1. Introduction
1.1. Introduction of the Problem
The beginning of the twenty-first century heralded global economic competition, redistribution of markets, trade wars, protectionism and unilateral coercive economic measures. There is an opinion that, in the future, such a situation, along with the depletion of resources on our planet, an increase in the world’s population and economic contradictions between states, will only intensify and have consequences for the entire world community. Professor Evstafiev (Reference Evstafiev2018) postulates that it is possible, with a certain degree of responsibility, to talk about a global trade war.
In these conditions, states are trying to find various ways to protect their political and economic interests. One of these methods is the creation of various types of associations, which may be of a military or military-political nature, but in most cases we are talking about associations pursuing economic goals. In current realities, these associations are large international centres of trade and economic activity, among which are the European Union (EU), the South American Common Market (MERCOSUR), the North American Free Trade Area (NAFTA), the Association of Southeast Asian Nations (ASEAN), Latin American Integration Association (LAI), Caribbean Community and Caribbean Common Market (CARICOM), Eurasian Economic Union (EAEU).
However, a common understanding of the essence of integration does not mean unanimity of opinions regarding the methods of implementation, forms of implementation and those final results that function with the help of integration associations. In legal and sociopolitical literature, the terms ‘regional trade grouping’, ‘regional economic association’, ‘regional economic bloc’, ‘regional economic organizations’ are often used.
Nevertheless, at present, an independent scientific direction is emerging in the field of jurisprudence, which aims to study the ways and means of integration; its directions; the forms in which the integration efforts of states can be expressed; and the specifics of integration in various integration associations. The main subject of research within the framework of the mentioned scientific direction is the legal nature, the procedure for formation and the status of an entity that is being formed within the framework of integration associations and which has received the name ‘integration law’ or ‘the law of integration associations’. It should be noted that the science of integration law is at the initial stages of its formation, because key issues concerning the essence, purpose and forms of integration and integration law in general remain unresolved. In addition, the scientific positions regarding the definition of the essence of integration law, and its purpose, place in the legal systems of the participating states, and the status of its bodies and acts adopted by researchers within integration entities are very diametrically opposed. There is an unresolved issue of a unified and coherent theory regarding the understanding of the essence of integration law.
Owing to the existing diversity of positions of scientists in modern legal literature, there is a need to comprehend the difficult process of existing integration processes and formulate the main parameters of the legal category ‘integration law’ (‘law of integration entities’). Professor Kashkin (2017) gives data: ‘Integration Law’ is a piece of common knowledge about social relationships related to creating, development, principles, law instruments, and development patterns in different integration law systems (enterprises) in their common law regulation. This makes different systems come closer together, in the features that they have, although they are still different from each other.
2. Research Methodology
This article attempts to substantiate that, along with international and national law, a third type of legal system has appeared – integration law (the law of integration associations). Legal complexes formed in various integration associations do not constitute a single legal system. The point is that each integration association creates its own legal system. There can be significant differences between the two. The term ‘integration law’ (or ‘the law of integration entities’) is used to denote phenomena of the same type.
Thus, on the basis of a comprehensive analysis of international legal and national regulations, taking into account the existing doctrinal positions, an attempt is made to substantiate the scientific concept of the formation of integration law (the law of integration entities).
The presented research goals are:
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(1) to identify the characteristic features of the legal system of an integration association, to provide a definition of the legal category ‘integration law’;
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(2) to define the essence of integration law;
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(3) to reveal the principles of correlation of integration law with international and national law.
3. Results
3.1. Definition of the Legal Category ‘Integration Law’
The process of globalization has brought essential characteristics to the international economic order, increasing the need of states for rapprochement and interaction. The more actively states are integrated into effectively working unions and associations, the more successfully they solve their economic problems and defend their national interests in the international arena. It seems that, in this way, the states not only diversify the ways of their economic security (Mikhaylov et al. Reference Mikhaylov, Mikhaylova and Savchina2018), but also try to achieve the maximum economic and political effect. It is quite obvious that the joint upholding of economic interests makes it possible to obtain a cumulative effect.
This is especially important for developing states, as well as for those states whose share in the international economic potential is insignificant. If these states act on the international market alone, there are no guarantees that other states, especially large economic players, will reckon with their interests. However, when these states find themselves in a significant economic association, they have a real opportunity to protect their economic interests within the framework of joint actions.
