CONSTRUING OF COMPLIANCE OF THE PROVISIONS CONTAINED IN THE TREATIES SIGNED WITHIN CIS OR IN THE ACTS OF THE COMMONWEALTH BODIES WITH THE NORMS AND PRINCIPLES OF THE INTERNATIONAL LAW

Judgment No. 14/95/С-1/7-96 dated March 14, 1996 on construing Articles 1 and 2 in the Agreement on mutual recognition of rights and regulation of proprietary relations dated October 9, 1992 clarifies the issue of the right of property to power lines and gas-mail pipelines built in the territory of the Republic of Tajikistan and the Republic of Uzbekistan within the period of the USSR existence.

In its judgment, the CIS Economic Court has specified more exactly the meaning of the terms “the property”, “the territory of the member-State”, “authority of the State” for the tasks of such mentioned Agreement. The Court has stated that the property of the former Soviet Union located in the territory of the State which is a party to the Agreement of October 9, 1992 shall be transferred to ownership of such State. The same rule shall be applied, if any portion of the property (including any structural units, subdivisions) of the former All-Union enterprise, association, organization is located in the territory of the State which is a party to such Agreement, in spite of the fact that the enterprise itself is located in the territory of any other State which is a party to the same Agreement and that such property has been recorded in the balance sheet and is under the authority of such other member-State. The sections of power lines located in the territory of the Republic of Tajikistan were under the authority of the Power Engineering Ministry of the Republic of Uzbekistan.

The property of the former USSR shall be transferred to ownership of the member-State on the basis of the acts adopted by the State’s higher management bodies and public authorities.

The member-State shall retain its title to the objects located in the territory of another member-State, including the proprietary right to its shares in the object, which has belonged, by the right of common property, to several UnionRepublics which currently are the parties to the Agreement.

Judgment No. С-1/10-96 dated May 22, 1996 on construing the Agreement on mutual recognition of rights and regulation of proprietary relations dated October 9, 1992 pertains to applicability of the provisions of such Agreement to the property of the All-Union Lenin Young Communist League (hereinafter VLKSM). The CIS Economic Court has stressed that this problem solution shall be determined by the social and legal nature of such mentioned organization and by legal conditions of its property.

According to its Statute dated April 17, 1987, VLKSM was a non-governmental organization which was a legal entity formed on the territorial and industrial basis. The property of VLKSM was socialized on the level of the organization as a whole. Its structural subdivisions used such property and disposed of the same by the right of day-to-day management. In September 1991, VLKSM was reorganizes by means of division, and the property of VLKSM was transferred to its assignees in the proportions approved by the Congress.

The CIS Economic Court has admitted that Articles 2, 13 and 15 in the Agreement of October 9, 1992 shall be applicable to the property of VLKSM in its capacity of a non-governmental organization, as well as to its property transferred to its assignees in respect of: recognition by each member-State of rights of the legal entities of any other member-State which are the assignees of the former VLKSM, to the objects (including interests, portions, shares) located in the territory of the first, e.g. recognizing, member-State (Article 2); regulation of the objects which are the property of the VLKSM assignees in compliance with the legislation of the member-State in which territory they are located (Article 13); judicial defense of the property of the member-State’s legal entities ensured by such member-State in which territory such property is located, and impossibility of its forced forfeiture (save any exceptional cases provided for by the legislation), and payment of indemnity should such forfeiture occur (Article 15).

Opinion (May 1995) on division of the national non-defense sea crafts of the former USSR does not concern the direct point of the claim in connection with the fact that it is outside the jurisdiction of the CIS Economic Court: the claimant has failed to meet the requirements made to dispute settlement applications lodged with the Court; the issue of division of the national non-defense sea crafts of the former USSR is governed by neither international treaties nor acts of the CIS bodies.

Nevertheless, in its Opinion the Court investigated the regulatory base related to succession in title, specified its man principles and gave a review of international relations and other acts adopted within CIS.

The Court has recommended that the States should settle the issue of division of the national non-defense sea crafts of the former USSR through negotiations.

Opinion No. 10/95/С-1/3-96 dated May 23, 1996, on assigning the disputes related to recovery of currency losses incurred by legal entities and natural persons — the holders of currency deposits in Vnesheconombank of the USSR and its Branches, to the jurisdiction of the Court of the Commonwealth of Independent States,  was caused by locking of currency accounts with Vnesheconombank and its Branches, by Vnesheconombank and the Government of the Russian Federation following the collapse of the former Soviet Union.

