim as there are issues of independence, it has diminished powers, and limits have been imposed on its interpretative practices, at least as compared to its predecessor. This may lead to problems in respecting the rule of law and ‘dis-integrates’ the judiciary in the sense of a common system involving national courts. At the same time, it is also argued that, although the Court’s procedural and substantive powers have been limited, the attempt to limit certain interpretative powers of the Court can hardly result in meaningful consequences for the development of law.

scholarly journals Ombudsman Institute: Basic Models and Problems of Reception in Constitutional Law

2020 ◽  
Vol 9 (29) ◽  
pp. 273-281
Author(s):  
Oleksandr Batanov ◽  
Natalia Verlos ◽  
Olga Lotiuk ◽  
Olena Sinkevych
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Classical System ◽  
Modern World ◽  
Persons With Disabilities ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Rights Protection

In the search for optimal ways of improving the normative foundations and organizational-legal forms of human rights protection, the problem of institutional support of relevant processes is actualized. The protection of human rights is inherently linked to all public-power structures of the mechanism of state power and is possible only in the context of optimal implementation of the principles of the rule of law, separation of powers, democratic, social, rule of law. In Ukraine, in the context of constitutional modernization, the problem of improving the organizational-legal mechanism of human rights protection remains urgent. For this purpose, the Institute of the Ombudsman operates in Ukraine. Its implementation fully meets the tendencies existing in the modern democratic world and is a reaction to those conflicts and contradictions that exist in the field of human rights protection. Nevertheless, the social insecurity of certain sections of the population (children, pensioners, persons with disabilities, servicemen, migrants, internally displaced persons, ethnic minorities, persons belonging to the LGBTI community, entrepreneurs, patients and other categories of citizens) is an indicator of the relevance of the problem and the functioning of national human rights protection mechanisms, including the strengthening of the relevant oversight functions of the Ombudsman. The subject of the research is the problems of reception in the constitutional law of the basic models of organization of the Ombudsman Institute in the mechanism of functioning of the rule of law. The object of the study is the public relations that delve into the human rights protection process and the ombudsman's exclusivity in the relevant processes. The methodological basis of the study are general scientific methods, such as dialectical, comparative-legal, formal-legal, historical, and logical methods of cognition, as well as special and private-law methods. The history of development, the causes, the processes of institutionalization and constitution of the ombudsman services in the modern world, the permanent transformation of their functions and the differentiation of their specialization are evidence of the improvement of the classical system of separation of powers and the constitutional mechanism of its organization. It is argued that the functional isolation, independence, and organizational diversity of the control bodies, first of all, the Ombudsmen, is a testament to the formation of control power, the conceptual idea of which is the existence of a system of measures to ensure control over public authority.

scholarly journals RULE OF LAW IMPLEMENTATION INTO THE ADMINISTRATIVE PROCESS IN UKRAINE

2021 ◽  
Vol 1 ◽  
pp. 73-80
Author(s):  
Іnnа Pozigun
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Practice ◽  
Public Authorities ◽  
Administrative Process ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Systematic Training ◽  
Western Law

The relevance of the study is stipulated by the necessity to determine the directions of the rule of law implementation (as a fundamental value of Western law culture) into the national law system. The statistics of the European Court of Human Rights, the study of the rule of law index in the world, the decisions of national courts as to the rule of law principle implementation are analyzed, some decisions of the European Court of Human Rights as to the rule of law are processed. Emphasis is placed on the impossibility of adequate study of the rule of law within the normative understanding of law. The rule of law can function only if the provisions of the natural and law understanding of law are implemented. Only by realizing what the rule of law is can it be implemented into legal practice. It is noted that the analysis of national courts’ judgments allowed experts to draw a number of conclusions about the inappropriate level of the rule of law principle application by domestic judges, which is usually brought to quoting individual judgments of the European Court of Human Rights (mostly the same) or references to articles of the Convention on Human Rights and Fundamental Freedoms (the implicit content of the human rights enshrined in these articles is not disclosed). The following areas of the rule of law implementation are noted and characterized. First, the ideological direction: given that the principle of the rule of law is inherent in Western tradition of law based on a natural understanding of law, and is incompatible with the normative school of law, to which indicates the lack of understanding of the content of this principle by a number of judges, then without changing the legal paradigm further implementation of the rule of law principle has no sense. Only by realizing what the rule of law is, it can it be implemented into legal practice. This direction involves radical changes in the system of national law, which can occur only due to involvement of public authorities in legal values. Secondly, the scientific and practical direction: if within the first direction the emphasis is on future employees of public authorities, this direction concerns those persons who implement the state policy in life today. A prerequisite for holding a position in public authorities should be a systematic training, an integral part of which should be mastering the subject within which employees will learn about the understanding of human rights, their implicit nature, the rule of law principle, study the practice of the European Court of Human Rights. Third, the normative and legal direction: the necessity of adoption of the legal act which will systematically define the order of realization of administrative process is proved.