This tendency was originally called regionalism. Moreover, in the second half of the twentieth century in international treaty practice, the special status of such entities was legalized through a special term – Regional Economic Integration Organization. One of the first treaties to include relevant provisions was the Vienna Convention for the Protection of the Ozone Layer (1985). The first article of this Convention, when defining terms, states that there may be regional organizations for economic integration (United Nations, 1985).
Subsequently, special provisions on regional economic integration organizations were included in the universal international treaties concluded under the auspices of the UN. Thus, the second article of the UN Convention on Biological Diversity (1992) provides an official definition of a regional organization for economic integration (United Nations, 1992).
Similar provisions on a regional economic integration organization, as a party to an international treaty, are included in the UN Convention (11 December 2008) on contracts in whole or in part by sea international carriage of goods (hereinafter – the Convention (2008)). Article 93 on the participation in the Convention (2008) provides that a regional economic integration organization may accede to the Convention (2008) if its competence includes issues regulated by the Convention (2008). Article 93 stipulates that an organization acceding to the Convention (2008) bears the rights and obligations of a contracting state (United Nations, 2008).
Attention should be drawn to this provision of the Convention (2008), where it seems that equating a regional economic integration organization with a state is not always possible in practice. In this case, the question arises, who will be responsible in case of violation of the provisions of the Convention (2008) – a state party or a regional economic integration organization to which this state belongs? The answer to this question is not obvious.
It must be assumed that the participation of integration associations in international treaties can lead to a number of collisions, which even today are difficult to predict, but which will inevitably arise in practice. For example, the question arises: can regional economic integration organizations participate in any international treaty, or only in an agreement that specifically provides for the possibility of such participation? Or another question: will the denunciation of the treaty by a regional economic integration organization mean that it will expire for the states that are its members? However, the opposite situation is also possible, in which participation in the treaty is terminated by the member states of a regional economic integration organization, while it itself remains a party to the treaty.
In addition to the identified problems, one more collision, noted by African researchers, seems to be very interesting. Will not the membership of the same states in several integration unions create possible contradictions between the accepted sources of law within the framework of integration associations (Sawadogo, Reference Sawadogo2012)?
All of the above indicates that the participation of integration associations in the activities of international organizations as their members, as well as joining international treaties as their full-fledged participants, will require a special regulation.
3.2. X – The Formation of Systems of Law
Integration law is not a single legal system, but rather shows that each integration association forms its own (separate) legal system with its own specific features and stages of formation and development.
In addition, integration law (the law of integration associations) is at the initial stages of its development; in its general assessment, it is often taken into account that only the formation of integration associations and integration law begins within the framework of international law. As a rule, the first step towards the creation of an integration association is the development of a fundamental international treaty (or a set of treaties), which would constitute this association as a new subject of international law.
However, subsequently, on the basis of these constituent documents, an independent system of law and legal system begins to form. Economic integration and the creation of a single economic space are unthinkable without the formation of a detailed legal framework that ensures their functioning.
According to Professor Shinkaretskaya (Reference Shinkaretskaya2004: 200), it is the purposeful change in the rule of law that distinguishes integration from the usual cooperation of states, and, accordingly, integration is ‘a process of purposeful introduction of changes in the rule of law of states … with the aim of their unification in certain areas’.
One should agree with this approach, since economic integration is inconceivable without the corresponding legal integration. The common economic space will not be able to function if differences in national legislation become an obstacle to the free movement of trade and production factors and there is no common legal basis for the movement of goods, services, capital and labour.
Another thing is that such a unified legal framework cannot appear at once, the formation of legal systems within the framework of integration associations is always a rather lengthy process, which sometimes stretches over many years. Most often, the formation of the legal system of an integration association occurs in stages: as integration deepens, states expand, supplement and clarify the set of legal prescriptions necessary for the functioning of a single economic system.
We can trace a similar pattern of the gradual formation of systems of law in all integration associations. The only difference is the pace with which a unified legal framework is being formed, the detail of its elaboration and the breadth of the agreed legal regulation. As a rule, the creation of a unified legal framework drags on for many years, because states have to agree on concessions that they must make in the trade and economic sphere, which is sensitive for them. At the same time, since a certain experience of integration construction has already been accumulated, in recent years the period of formation of the integration legal complexes has been significantly reduced. A striking example in this case is the EAEU legal system, the formation of which took place in a relatively short period of time.
