Commonwealth of Independent States (CIS)
The CIS (Commonwealth of Independent States, in Russian: Sodruzhestvo Nezavisimykh Gosudarstv) is a regional organization based on international treaties of 12 of the 15 former Soviet Republics; the three Baltic republics did not join the organization. The CIS was founded to promote the development and cooperation between the member states with regard to common interests in political, legal, economical, scientific, cultural, and ecological areas and fields of military and foreign affairs (see Arts 2 and 4 of the CIS Charter). However, it is not provided with supranational powers over its member states. Its registered office is situated in Minsk, Belarus; the working language is Russian. The initial 12 participating states were Azerbaijan, Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tadzhikistan, Turkmenistan, Ukraine and Uzbekistan. In August 2008, after the conflict in South Ossetia, Georgia declared its withdrawal from the organization. Its membership ended in August 2009.
2. The formation of the CIS
The Soviet Union was founded as a multinational state in 1922. It inherited many regional conflicts which had developed during the Tsardom and spread in the following years. Notwithstanding the fact that the Soviet Union was established as a federation by means of an international treaty by the republics, it developed into a repressive and centralist state, oppressing any development of national identity by an imposed Russification and propagating its ideology in order to merge all different nationalities into one Soviet nation. However, since the end of the 1980s, the oppressed and hidden friction became more and more noticeable. Besides the eruption of several local national conflicts, the republics’ pursuit of independence and autonomy became apparent. Initially, the republics’ demands simply concentrated on the reform of the Union. But after the failed coup d’état in August 1991, the dissolution of the USSR was inevitable.
On 8 December 1991, the three Slavic republics of the Soviet Union—Russia, Ukraine, and Belarus—signed an international treaty on the Establishment of the Commonwealth of Independent States (Minsk Agreement), declaring in the preamble that the Union of the SSR as a subject of international law and of geopolitical reality was terminating its existence. Furthermore, the parties asserted the intention of establishing their new relationship on the basis of mutual recognition, respect of national sovereignty, the right of autonomy, and non-interference in domestic affairs. They also mentioned areas in which the parties were aiming for cooperation (Art 4 of the treaty) and joined activity (Art 7 of the treaty).
It has been held that the treaty violates international law by declaring the dissolution of the Soviet Union. However, it is most likely that the treaty did not intend to cause the dissolution of the Soviet Union as a legal consequence. This is supported by the wording (‘we … state, that the Union of the SSR ceases its existence’) and the systematic position laid out in the preamble. The answer to that question became, in any event, less significant as further Soviet republics subsequently acknowledged the foundation of the CIS. On 21 December 1991, the participating states of the CIS, except the Republic of Georgia, which officially joined the CIS on 23 December 1993, signed a declaration and a protocol concerning the Agreement on the Establishment of the Commonwealth of Independent States in Almaty (Kazakhstan). The declaration refers to the Minsk Agreement and stipulates that the contracting parties establish the Commonwealth of Independent States. The treaty assures mutual respect of state sovereignty and emphasizes the fact that the CIS constitutes neither a state nor a supranational organization. Furthermore, the member states declared that by founding the CIS the Soviet Union ceases to exist. Along with the ratification of the protocol by the state parliaments, they resigned from the Union, thereby also de jure terminating the existence of the USSR.
The dissolved Soviet Union left its successor states an ambiguous heritage. On the one hand, the new political independence in the post-Soviet states triggered the search for a new national identity, which led to a growing distance from the common historical background in the former Soviet Union and the consequential fear of a regained hegemony of the Russian Federation. On the other hand, the various economical, personal, and cultural ties between the states survived the dissolution of the Soviet Union, so that an entire break between the former republics was neither possible nor desirable. Furthermore, promoting the formation of a common market in the post-Soviet area was self-evident since the competitiveness of locally produced goods in the global market was more than questionable; in the internal market of the CIS, conversely, the goods could be sold profitably. This conflict of disintegration, reintegration, and a new integration has influenced and continues to influence the CIS to a great extent.
