TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
obrazovanie, nauka i kul'tura v SSSR: Statisticheskii shornik
(Moscow, 1977, 9; SSSR: zarubezbnye strany, 1987:
Statisticheskii sbornik (Moscow, 1988), 83.
The CPSU justified its dictatorship as the
best way to obtain the well-being of the workers and peasants, 7
and also as necessary to help prevent or win any future world
Over time, however, the Soviet system degenerated, and worked
increasingly for the benefit of the party establishment (the
at the expense of the broad masses of workers and peasants.
Meanwhile, the threat of invasion diminished. From this
perspective, which I call dual delegitimation, we can better
understand the sudden, unexpected, and relatively bloodless
restoration of capitalism 10
in Russia. The system, in its own *553
legitimacy as being no longer necessary for defense against a
war that never came. Likewise, the system lost legitimacy
because consumer well-being was simply higher in the west and
the nightmare of Tsarist famine, illiteracy, and inequality was
long past. These systemic facts help explain the near bloodless
dissolution of the Soviet system.
Soviet foreign policy was less aggressive
than what the U.S. foreign policy elites, particularly the
military, perceived at the time. Rather than relentlessly
seeking to inflame global revolution at every turn in a zero-sum
struggle against the West, the USSR first sought to build
socialism in one country, 11
and then in its own sphere of influence, to construct a stable
autarchic system. The Soviets sought autarchy as the means to
Geopolitically, the Soviet system was a
series of concentric rings. The USSR was at the center, then
Eastern Europe, 12
then Third World Marxist states, and, finally, Third World
non-Marxist allies. The closer a country was geographically to
the Soviet center, the greater the level of integration into the
autarchic economy. Western efforts to "roll back" Marxism were
generally unsuccessful, 13
perhaps because the Soviet system was autarchic. The failure of
"roll back" ultimately led to the "Brezhnev doctrine," wherein
the USSR declared the attainment of "socialism" (i.e. single
party state capitalism with worker safeguards) in any country as
To attain autarchic economic development, the
USSR implemented an import substitution industrialization
("ISI") model for economic development. ISI had already been
used in the West for the industrialization of the United States
and Japan. 15
However, the Soviet*554
system's rationales were the opposite of those of
the United States. The USSR justified its version of ISI through
rationales of substantive equality and solidarity, and
contrasted those with the merely formal freedoms conditioned by
economic inequality that justified western democracies 16
some of which were social. Social democracies provide guaranties
of basic well being, especially to workers. Socialist production
in contrast is the state ownership of enterprises, a form of
Russia's approach to ISI was, within its own
terms, rational. The Soviet leadership considered obtaining and
maintaining the autarchy of the USSR a necessary, legitimate,
and attainable goal. 17
Given the historical fact that Russia has suffered invasion
after invasion, the Soviet goal of economic autarchy as a means
to national security, though definitively economically
suboptimal to trade and international economic integration, was
politically justifiable, albeit increasingly inapt due to
sub-optimal economic performance.
Pursuant to the ISI strategy, the USSR
created a ruble currency economic zone, and made the ruble
Capital restrictions were the norm as were border controls, such
as customs duties and passport checks. The policy of autarchy
complemented military security by enabling independent political
choices. Soviet leaders saw military security as a precondition
to economic security and well-being. 19
To circumvent the problem of a lack of foreign currency, the
inability to use the ruble for currency exchanges overseas, and
related problems arising from the nature of a closed economic
system, barter in, and for, real goods was taken up between the
COMECON countries. That practice was known as "countertrade"
i.e. cashless goods-for-goods barter. For example, the USSR
would barter with Cuba, trading sugar for finished Soviet goods.
Barter also occurred at the *555
level, though not as a legitimate de jure instrument of state
policy, but as a de facto necessity of everyday life, albeit of
questionable legality. 21
"Gifts" could be justified as "social" and "fraternal" acts
under the Marxist logic of transforming monetary economic
compulsion into cooperative voluntary social acts. With
capitalist restoration, however, the primitive version of a
"gift economy" warped into generalized bribery, undermining the
rule of law in the post-Soviet era. 22
Preferential tariff treatment for the COMECON
and Soviet client states was a key feature of the Socialist
bloc's international trade policy. 23
High tariff barriers were created to protect the autarchic
COMECON home market. 24
These tariff barriers would also encourage infant industries. 25
Non-tariff technical barriers such as restrictions on imports
for health and safety reasons also served the ISI logic.
Meanwhile, intellectual property would be either unprotected or
weakly protected to use Western innovation to support the USSR.
For example, piracy of Western computer software and microchip
technology was the norm during the Soviet era. 27
Intellectual property law enforcement in Russia remains a sore
spot in United States-Russian *556
this day. 28
Most importantly, the centrally-planned economy's taxing and
subsidization systems aimed to accumulate the surplus capital
needed for economic development through the creation of
infrastructure (e.g., housing, roads, airports) via forced
and also, ominously, for military production.