It should be noted that the systems of law of integration associations are becoming more complex and expanding as the member states move towards closer forms of integration. The higher the level of integration, the wider the range of branches of law requires the introduction of general or uniform regulation. The general laws of the formation of a single legal space within the framework of integration associations are carried out by the convergence (unification and harmonization) of the legal systems of sovereign states.
At the same time, as practice shows, the processes of unification and harmonization proceed with varying degrees of intensity during the formation of certain integration associations, and this is due to the fact that any domestic system is characterized by its own, centuries-old features, principles and traditions that, when interacting with other domestic systems, cannot be changed or adapted in a short time.
Despite the existence of general patterns of formation of systems of law of integration associations, it is quite obvious that each of them has its own specific features of creation, composition and functioning. Therefore, we can say that there is no general standard scheme for the system of law of an integration association. The differences between them are predetermined by a number of factors:
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geographical (presence or absence of common borders, access to the sea and the most important transport routes, proximity to the centres of regional economic activity);
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historical (previously belonging to one state, attempts to cooperate efforts in different areas in the past, common historical roots, etc.);
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cultural and ethnographic (common language, type of culture, mentality);
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belonging to one or two different legal families (Romano-Germanic, Anglo-Saxon, Muslim).
All of the above, as well as a number of other factors, determine our position that integration law as a legal system is developing and successfully functioning within the framework of integration associations. In this case, it is, of course, possible to use the experience of some integration associations in the construction of systems of law in others. However, this cannot be a mechanical copying, since what works effectively in one integration association may not be viable in another.
3.3. Interaction and Interaction with International and National Law
The integration communities, which are complexly structured, multilevel communities, have some elements in addition to their own law regulations:
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(a) General accepted principles and international law norms;
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(b) International customs;
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(c) Norms of the common international law, which take in integration community functioning. It can include international agreements (and bilateral too) with the states-members participation.
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(d) General principles and goals of the integration communities functioning;
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(e) International legal doctrine and legal consciousness in that part which corresponds with the law system and in the legal system.
So, with the correlation of the integration law norms and international law, we get that international law serves the first principles in integration legal systems creation. But integration law is corrected by the state members all the time, as the result of the integration expansion and as new members come in. However, each of them inevitably separates and turns in the relatively independent legal formation.
The national state law of the integrated state-members does not get introduced into the integration legal system, but influences law enforcement and can be used in the regulation of law relationships in the case where it was clearly installed in the integration community’s legal system.
As an example, consider the Eurasian Economic Union (EAEU). Its members consistently build their own approach with the priority of international law but with the supremacy of their Constitutions.
Article 8 of the Republic of Belarus Constitution (1994) recognizes the priority of universally recognized principles of international law and provides for their compliance with national legislation. Article 15 (par. 4) of the Constitution of the Russian Federation (1993), which was changed and approved as the result of the all-Russian vote on 1 July 2020, establishes that the generally recognized principles, norms of international law and international treaties of the Russian Federation are an integral part of its legal system.
Article 6 of the Republic of Armenia’s Constitution (1995) ratifies international agreements that are the part of the legal system of the Republic. If the international agreements consist of norms different from the national law, the norms of the agreement will be applied.
Article 4 of the Republic of Kazakhstan Constitution (1995) states that the international treaties, which were ratified by Kazakhstan, have priority over Kazakhstan’s laws. On Kazakh territory, international treaties have a priority over Kazakh’s legal norms if Kazakhstan is a member of the current interstate union, and current international treaties have been validated by Kazakhstan. It should be noted that the relevant norms of international law are not included in law or legislation but in the legal system and have a certain subordination.
According to the regulatory resolution of the Constitutional Council of the Republic of Kazakhstan (18/2, 11 October 2000): ‘The international treaties have preferred legal power if they are concluded in accordance with the Constitution of the Republic, in the manner prescribed by law and ratified by the Parliament of the Republic by the relevant law passing.’ However, it is provided there:
International treaties that did not provide for ratification as a condition for entry into force concluded before the adoption of the Constitution of 1995, are valid and retain priority over the Republic’s legislation in the case such priority is expressly provided for these international treaties by the Republic’s laws, which regulate the relevant areas of legal relations.