3. Structure of the CIS
a) Constitutive documents and Charter of the CIS
The constitutive documents of the CIS from 1991, made up of the Minsk Agreement and the signed documents (declaration and protocol) of Almaty, are very brief. The most comprehensive document, that being the Minsk Agreement, comprises merely 14 articles. Provisions regarding the structure of the CIS and the coming into force of the regulations are not provided. Although the areas of joint activities (Art 7 of the Minsk Agreement), such as coordination of foreign affairs, cooperation regarding the development of a common market, development of transport and communication systems, protection of the environment, matters concerning migration politics, and the fight against organized crime, are defined, they have to be implemented by coordinating institutions which still need to be created and which are not precisely specified by the treaty. In addition, it is stipulated that ‘in order to secure international stability and safety, the integrative command over military and strategic armed forces and the integrative control over nuclear weapons’ shall be maintained. No further stipulations are made with regard to this issue. Therefore, the question has been raised whether the constitutive documents of the CIS can actually be qualified as international treaties or whether they lack the intention of being legally binding, thus merely constituting political declarations of intent. Nevertheless, it has to be noted that the Economic Court of the CIS held in a decision on 31 March 1994 (No 02/94) that those documents have, with regard to their founding character, priority over the subsequently adopted Charter.
Shortly after its creation, the CIS was regarded by western observers partially as an institution which simply enabled a ‘civilized divorce’ of the former Soviet republics. In fact, during the beginning of the CIS, the focus of cooperation lay in the division of the property and debts of the former USSR. Although around 200 CIS-documents were enacted in the first year after its formation, the quality of cooperation suffered from the scarce will for integration demonstrated by some member states. However, these disintegrative influences have diminished, so that the Charter of the CIS was passed on 22 January 1993.
Yet the Charter as well fails to specify precise member state responsibilities. It merely expresses the intention to cooperate in certain areas which have already been vaguely addressed by the constitutive documents.
The CIS is specifically not provided with supranational powers by its member states according to Art 1 of the Charter. Article 1 also states that the organization does not constitute a state. The international cooperation within the CIS is based on multilateral or bilateral international treaties pursuant to Art 5 of the Charter. Decisions made by the paramount institutions of the CIS (Council of Heads of States and Council of Heads of Governments, see below) have to be unanimous. However, every state has the option to declare that they have no interest in the matter. Such a statement has no effect on the validity of the decision with regard to its binding effect on the other participating states (Art 23 of the Charter). These provisions emphasize the notion of the CIS as a convoluted mosaic of relationships between individual member states, which can vary in their degree of intensity. In recent years, a complicated network of various international treaties with alternating participants has evolved on the basis of the CIS. In particular since the middle of the 1990s, the tendency of realizing a higher degree of economic integration by means of small groups of member states (eg Eurasian Economic Community) or bilateral treaties (eg Union between Russia and Belarus) became apparent. These regional groups are not designed as an alternative, but rather as a complement to the CIS. Therefore, this aspect of the CIS is described as ‘integration at various rates’.
b) Membership in the CIS
The Charter of the CIS distinguishes between founding states, member states, associated members, and observers (Arts 7 and 8 of the CIS Charter). Founding states, which are states that signed and ratified the constitutive documents by the time of the adoption of the Charter, possess the option of becoming a member state by simply ‘accepting the responsibilities arising out of the Charter within one year after its adoption’, in other words by ratifying the documents. Apart from that, states are able to join the CIS, provided that they ‘share the objectives of the commonwealth and accept the responsibilities arising out of the Charter’ and provided that all other member states give their consent (Art 7 of the Charter). A state is allowed to withdraw from the Commonwealth after the expiration of a 12-month period of notice, if it fulfilled its accepted responsibilities (Art 9 of the Charter).
According to the already mentioned decision of the Economic Court of the CIS from 1994, only nine states could be regarded as members of the CIS. This includes the Republic of Armenia, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, the Republic of Uzbekistan, the Republic of Belarus, the Republic of Azerbaijan, and the Republic of Georgia. The Republics of Moldova, Ukraine, and Turkmenistan have not fulfilled all requirements in order to become full member states. Nonetheless, these countries have participated in both the treaties which have been available only for member states of the CIS and in the activities of the CIS institutions without their participation being objected to by the member states. In order to refer to all of these states, the notion of ‘CIS-participating states’ or ‘CIS-states’ is used.
c) The principal institutions of the CIS
The Council of Heads of States is the paramount institution of the CIS, according to Art 21 of the Charter. This highest representation of the member states convenes twice a year for its general meetings. Special meetings can be called upon the request of a member state. This institution discusses and decides basic questions of cooperation between the CIS-states in the areas of common interest.
Additionally, Art 22 of the Charter provides for the Council of Heads of Governments. Its function is to coordinate the cooperation of the executive institutions of the CIS-states in the areas of common interest. The general meetings, in which the governments of the CIS-states are represented at the highest level, are to be held four times a year.
