Challenging international treaties before the Court of the Eurasian Economic Union: Theoretical analysis

Abstract

The article provides a theoretical analysis of the provisions of the law of the Eurasian Economic Union (EAEU) applicable to challenging international treaties concluded within the framework of the Union before the Court of the EAEU. The author identifies certain contradictory aspects in the law governing this category of cases that are due to the cumulative legal nature of the acts submitted for judicial review, the subject of the dispute and its disputants (parties). It is argued that the Union’s exercise of its international legal capacity to conclude treaties may give rise to several questions that require legal assessment, including whether the object and purpose of an international treaty are lawful, the expression of will by the Union is valid, and whether the observance of the conclusion procedure is complied with. In this regard, the author critically assesses the lack of competence of the EAEU Court to review international treaties made by the Union with third states, their integration associations, and international organizations. By referring to the case-law of the Court of Justice of the European Union, the author demonstrates that judicial control plays a significant role in assessing questions of competence and substance with respect to the exercise of legal capacity to conclude treaties by an integration association. The author puts forward and substantiates the proposal to reform the existing competence of the Court of the EAEU to settle disputes on the conformity of international treaties within the Union to the EAEU Treaty and replace it with the competence to carry out an optional preliminary review of international treaties within the Union and international treaties with third parties to assess their compliance with the EAEU Treaty. It is suggested that member states and bodies of the EAEU, that are engaged in concluding a treaty, should have the right to address the Court of the EAEU with a request to conduct a review. If implemented, the proposal will expand the scope of judicial control beyond international treaties within the Union to also include international treaties with third parties. This will positively impact the stability of the Eurasian legal order.