So, we can see there are no any designations for the acts of the interstate (intergovernmental) formations or integration cooperation in the Kazakhstan’s legal system. However, the task regarding the legal force of the decisions of the Commission of the Customs Union of the EAEU has been raised in the Constitutional Council of the Republic of Kazakhstan (5 November 2009). And the basis was Prime Minister K. Massimov’s address about the official definition
of the article 4 of the Republic of Kazakhstan Constitution’s rules in the part of the extension of the priority established by this norm of international treaties ratified by the Republic over its laws and about the immediacy of their application to the decisions of international organizations and their agencies that are formed in accordance to such treaties.
The Constitutional Council of the Republic of Kazakhstan has made a regulation about the provision of Article 4 of the Constitution of the Republic of Kazakhstan on the priority of international treaties ratified by the Republic of Kazakhstan over its laws and the immediacy of the application of such decisions. This norm is applicable to solutions of the international formations, including the Commission of the Customs Union established in accordance with the Treaty on the Commission of the Customs Union (6 October 2007), which was ratified by the Law of the Republic of Kazakhstan ‘About the Ratification of the Treaty on the Commission of the Customs Union’ (45-IV from 24 June 2008). According to pars 1 and 2 of the Basic Law, the decisions of the international organizations and their agencies, which were formed in accordance with Kazakhstan’s international treaties, cannot contradict the Constitution of the Republic. The decisions of the international organizations and their agencies, in which Kazakhstan is a member, can have the legal properties of an international treaty ratified by the Republic in the case of direct indication of the binding nature of these decisions for Kazakhstan in an international treaty that has been ratified by the Republic of Kazakhstan. This resolution of the Constitutional Council of the Republic of Kazakhstan has given superiority to the international agencies’ decisions in the hierarchy of legal acts of the Republic of Kazakhstan. This gives to the international acts legal force, which makes them superior to Kazakhstan’s laws.
So, the comparative analysis of the legal acts of the members of the EAEU allows us to declare that the norms of the integration law are still not recognized as the source of the national law. Moreover, there are no direct or indirect instructions to include them in the legal norms of the states-members, but international law has priority compared with national laws. However, the articles of the national law of the EAEU states-members fall apart with the development of judicial practice of another integration community – the European Union (EU), which has firmly entrenched at its core, principles of autonomy and priority of law. This becomes the main possibility to make the assessment of the action or some international law norms in the EU nomocracy.
We mean that only those elements of the systems of law of integration associations that are of international legal origin (international treaties, customs, generally recognized principles of international law, etc.) belong to international law. But what is created within the integration association itself (its acts in the form of decrees, decisions, directives, regulations, uniform acts, foundations of legislation, etc.) has nothing to do with international law, but constitutes a separate law of the integration entity itself.
Thus, we can state that the legal systems of integration associations consist of two blocks of norms:
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norms created in the framework of international law;
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norms formed within the framework of the integration association.
Nevertheless, within the integration association, both of these blocks act as a single complex – the system of law of the integration association.
The legal system of integration associations is a complexly structured, multi-level formation that includes, in addition to the law itself, at least the following constituent elements:
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(a) generally accepted principles and norms of international law;
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(b) international customs;
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(c) norms of general international law affecting the functioning of the integration association (including international treaties (including bilateral) with the participation of the member states of the association);
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(d) the main principles and objectives of the functioning of the integration association;
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(e) enforcement, including decisions of courts of integration associations;
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(f) international legal doctrine and legal consciousness in the part corresponding to the legal system and legal systems of integration associations.
Nevertheless, any integration formation is a specific instrument established by states to achieve certain political and economic goals. The more complex the goals that states set for a specific integration entity, the broader the requirements for the system of its governing bodies.
At the moment, there has not been a single system of bodies, which could possibly be called ‘typical’, that is characteristic of integration associations. Therefore, we can state that in various integration associations, a kind of institutional structure sui generis is being formed. At the same time, it is quite obvious that there are some general patterns in the formation of the structure of governing bodies within the framework of integration formation.
As a rule, the system of bodies of integrational education is headed by a supreme body formed of state leaders and/or heads of government that are part of the union of states. The functions of determining the strategic directions of integration and establishing ways to achieve it are assigned for such a body (or bodies). The activities of such a central governing body are supported by several subordinate subsidiary bodies of a lower level, usually formed from the heads of various national departments and ministries, and designed to implement the policy of integration in the relevant field.