The CIS Economic Court has come to a conclusion that this inquiry was outside its jurisdiction by the reason that, as of the moment of making the respective decision, no agreements were signed by the CIS member-States and no acts of the CIS bodies were adopted to specify the destiny of such currency deposits opened by the clients with former Vnesheconombank of the USSR (its Branches), and to govern recovery of losses to such clients, as well as to establish jurisdiction of any disputes arising in this connection. The Economic Court has taken into account that the CIS member-States (the Russian Federation in the first place) made a decision on such issue on their national levels.

Advisory Opinion No. 06/95/С-1/1-96 dated May 15, 1996 on compliance of the treaties /agreements adopted within CIS, to which reservations were made, with the provisions of the Viennese Convention on the International Treaty Law 1969 gives classification of agreements/treaties passed within CIS, and decisions and memorandums adopted by the Heads of States and Heads of Governments, to which reservations were made, by their objects: agreements establishing any international organizations; agreements on any economic, social, political, humanitarian issues.

Due to ambiguous status of the decisions made by the CIS higher bodies, the CIS Economic Court has identifies criteria by which such acts may be assigned to international treaties. The latter shall include:

-         Decisions adopted by the Heads of States and Heads of Governments to approve any draft treaties/agreements and annexes thereto, or to establish any bodied provided for by an international treaty/agreement;

-         Statements of the Heads of States and Heads of Governments, provided they make an annex to the treaty;

-         Memorandums, declarations of the Heads of States and Heads of Governments, provided they have the appropriate attributes of international treaties.

The CIS Economic Court has identified the three criteria of propriety of such reservations (procedure, form, object) and, having analyzed the reservations made by the States in respect of the treaties/agreements signed within CIS in 1991-1995, identified those which did not correspond the requirements.

The Court has stressed significance of the depository role in the process of making reservations, acceptance thereof and objection thereto.

Judgment No. 01-1/1-98 dated June 22, 1998 on construing certain treaties signed within the Commonwealth, and acts adopted by the bodies of the Commonwealth of Independent States for the purpose to determine possibility of reservations, their compliance with the object and purpose of such mentioned treaties, pertains to the status of the reservations made by the States at signing seven treaties/agreements and acts of the Commonwealth entered into within CIS.

The CIS Economic Court has established that three of the seven construed documents, namely: the Decision on Urgent Measures for Development of MIR Intergovernmental TV and Radio Broadcasting Company (MIR ITVRC) dated January 17, 1997; the Decision of the Draft Concept of the CIS Economic Integration Development dated March 27, 1997; the Decision on the Implementation Mechanism for the Concept of the CIS Economic Integration Development dated October 9, 1997, are not international agreements, hence no reservations may be made thereto as they are the acts of the international intergovernmental organization. In this connection, the statements made by the States and containing general references to their respective national legislations shall not bee deemed reservations.

The remaining four acts (Agreement on Cooperation in the Field of Knowledge Propagation and Education for Adults, dated January 17, 1997; Agreement on Dwellings Provision to the Military Men, Persons Retired from Military Service, and their Family Members, in the territory of the States which are the members of the Commonwealth of Independent States, dated March 28, 1997; CIS Decision dated January 19, 1996, on prolongation of validity period of the CIS member-States Decision On Certain Measures to Stabilization of the Situation at the National Boundary of the Republic of Tajikistan upon Afghanistan of January 22, 1993; Decision on the Procedure of Preparation and Training of the CIS Member-States’ Military and Civil Personnel allocated to the Peace Maintaining Joint Forces, dated October 8, 1996) do not contain a prohibition to make reservations, and do not specify to what provisions of such mentioned agreements the reservations may be made. Acceptability of any made reservations shall be estimated from the angle of their compatibility with the object and purposes of respective agreements.