The political and legal institutions in the
USSR and its satellites paralleled those of the West. Legal and
institutional parallels included: the Warsaw Treaty Organization
(the Warsaw Pact), which paralleled the North Atlantic Treaty
Organization (NATO); 30
the Council for Mutual Economic Assistance (COMECON, also known
as CMEA), for its part, paralleled the European Economic
Community (EEC). 31
Other parallels could be found fairly readily and, in my
opinion, Soviet socialist legalism should be seen as a variant
of civilianist law.
Legal and political parallels arose because
each system sought the same goals (economic development,
technical progress, national security) albeit by somewhat
different methods and justified by differing rationales. The
Soviet system was an authoritarian egalitarian variant of late
modernity that sought to attain economic development using the
Western import substitution industrialization (ISI) model. 32
The Soviet systemic rationales were substantive equality and
social solidarity; the West's were freedom, property and
individual rights. These rationales also served as principles
for organizing production and social life generally.
The Soviets, like the West, sought the same
goals: to obtain a better life for workers (the people) and
physical (military) security (i.e., defense). The means to those
ends, however, differed. The USSR sought to obtain prosperity
not through the capitalist anarchy of production but through
centralized economic planning. 33
Similarly, the USSR sought to attain security through autarchy
(isolation and independence) rather than through economic
interdependence was the path to peace the West
took, as the EU and WTO exemplify. 35
The Soviet economy's key problem was the fact
that it was defined around building up a military-industrial
complex to fight and win a World War III if ever attacked again:
autarchy as a means to security. 36
in pursuit of its military defense, the USSR and its Warsaw Pact
allies wasted almost all their surplus production on
unproductive military spending. 38
Ultimately, the United States response to the failure of
rollback and the Brezhnev doctrine was to compete in fields
where the USSR could not compete due to technological
inferiority or due to the structure of a closed dictatorship.
The United States' own arms buildup aimed to bankrupt the USSR
by forcing it into an unsustainable arms race, a policy that
The resulting economic strains led to constant shortages that
seriously undercut the USSR's claim to be creating a workers'
paradise with the highest standard of living for ordinary people
on earth. 40
The USSR was undermined by economic dislocations, the inability
of the planned economy to deliver high quality goods to the most
needed areas on time, and due to the increasing strain of
militarism. "The party of Lenin," despite such stunning initial
success, was ultimately unable to match capitalism*558
in the quality and abundance of consumer goods. 41
This, coupled with the increasing tendency of the nomenklatura
to serve its own goals rather than to seek the well-being of all
the Soviet peoples, and the fact that the U.S., unlike Nazi
Germany, was not threatening to invade the USSR to seize
resources, led to a crisis of purpose, of legitimacy, and a
The EU aims to form a single, integrated
European market to: (1) break the link between territory and
trade which drove Europe into at least two global wars; and (2)
generate the prosperity through trade that results from
specialization in production, economies of scale, and reduced
transaction costs. 42
At one extreme, Euro-Federalists have cautiously and tentatively
argued for the formation of a "United States of Europe." 43
The Euro-Federalists' ultimate goal is both unrealistic and
undesirable - recreating mercantilist nation states as
mercantilist continental empires would only lead to more global
Good, practical reasons, however, validated
the EU's creation. The EU's objectives, also (and more
importantly) included preventing another European war and
improving the well-being of all workers. 45
Those objectives were attained through the functionalist method
of forming specialized institutions defined around particular
goals to take advantage of unbiased expert judgment. This expert
judgment in specific sectors in turn enabled the EU to attain
socially desirable goals in the common interest of all Europeans
in an incremental step-by-step fashion. The functionalist method
first pooled together the military industries: coal, steel, and
atomic power via the European Coal *559
Community (ECSCE) 46
and the European Atomic Energy Community (EURATOM). 47
European states also formed a customs union, the European
Economic Community (EEC) to disaggregate national cartels, which
were seen as a cause of wars for market share, because trade and
territory had been linked and as a result the only way any state
could expand its economy and resource base was by war. 48
Thus, the customs union aimed to attain a single integrated
market via the free movement of goods, workers, capital, and
enterprises (the four freedoms). Ultimately, the EU evolved into
a supranational body with a common currency (the Euro), common
citizenship and passports, common borders (the Schengen Area),
and to some extent, a common foreign and security policy. 49
As a confederation, 50
the EU began to share many elements of classical Westphalian
The CIS arose in the chaotic aftermath of the
collapse of the USSR, which saw competing concerns hamper
political movements toward cooperative relations in the former
Soviet states. 52
Unlike the *560
USSR or the EU, the CIS never had well-articulated
goals. While one faction of the former Russian nomenklatura may
well have seen the CIS as the Soviet Union by other means,
another faction of Russians, comprised of those who had been the
former economic criminals, may well have seen the CIS as merely
a vast economic opportunity. 53
Even presupposing the unity of Russian nationalist leaders, the
fact that such unity centered on "great Russian nationalism"
rather than "proletarian internationalism" indicates that the
CIS's centralizing tendencies were disunited and unattractive to
the newly independent national states. On the part of the CIS
leaders, this indicates disunity of factions and of objectives.