Since the activities of the above bodies are carried out on the basis of periodic sessions (summits), there is a need for a permanent executive body responsible for the implementation of the integration policy. In integration formations, in most cases, such a permanent body is a special commission that performs functions similar to those that are usually entrusted to the government in states.
In the institutional structure of integration associations and in the functioning of their legal systems, a special role belongs to the special judicial institutions created in these associations. To designate the scope of their activities, a special term ‘integration justice’ has appeared. The use of this term is intended to emphasize the specifics of both the judicial bodies of the integration association and their location in the system of integration law, and to delimit them from other international judicial institutions. The breadth of powers conferred on these courts indicates that they are judicial institutions of a special kind. Without them, integration law could hardly exist as a separate legal system. If we recognize the integration associations as a new specific formation, then the judicial institutions formed in them should be considered as judicial bodies of a special kind.
Moreover, the creation of a single economic space and, accordingly, a single legal system that ensures it, is unthinkable without a judicial body that ensures the unity and consistency of the law of integration association. This is the main purpose of the integration courts. International courts do not have such a function. The judicial bodies of the integration associations are still at the stage of formation. Therefore, conclusions about the nature of these courts, their jurisdiction, and the specifics of their functioning can only be preliminary. Taking into account that the process of the formation of integration justice is still ongoing, it is probably too early to talk about the fact that all of its characteristic features have been fully identified by science. Although they are of the same type, they can differ significantly from each other.
4. Discussion
Each integration association will pursue certain clear goals, for this a separate, own legal system is created and a new type of legal systems appears – integration law (the law of integration associations). In our opinion, these integration associations act not as a special kind of international organization, but as a new independent subject of international law, with fundamental differences in competence, in sources, in subjects. Moreover, within the framework of integration associations, independent systems of law, integration law, are formed.
Integration law (the law of integration associations) should be understood as legal systems (legal complexes) that are formed within the framework of international integration associations that have set the goal of cooperation in any area: primarily economic, up to the creation of a single economic space. We believe that the thesis about the existence of two types of legal systems – national and international law – is losing its significance. A new type of legal systems is emerging – integration law. However, the emerging legal systems of integration associations, like any new phenomenon, cause denial and rejection among some professionals; they are trying to fit it into their usual legal framework. There is a serious debate as to whether the legal systems of integration associations are a special offshoot in international law or should be considered as sui generis entities. Experts have become divided into several irreconcilable camps, each of which defends its own vision of this problem.
Some authors state that integration law is presented as an integral part of international law, and the integration associations included in it act as one of a variety of international organizations.
The second group of researchers inclines towards the scientific position that the complexes of integration associations are isolated and constitute a third legal system, while others regard them as a separate part of international law and nothing more; the rest, finally, see them as a kind of bridge between national and international law. At the same time, the positions of some specialists on this issue are contradictory and inconsistent.
So Professor Abdullin in his monograph ‘Regional aspects of integration: The European Union and the Eurasian space’ expresses the point of view that integration law is conditionally collective. It is recognized to identify a specific subsystem (level) of international law – the law of the EU, the law of the South American Common Market (MERCOSUR), the law of the Eurasian Economic Union (EAEU), which regulates the interaction of sovereign states in a certain area (Malfliet et al. Reference Malfliet, Abdullin and Shaykhutdinova2019: 55).
The point of view of Professor Shumilov (Reference Shumilov2003: 30), who believes that within the framework of integration associations, only elements of the ‘right of integration’ appear, possessing a certain autonomy in relation to both national and international law, is rather humble.
Professor Mescheryakova (Reference Mescheryakova2015: 28) indicates that integration law, being a kind of legal mechanism for regulating global public relations, is a new branch of international law. At the same time, Professor Tolochko (Reference Tolochko2012: 86) believes that integration law, being an integral part of international law, carries signs and features associated with international legal principles, peremptory norms, hierarchical structure and rules of relations with national legal systems. By its nature, integration law is a set of norms of various origins and content that regulate relations within a specific international interstate organization, and the term ‘integration law’ is conditionally collective, recognized to identify a specific subsystem (‘micro level’) of international law that regulates the interaction of sovereign states in a certain sphere.