The Executive Secretary, which is not assigned by the Charter, is the permanent administrative body of the CIS. It was established on 14 May 1993 and is solely based on the respective decisions of the Council of Heads of States. Its primary task is to support the activities of the Council of Heads of States and the Council of Heads of Governments. The Executive Secretary effectively took over the duties of the Coordination and Consultative Committee, which is provided by Art 28 Section 1 of the Charter and discontinued its activities at the end of 1993.
Furthermore, the CIS encompasses the Economic Court, which ensures the fulfilment of economic responsibilities within the Commonwealth pursuant to Art 32 of the Charter. It is authorized to construe treaties and other legal acts of the Commonwealth concerning economic matters. In addition, it is competent to resolve disputes arising out of the fulfilment of economic responsibilities resulting from the conclusion of contracts or other legal acts within the CIS. However, it is only entitled to ascertain a breach of responsibilities and to recommend certain measures which the state can take to remedy the breach. There is no procedure for enforcement of the decision; the condemned state only assumes responsibility for the accomplishment of the proposed measures (Point 4 of the Agreement on the Economic Court of the CIS).
The Interparliamentary Assembly was initially not designed as an institution within the CIS, but rather as a means of ensuring interparliamentary cooperation (Arts 36, 37 of the Charter). It was only in 1995 that the assembly was established as an international institution of the CIS subsequent to an agreement by eight CIS-states. It primarily has an advisory task, promoting the harmonization of the legislation of the CIS-states. According to Art 4 point (g) of the ‘Convention on the Interparliamentary Assembly by the participating CIS-states’ from 26 May 1995, the assembly is entitled to pass model laws and model codes, which are forwarded to the national parliaments.
Additionally, the CIS possesses bodies of interministerial cooperation, governed by Arts 27, 30, and 31 of the Charter and by decisions of the Council of Heads of States and the Council of Heads of Governments. They consist of ministers in charge of the respective areas and are supposed to support the Council of Heads of States and the Council of Heads of Governments. The most prominent bodies are the Council of Ministers of Foreign Affairs (Art 27 of the Charter), the Council of Ministers of Defence (Art 30 of the Charter), and the Council of Commanders of Border Troops (Art 31 of the Charter).
Most of the legal Acts passed by the institutions of the CIS, however, show no significant impact. There are no procedures to provide for their enforcement. Many of those Acts merely have the character of a recommendation. Especially due to the great number of CIS legal Acts which have been passed as well as their not having been subject to any systematic scholarly analysis, CIS-legislation is not transparent enough to be appreciated by practising lawyers in the member states.
4. Impact of the CIS for the development of private law in the post-Soviet region
a) Model legislation
During the existence of the Soviet Union, the republics had independent civil codes, which differed, however, only in areas of minor importance. It has to be kept in mind that the civil codes of the republics stood underneath the ‘basic principles of the civil legislation of the USSR’, which were passed by the Union and constituted the paramount source of civil law. The civil codes were developed in accordance with those basic principles, which also provided for the allocation of rights and duties between the republics and the Union. Thus, a common framework for the civil law evolved.
One of the CIS’s original objectives was the conservation of this existing common legal framework. This was particularly affirmed by the creation of the Interparliamentary Assembly. With regard to the political will in the Russian Federation, this intention is still existent today. The signed presidential decree (Ukaz) by President Dmitry Medvedev from July 2008, which provides for the creation of a draft on the revision and further development of the Russian Civil Code, expressly states the intention of maintaining the common frame of the private law regulations in the CIS-states.
The model legislation, which is to be passed by the Interparliamentary Assembly, seems to hold a significant potential of supporting this intention. The development of common solutions appears to be a reasonable approach, particularly supporting the poorer states, since all legal systems of the CIS-states have common roots in Soviet private law and are faced with similar problems resulting from the transformation process.
In recent years, more than 200 model laws and model codes have been passed, among them the model laws in the area of private law covering insolvency and corporations. Since 2003, there is also a draft paper concerning a model code of civil procedure. Additionally, the draft of a model law on public companies is being created. It can be observed that the model laws have influenced the discussion in the individual states. However, regarding the impact of the model laws on national legislation, there is little information.