The CIS Economic Court considers the reservations made by:

§         the Republic of Azerbaijan — on exempt thereof from Article 9 of the Agreement on Cooperation in the Field of Knowledge Propagation and Education for Adults, dated January 17, 1997;

§         the Republic of Armenia — on changing wording of Part one Article 3, and on exempt thereof from Parts two and three Article 3 of the Agreement on Dwellings Provision to the Military Men, Persons Retired from Military Service, and their Family Members, in the territory of the States which are the members of the Commonwealth of Independent States, dated March 28, 1997;

§         the Republic of Belarus — on exempt thereof from Parts two and three Article 3 of the Agreement on Dwellings Provision to the Military Men, Persons Retired from Military Service, and their Family Members, in the territory of the States which are the members of the Commonwealth of Independent States, dated March 28, 1997;

to be incompatible with the object and purposes of the respective agreement.

The CIS Economic Court has emphasized, that should the States make any reservations incompatible with the object and purposes of any international agreement, the depository shall be entitled to attract attention of the other members to such fact. The final decision on compatibility of any made reservations shall be made by the States which are the members to a particular agreement. Such member-States as well as the CIS Executive Secretariat which fulfills the depository duties may apply to the CIS Economic Court requesting for construing of a particular agreement from the angle of specifications of its object and purposes, and from the angle of compatibility of any reservations with the same. Viewpoint of the CIS Economic Court may be taken by the States into consideration when identifying legal consequences of any reservations incompatible with the object and purposes of an agreement.

The CIS Economic Court has ruled to consider it reasonable to revise Rules 20 and 21 in the Rules of Procedure of the CIS Council of Heads of States and CIS Council of Heads of Governments as approved by the Decision of the CIS Council of Heads of States dated May 17, 1996, with a view to specify the frame of issues on which the decisions can be made, to decide on permissibility of making any reservations at adoption of such mentioned Rules, to define the form of conveying disinterest of a State in one or another issue.

Judgment No. С-1/13-96 dated September 10, 1996 on construing Articles 83 and 86 in the Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Cases, dated January 22, 1993  clarifies the procedure of coming thereof into effect for the Republic of Azerbaijan and Georgia and the necessity to lodge the instruments of ratification of such mentioned States, after the States which are the parties to this Convention give their consent for joining such mentioned States to the Convention.

Since, according to Article 83 of the Convention, ratification as a form of consent of the States to the binding nature of the Convention upon the same has been provided only for the States which signed the Convention on January 22, 1993, so use of such method with respect to other States, in particular, the Republic of Azerbaijan and Georgia, is not required. Should any States wish to join the Convention after its coming into effect, their consent to the binding nature of the Convention provisions shall be conveyed in the form of a notici (note) of joining to the same, without subsequent ratification.

The moment of coming the Convention of January 22, 1993 into effect for the States wishing to join the same is specified in Article 86 of such Convention, and is equal to thirty days from receipt, by the depository, of the notification of consent to joining thereto. The Convention has come into effect for the Republic of Azerbaijan and Georgia, on July 11, 1996.

Judgment No. 11/95/С-1/4-96 dated March 25, 1996 on construing the Agreement between the Government of the Republic of Moldova and the Government of the Republic of Belarus, On Free Trade, dated June 16, 1993 was caused by collection, by the Republic of Belarus, of customs duties not provided for by such Agreement.

The CIS Economic Court has ascertained that in pursuance of Item 1 Article 1 of the Agreement, the provision was included into Ordinance of the Council of Ministers of the Republic of Belarus No 218 dated April 19, 1995, of non-collection of export duties when exporting any goods originating from the Republic of Belarus to the Republic of Moldova. After signing, on January 6, 1995, of the Agreement on Customs Union between the Republic of Belarus and the Russian Federation dated August 28, 2006, wherein, in particular, fixing of common customs rates in respect of any third countries was provided (Item 2a Article 1; Item 1.1 Article 2) the Cabinet of Ministers of the Republic of Belarus entered, on August 28, 1995, respective changes in the Ordinance of April 19, 1995, in which consequence collection of customs duties from the goods exported to the Republic of Moldova was renewed.

Being governed by the principles of the International Law, in particular, by the principles of international treaties, the CIS Economic Court has stated that signing the Agreement on Customs Union between the Republic of Belarus and the Russian Federation of January 6, 1995, and adoption of the Ordinance of August 28, 1995 by the Cabinet of Ministers, give no grounds for non-fulfillment, by the Republic of Belarus, of its respective obligations to the Republic of Moldova under the Free Trade Agreement dated June 16, 1993. In this connection the obligation to pay customs duties on the goods exported from the Republic of Belarus, imposed on the Republic of Moldova, shall be invalid without written consent of the Republic of Moldova.