Moreover, Tolochko enters into polemics with Bakhin about the existence of a ‘third’ legal system competing with international and national law. She gives data that the nature of integration law in relation to international law does not follow either from the effect of integration law in relation to individuals and legal entities or from the fact that the law of integration associations has its own specific sources. The nature of integration law does not follow either from the effect of integration law in relation to individuals and legal entities, or from the fact that the law of integration associations has its own specific sources. Many norms of international law, according to Tolochko (Reference Tolochko2012: 86), are directly applicable to individuals and legal entities. Acts issued by an integration association are acts of an international organization.
The idea of creating a separate branch of international economic integration law within the framework of international law, a complex sub-branch of international economic law, is presented in the work of the Kazakh researcher Naribayeva. Naribayeva (Reference Naribayeva2000) claims that this is ‘a set of contractual norms that regulate and ensure international economic integration’ and the subject of international integration law is the economic relations that develop between the member states of the union. These relations are aimed at creating and improving the mechanism of international economic integration, and the method of international economic integration law is coordination and subordination methods, that is, elements of supranational regulation.
In a joint monograph prepared by Kazakh and Belarusian researchers, integration law is considered as a complex branch of law and legislation. But, at the same time, an independent subject and methods of legal regulation inherent in the industry stand out. In addition, integration law is presented by them as a sub-branch of international public and international private law (Kazakh National University Named After Al-Farabi n.d.).
In the modern international legal doctrine, the Russian professor Anufrieva (Reference Anufrieva2015) categorically denies the thesis of the existence of a legal category of ‘integration law’. She argues that it is more expedient and more accurate to speak ‘about the law of international economic integration’ (the institution of legal regulation of international economic integration) or about the ‘law of integration associations/formations’ as an integral part of international law, but most likely as a component of international economic law.
Bekyakshev and Bekyashev (Reference Bekyashev and Bekyashev2020) are adamant and insist on the assertion there are two legal systems – international legal and national. Scientist declares that integration law arises in the structure of the international legal system on the basis of its generally recognized principles and norms and functions according to its rules. This approach applies, in his opinion, to all positions about the functioning of integration law as an independent legal system. So, integration law is a part (institution) of international law and cannot be separated from international law by acquiring an independent status. In his opinion, integration law should have its own object, subject, method of legal regulation, subjects, principles, and sources.
Professor Ispolinov (Reference Ispolinov2021a, Reference Ispolinov2021b) is categorical in his conviction about the terminological and methodological vagueness and helplessness of the concept of integration law. It isn’t able to propose any explanation for challenges that are in front of the International Community, in general, and of the EU, EAEU and Russia, in particular. This fact makes it difficult to assess adequate current changes in International Law and contributes to the appearance of illusions that create distortion for both the international and the scientific community.
At the same time, Judge of the Court of the Eurasian Economic Union, Neshataeva (Reference Neshataeva1995: 48) postulates that integration law is a legal system of a special kind, which is a cross between domestic legal systems and the international legal system. In addition, the specificity of this legal system is highlighted: when creating an organization of a new type, states transfer their sovereign functions, the authority to establish rules of conduct that are binding on individuals and legal entities of the organization’s member states (Neshataeva, Reference Neshataeva2014: 244).
In contrast to the presented position, there are researchers who believe that integration law is an independent legal system. So, in the Russian textbook on European law (Topornin Reference Topornin1999: 297), the law of the European Communities, considered in the context of correlation with international law, was singled out as a separate autonomous legal order. In works prepared under the editorship of Professor Entin, the EU law stands out as an autonomous and independent legal system, which is not identified either with the national law of the EU member states, or with the current public international law (Entin 2007: 245)
Other specialists in European law, Professors Kashkin and Chetverikov (2014: 127–129), adhere to a similar position. In their opinion, integration law emerges within the framework of the international legal system, but in the future it may show a tendency towards acquiring an independent status and towards separation from international law. Integration law can be considered not only as an intersectoral complex of legal norms, but also as a new type of legal system that has arisen as a result of international integration processes and is gradually taking an independent place in relation to both national legal systems (internal law of individual states) and international legal system (international public law).
In later works, Kashkin argues that integration law is a complex system of integrating legal orders operating in the territories of various integration organizations and having both general characteristics and peculiarities in each of its specific manifestations. Each integration organization develops its own integration legal order, operating on the aggregate territory of its member states (Kashkin and Chetverikov, 2014).
