Fifteen Eighty Four

“Bind me, to keep me upright at the mast, wound round with rope. If I beseech you and command you to set me free, you must increase my bonds and chain me even tighter.”[1]

With these words to his crew, Odysseus was approaching the Sirens in Homer’s epic. In some sense this episode aptly depicts regional integration and interrelations between states and institutions they are part of.

Regional integration has become a widespread phenomenon proliferating to various regions of the world and is driven by multiple political and economic reasons. This is also the case for the post-Soviet space: somewhat oddly, following the disintegration of the Soviet Union, multiple attempts have been undertaken to reintegrate the region in some form. The most recent development – the vicious Russian war of aggression against Ukraine, – some could argue, is an attempt at perverse reintegration.

Nevertheless, the latest example of peaceful regional integration in the post-Soviet space is the Eurasian Economic Union (EAEU) – an international organization established in 2015. It now consists of five states: Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia. As this organization builds upon past regional integration initiatives, Ukraine was part of some of those at certain times but dropped out rather quickly.

Among others, the EAEU was inspired by certain narratives about the integration process of and within the European Union (EU). This is clear not only from explicit references to it by policymakers, but also visible in conceptual underpinnings, some features of the institutional structure, and an abundance of references to EU’s case law by the judiciary, which sometimes even adopts relevant approaches in similar situations, to name a few.

From a historical perspective, the EAEU is a rather recent creation, and the newly published book ‘The Emerging Autonomous Legal Order of the Eurasian Economic Union’ goes deep into understanding how it functions (and where it does not). It engages with the legal garment of the integration and dissects it using the ‘autonomous legal order’ concept, which in turn was largely developed by the EU. Therefore, the EU is prominently featured in the book to juxtapose comparable situations and rules.

There is no definition of an autonomous legal order, as there are varying notions of ‘autonomy’ as such. Traced back to Aristotle, autonomy is now also part of the language used by international organizations. The EU judiciary in particular has constructed the narrative of the EU’s autonomous legal order different from that of national and international ones. The book uncovers several important features of an autonomous legal order, both concerning international and national law, such as the self-referential character of law, supranational effect of legal norms, essential character and allocation of powers, supranational judicial mechanisms and institutional supranational and attempts to identify those in the EAEU.

The book is a narrative that sequentially uncovers the historical background of Eurasian integration, the functioning, the powers, both explicit and implied, and the law of the EAEU in search of an autonomous legal order. This framing allows for exploring what is distinctive about the EAEU and along the way reveals the most problematic issues, both legal and quasi-legal ones. It sheds light on the elevator-like decision-making processes, the power struggle, the extravagant place of WTO law, and the futile attempt of member states to limit the organization’s implied powers. It also examines the judicial power of the EAEU, particularly analyzing some highly controversial decisions, the limits of independence of judges, as well as how and why the judiciary was stripped of some of the crucial remedies and their implications.

The book also develops two case studies: Russia and Belarus. On the one hand, these two countries, or rather their political regimes, have been synced on so many aspects, several of which are far beyond the scope of the book. On the other hand, they have not aligned in some other instances, for example when international and constitutional law is concerned. Arguably, Russian law was initially one of the most accommodating to international law, while Belarusian law was one of the most restrictive. Russian attitude to international law has gradually become one of the most restrictive, which is traced in the case study, with direct consequences for regional integration.

In the book, I argue that the EAEU has managed to build a certain emerging autonomous legal order as there are some manifestations thereof. This includes a set of exclusive competencies, where states lose the power to adopt binding decisions in certain fields; supranational effect of certain legal norms, including elements of direct applicability, direct effect, and primacy over national law; and preconditions for the exclusive jurisdiction of its judiciary.

Nevertheless, the EAEU has struggled to demonstrate some other features, and this is what makes it distinct from the EU legal order. Thus, institutional supranationality is severely limited, including concerns over the independence of officials and judges, and there is no viable mechanism ensuring uniform interpretation of the law in all member states. Some of these are results of the power struggle between the states and EAEU institutions, which in the end runs the risk of misapplication of the law.

This means that such emerging legal order autonomy is fragile with difficulties to effectively self-organize, self-maintain and self-reproduce. The question remains as to whether it transcends this fragility and emerges. It is hard to predict as there are so many factors, including the unfolding political and military events, that can change the course of the EAEU at any moment. However, the book provides conceptual tools to address some dimensions thereof.

The thalassic literary analogy invoked in the beginning has a happy ending. Whether the EAEU can follow suit is increasingly contingent upon what endogenous desires prevail and the extent to which exogenous factors allow.