The Court of the Eurasian Economic Union: An Adequate Body for Facilitating Eurasian Integration?

2016 ◽  
Vol 41 (3-4) ◽  
pp. 342-367 ◽  
Author(s):  
Zhenis Kembayev
Keyword(s):  
Rule Of Law ◽  
The European Union ◽  
Political Will ◽  
Community Court ◽  
The Rule Of Law ◽  
Eurasian Economic Union ◽  
Court Of Justice ◽  
First Case ◽  
Independent States ◽  
Economic Union

This article examines the structure and competences of the Court of the Eurasian Economic Union (eaeu Court). In doing so, it provides a comparative analysis of the eaeu Court with other judicial bodies created in the post-Soviet area, the Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community (Community Court), as well as in some respects with the Court of Justice of the European Union (cjeu). Summarizing major problems of the eaeu Court and setting out the Court’s first case, the article argues that the rules governing the activities of the eaeu Court represent a significant setback against the progress achieved previously by the Community Court. This setback reflects the lack of political will of the eaeu members to transform the eaeu Court into an effective judicial body similar to the cjeu and their insufficient commitment to the rule of law.

11. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
National Courts ◽  
State Immunity ◽  
Internal Affairs ◽  
Judicial Scrutiny ◽  
Jus Cogens ◽  
Right Of Access

This chapter examines the methods by which States prevent their national courts from deciding disputes that relate to the internal affairs of another State. It considers three main ‘avoidance techniques’: State immunity, act of State, and non-justiciability. It discusses the arguments for and against the current prohibition on the determination of one State’s disputes in the national courts of another State, and identifies the challenges presented by the rule of law, an individual’s right of access to court, and the implementation of jus cogens norms to the maintenance of these avoidance techniques. It concludes with the observation that the pendulum continues to swing between prioritizing sovereignty by protecting the activities of States from judicial scrutiny and calling for greater accountability and remedies for violations of international law.

scholarly journals ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW

2017 ◽  
pp. 0-0
Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
European Convention ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Legal Space

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

scholarly journals Securing Human Rights on the Post-Soviet Space

2015 ◽  
pp. 56-62
Author(s):  
R. A. Kasyanov ◽  
E. A. Torkunova
Keyword(s):  
Human Rights ◽  
Legal Rights ◽  
Modern World ◽  
The European Union ◽  
Eurasian Economic Union ◽  
Financial Interests ◽  
Independent States ◽  
Soviet Space ◽  
Economic Union ◽  
Post Soviet Space

Abstract: A lot of profound political, economic, social, cultural and legislative modifications have happened on the post-Soviet space since the disintegration of the USSR. The term “post-Soviet space” should not be considered as the geographical boundaries of the fifteen former Soviet republics. The conception of the “post-Soviet space” has a more profound meaning as it reflects the common historical and cultural heritage as well as close economic relations, moreover, friendship between the citizens of the new independent States. The most developed sphere in the interstate relations nowadays is economics. The most prime example is Eurasian Economic Union (EEU), the youngest integration institution in the world which unites five countries willing to construe their relationship on a stronger basis than the proposed format of cooperation within the Commonwealth of the Independent States. In the modern world the economic and financial interests are determining, their ensuring makes the governments change foreign and domestic policies, start and terminate trade wars, desperately fight for the respect of their legal rights or, on the contrary, voluntarily give up on some parts of their sovereignty in the framework of integration development. The experience of the European Union demonstrates that the construction of the unified internal market within which freely move persons, goods, services and capitals is a necessary but not the only attribute of a successful integration project. At a certain moment the complex of economic and financial interests should be supplied with the interests of a concrete person. A strict observation of rights and freedoms is becoming a factor that predetermines a possibility of a conversion to the higher forms of integration. In this article is analyzed the problem of human rights defense in the main organizations functioning on the post-Soviet space - Eurasian Economic Union and Commonwealth of the Independent States.

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