Iskakova et al. (Reference Iskakova, Tlepina, Karabayev, Kurbanova, Niyazgulov and Sabyrov2016: 1–7) indicate that integration law (the law of an integration association) is an independent type of legal system, which, in terms of its qualitative parameters and legal characteristics, is formed on the basis of generally recognized principles and norms of international law and is capable of influencing the course of events and the development of law. The presented statement confirms that integration law in the process of its development and functioning is separated from international and national law.
Bakhin et al. (2009: 108–111) expands the aforementioned provision on the independence of integration law, indicating that the integration entities’ laws had made an independent legal system, different from the systems of international and national law, which are legal entities sui generis. ‘Each integration group creates its own system of integration law, which should have priority (at least in some issues) in relation to the relevant provisions of national law’ (Bakhin, 2009: 109). This thesis is justified by the fact that within the framework of integration associations, specific sources of law appear – such as EU regulations and directives, uniform acts in the OGADA, decisions, resolutions and recommendations in the EurAsEC and the EAEU.
The place of integration law in legal systems is determined by Professor Abaydeldinov (Abashidze and Abaydeldinov Reference Abashidze and Abaydeldinova2013: 89) in his own way. In the opinion of Abashidze and Abaydeldinov (Reference Abashidze and Abaydeldinova2013),
regional law (the law of regional associations of states) is a rapidly developing phenomenon, which, on the one hand, is actually international law, on the other hand, it is becoming a new legal system, the right of regional association, which has a number of regional associations stipulated by agreements, cases with priority over national law.
As we can see, the idea of separating regional (integration) law into a separate legal system is being expressed with the determination of the priority of norms over the national legal system.
With regard to the separation of integration law into an independent type of legal system, it is widely covered in Western legal science. But it should be noted that the integration problems in the works of foreign scientists are considered through the prism of the European Union (EU) law, where its legal system is endowed with a special status that is not similar to either international law or national law. It is noted that the EU legal system, being placed by its nature and characteristics between the national and international legal systems, is a new, far from classical and non-standard version of this phenomenon.
According to Boulouis and Chevalier (Reference Boulouis and Chevalier1983), ‘The community has its own legal order … which acts in relation to both the member states and their citizens, endowing them directly with rights and obligations’ (Lopez n.d.).
Moreover, defining the specific features of integration associations, foreign researchers cite as an example the decisions of the Court of Justice of the European Communities, one of which states: “these powers, arising from the limitation of sovereignty or the transfer of powers from states to Communities, states limited their sovereign rights and thus created a set of rules that obliges both their citizens and themselves” (EUR-Lex 1964: 585).
Ameraksighe (Reference Amerasinghe2004) notes in his research that these international organizations have the following characteristics:
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the texts of the constituent documents and the legal practice of any organization form legal norms for this particular organization, and this right will not inevitably and in itself be binding on other organizations (for example, in terms of the organizational structure);
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if the constituent documents are of the same type, their interpretation or development through practice in one organization can create precedents or show the main directions of development for another organization (for example, with regard to membership);
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in some spheres of activity of international organizations, customary international law is in force, since its obligation is universal (if we are talking, for example, about the responsibility of an organization or other subjects to an organization, or about the principles of interpreting documents);
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the general principles of law applicable in all national legal systems are also applicable (such as the ultra vires principle);
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in the implementation and interpretation of the constituent acts of organizations, some so-called presumptions and implied principles (sometimes arising from the relevant court decisions) are applicable as general provisions underlying this process (for example, the concept of international legal personality, liability to third parties);
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in some areas of activity of all or most organizations, general convention law applies (for example, regarding the privileges and immunities of organizations and officials) (Amerasinghe, Reference Amerasinghe2004: 19).
Accordingly, pursuant to international researchers, it was determined that, in addition to endowing international legal capacity, states delegate very broad powers to these formations.
It is quite obvious that, despite the presence of a single goal – economic integration – each of the integration associations goes to it in its own specific way with the help of its own organizational, institutional and legal instruments. Therefore, referring all integration associations to one organizational type, we must admit that each of them is a sui generis subject, and their legal systems, despite being of the same type, do not form a certain general formation, but are independent, separate legal complexes.
At the same time, we insist that the legal complexes formed in various integration associations do not constitute a single legal system, on the contrary, each integration association creates its own (separate) legal system and there may be significant differences between them. The term ‘integration law’ (or ‘the law of integration entities’) is used to denote phenomena of the same type.
Thus, in the key position of our study, it is necessary to determine that we proceed from the fact that within the framework of integration associations, their own (separate) legal system is created, called ‘integration law’, which is different from international and domestic (national) law.