Nevertheless, the model civil code passed by the Interparliamentary Assembly has become rather important for the development of the civil law of the CIS-states. It has had a strong influence on the civil codes of Armenia, Azerbaijan, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Uzbekistan and can be considered as a common framework of civil legislation for those states. In this context, the civil code is designed as a ‘constitution of the market’. Other private law provisions have to comply with the code (Art 2 Part 1 of the model civil code of the CIS, see Civil Codes of Uzbekistan (Art 3), Tajikistan (Art 2 Part 1), Ukraine (Art 4 Part 2), Kazakhstan (Art 3 Part 2), Kyrgyzstan (Art 2 Part 4), Armenia (Art 1 Part 1 Sentence 2), and Azerbaijan (Art 2.1)) (see in detail Russian Civil Code). The model civil code comprises three books, which are consecutively numbered and were passed separately from 1994 to 1996. The first book contains the general part, covering subsections which detail general provisions, persons, property law, and the general part of the law of obligations. The second book governs the special part of the law of obligations; the third book covers provisions regarding intellectual property, the law of succession (succession law), and private international law (PIL). The model civil code reiterates the structure of the ‘basic principles of the civil legislation of the USSR’ and of the Civil Code of the Russian Federation from 1964 (Russian Civil Code). Also with regard to the content, it maintains to a great extent continuity with Soviet private law. For instance, the model civil code comprises instruments of Soviet law such as ‘the right of economic management’ and ‘the right of operational administration’ (Chapter 19, Art 297 ff of the model civil code of the CIS).
b) The so-called mutual judicial assistance treaties: common international private law and reciprocal recognition and enforcement of judicial decisions
The structure of the CIS facilitates the conclusion of multilateral treaties among the member states. The most significant treaties in the area of the private law are the Minsk Convention of 22 January 1993 ‘On mutual judicial assistance and legal relations in civil, family, and criminal law matters’ and the Kiev Agreement of 20 March 1992 ‘On the procedure regarding the resolution of disputes connected with the exercise of economic activities’. Both treaties have been updated by follow-up agreements. On 7 October 2002, a convention on mutual judicial assistance and legal relations in civil, family, and criminal law matters (in Russian usage, called the ‘Kishinev Convention’) was signed in Chişinău (Moldova) by all the CIS-states except Turkmenistan and Uzbekistan. To date it has only been ratified by six CIS-states, namely Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Tajikistan. The follow-up agreement of the Kiev Agreement, the Moscow Agreement of 6 March 1998, came into force on 9 January 2001 for Azerbaijan, Kazakhstan, and Tajikistan.
The treaties on mutual judicial assistance continue the corresponding tradition of the USSR and govern not only mutual judicial assistance in a narrower sense, but also matters of international jurisdiction, the applicable law, and the reciprocal recognition and enforcement of judicial and, in parts, administrative decisions.
Consequentially, a uniform private international law for the participating states has been created and is playing an important role in judicial practice. The basic principles put forth in the treaties on mutual judicial assistance have been incorporated to a great extent into the model civil code and have been considerably developed. It is only with regard to contracts that the model civil code establishes a different provision for the conflict of laws. While the Kiev Agreement and the Minsk Convention apply the lex loci actus (Art 41 of the Minsk Convention, Art 11 lit f of the Kiev Agreement), the model civil code applies the law of the country in which the contracting party that is providing the characteristic performance is situated (Art 1225 of the model civil code). Furthermore, and unlike the Minsk Convention, the model civil code contains no provisions for matrimonial and family law. Like the civil codes of the Soviet era, the model civil code excludes family law from its scope of application. Those areas are supposed to be governed by a separate family code which is to include appropriate conflict of laws provisions.
The treaties on mutual judicial assistance also play an important role for the reciprocal recognition and enforcement of judicial decisions. The Minsk Convention provides for a reciprocal recognition and enforcement of decisions of judicial authorities in the area of civil and family law, including court settlements thereof and notarial acts concerning pecuniary debts as well as court decisions on damages in criminal law matters (Arts 51 ff). The Kiev Agreement governs the reciprocal recognition and enforcement of final decisions by the competent courts, but only in commercial matters. Article 1 of the treaty defines those matters as disputes, arising out of contracts or other legal relations between economic entities among each other or out of legal relations to national or other institutions. Both treaties comprise a list of reasons why recognition and enforcement of the decision can be denied. However, this does not constitute a révision au fond. Reasons for the denial of recognition are lack of international competence of the first court, opposing res judicata, violation of the right to be heard and expiration of the time limits for the enforcement of a judgment. The treaties do not explicitly include a public policy exception. However, Russian courts examine possible violations.
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