5. Conclusions
The positions stated above allow us to draw the following conclusions.
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(1) The conducted research allows us to assert that, along with international and national law, new types of legal systems have appeared in the system of international relations – integration law (the law of integration entities). Despite the uniformity, they do not form a certain common, single formation, but are independent, relatively separate legal complexes. While noting their isolation, we must at the same time make a reservation that each of these systems has a genetic and integrative connection with international law and the legal systems of the member states of the corresponding grouping.
Within the framework of each integration association, its own very specific system of law is formed. Therefore, there is no general integration law as such, but the legal systems of the European Union, the Eurasian Economic Union, the South American Common Market and others are functioning successfully. Integration law (the law of integration associations) should be understood as legal systems (legal complexes) that are formed within the framework of international integration associations that have set themselves the goal of cooperation in any area, primarily economic, up to the creation of a single economic space.
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(2) The formation of integration associations and integration law begins within the framework of international law on the basis of a fundamental international treaty (or a set of treaties), which states its emergence as a new subject of international law. However, the emerging complexes of legal norms, although they have a close genetic relationship with international law, cannot be considered as its component in all their parts. International law includes only those elements of the systems of law of integration associations that have international legal origin. At the same time, it is obvious that the states have to fully determine the correlation of international, integration and national law.
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(3) Within the framework of integration associations, there is no single (standard) system of bodies of an institutional association. Each of these associations creates a specific institutional system sui generis. However, there are certain general patterns in the formation of the structure of governing bodies within the framework of integration formations.
The presented provisions contained in this article can be applied to further study the phenomenon of ‘integration law’ (the law of integration associations).
Acknowledgements
The authors of the article would like to express their deep gratitude to Sergey Vladimirovich Bakhin, Professor of the Department of International Law of St Petersburg State University and scientific advisor for the help in preparing our study.
Competing interests
The authors declare none.
About the Authors
Zhanna Iskakova, PhD, is Associate Professor at the International Law Department, Faculty of Law, L. N. Gumilyov Eurasian National University. Her scientific interests include international personal and public law; the law order of the Eurasian Economic Union; law systems of the integration unions. She is a developer of the master’s educational program ‘International Law’ (7М04202) as well as the PhD educational program ‘International Law’ (8D04202). Zhanna Iskakova is a member of the editorial team of the Eurasian National University named after L. N. Gumilyov Bulletin, Law Series. She has been awarded the honorary diploma of the Ministry of Education and Science of the Republic of Kazakhstan.
Bekmyrza Karazhan is master of Law (International Law, 6М030200), a lecturer in the International Law Department, L. N. Gumilyov Eurasian National University (since 2017). His scientific interests include the law of the World Trade Organization, the law of economic regional integration and the international personal law. Bekmyrza Karazhan is a Research Fellow at Bolashak Consulting Group.
Bakizhan Seidesh is master in Jurisprudence, Senior Lecturer at the International Law Department, L. N. Gumilyov Eurasian National University. His scientific interests include international public law, international personal law; international law of treaties. Barikzhan Seidesh has been awarded the honorary diploma of the Ministry of Education and Science of the Republic of Kazakhstan.
Fazylzhan Karabayev has a PhD in Jurisprudence, and is Associate Professor of the International Law Department, L. N. Gumilyov Eurasian National University. His scientific interests include international personal and public law, international criminal law, and international transport law. Fazylzhan Karabayev is a Member of the Public Council of the Ministry of Justice of the Republic of Kazakhstan, a member of the Disciplinary Commission of L. N. Gumilyov Eurasian National University; a scientific expert of the scientific journal Eurasian National University named after L. N. Gumilyov Bulletin; a scientific expert of the scientific journal of the Academy of Law Enforcement Bodies of the Republic of Kazakhstan. Fazylzhan Karabayev has awardees from the government organization of the Republic of Kazakhstan: the honorary Diploma of the Ministry of Justice and the honorary Diploma of the Ministry of the Interior.
Zhanerke Zukay is master in Jurisprudence, and Associate Professor of the International Law Department, L. N. Gumilyov Eurasian National University. She has been a lecturer since 2002. Her scientific interests include international personal and public law as well as human rights. Zhanerke Zukay is a developer of the master’s educational program ‘International Law’ (7М04202).