Nevertheless, even if there were a unity, if only of great
Russian factions and objectives, then that unitary vision was
not able to attract adhesion or persuade the newly independent
national republics in, e.g. former Soviet Central Asia, to help
form some variant of confederation featuring a customs union
and/or common currency and/or common defense. 54
The lack of a compelling and attractive
central vision of shared goals and objectives for the CIS
crippled it as an institution for transnational governance.
Absent a common teleology or purpose, the CIS *561
degenerated into the political overseer of the
peaceful dissolution of the USSR 55
and, to a limited extent, the introduction of market mechanisms
to replace the planned economic system. Consequently, in Western
literature the CIS is typically described as "moribund" and can
accurately be compared to the present day British Commonwealth.
1. The Breakdown of the CIS
The CIS failed to evolve into a viable
transnational governing institution due to a lack of a common
and elite inexperience in transnational institutionalism, 58
particularly with regards to market liberalization. 59
The CIS sought to undertake the simultaneous tasks of
privatization, political and economic liberalization, and the
implementation of the rule of law to replace rule-by-command.
However, the CIS lacked experts and practical proficiency in
transnational governance beyond the context of a strong vertical
hierarchy of a one-party dictatorship. Consequently, liberal
western transnational governance models such as those of the
European Communities could not inform the CIS's already
overwhelmed managerial class. Moreover, some of the new
managerial class were Soviet era "economic *562
while others were former nomenklatura. Consequently,
factionalism soon ensued both between and within these two
historically conflicting groups. The CIS's failure is
unsurprising, and was perhaps even inevitable, given those
Lacking a common vision, the CIS defaulted into the role of the
clearinghouse for the USSR's remarkably peaceful dissolution via
two distinct factors: (i) privatization; and (ii) the devolution
of former federal powers to individual Republics. 62
The institutional problems mentioned
contributed to the breakdown of CIS. For example, the CIS's
transnational trade policy was characterized by incoherence.
Numerous overlapping multilateral and bilateral treaties covered
similar issues, 63
leading to economic disputes due to the contradictory
obligations imposed by the various treaties. 64
However, these overlapping multilateral and bilateral treaties
also left many issues unaddressed. 65
For example, the CIS' agreements were not sophisticated enough
to take into account non-tariff *563
such as health, safety, and technical restrictions to trade. 66
In sum, CIS institutions and rules were simply ineffective.
Any effort to bring the USSR's customs and
monetary union into the CIS era was thus doomed for several
interlocking reasons. The absence of legal concepts important to
coordinating supranational and intergovernmental tendencies and
attaining by accretion the objectives of economic
integration--such as "basic economic rights" (the four freedoms)
subsidiarity, proportionality, and acquired community positions
(acquis communautaire 68
CIS treaties further crippled the CIS. Common institutions such
as the Economic Court of the CIS were weak or entirely absent 69
because of a lack of a common will, common goals, and common
Although the CIS lacked the institutional
expertise and juridical structure to transform the USSR into
something like the EEC, this does not mean that it is currently
impossible or undesirable. Accordingly, this paper considers the
Eurasian Economic Community *564
(EurAsEC) to see
whether and how the CIS may consider and implement EU
2. The Eurasian Economic Community (EurAsEC)
Following the instauration of market
mechanisms to replace the planned economic system, and because
of the EU's continual success as an institution of transnational
governance, the Russian Federation, Belarus, and Kazakhstan
together instituted a customs union known as the "Eurasian
Economic Community." 71
The EurAsEC could, and should, look directly to the EU's growth
and evolution as a source of inspiration and also for basic
legal concepts such as:
Direct effect of treaty provisions (that
private persons have directly enforceable rights and duties
under the EurAsEC treaty).
The four freedoms (free movement of goods,
labor capital, workers and enterprises) 72
Acquis communautaire (the idea that each step
toward a single integrated market is irreversible, and that new
adherents to the EurAsEC must agree to abide by the existing
"General principles of international law" as
a source of EurAsEC law
The principle of legality (that EurAsEC
institutions should be legal, not political)
Functionalism (that the EurAsEC institutions
should be built out incrementally to progressively attain a
single integrated market)
Economic development occurs more quickly
through open borders. 74
Thus, despite critiques of the rule of law and democracy in the
former Soviet republics, the path forward is through free trade.
development is the most practical and effective
way to build stronger and more democratic institutions in the
former Soviet Republics because wealth creates the conditions
that enable genuine human rights protection. 75
The authoritarian democracies in the former Soviet Republics are
not systematic violators of the most basic human rights. 76
Functionalist incrementalism is thus more
effective than extreme methods at securing human rights
Economic integration resulting from freer trade and improved
economic performance are positively correlated. 78
Likewise, improved economic performance and improved human
rights protection are positively correlated. 79
Consequently, through a constructive engagement policy, 80
aid and *566
trade can help improve economic well-being, leading
to both improved human rights protection, and improved rule of
law within the former Soviet Republics.
Supranational and intergovernmental
governance worked well in the EU to leverage Member States and
their immediate neighbors out of war. 81
The former Soviet Republics can and should use those same
methods - economic integration leading to increased prosperity
to foster peace and the progressive realization of human rights
-to support the rule of law and human rights protection. 83
Free trade generates economic prosperity, which in turn
generates improved human rights protection. 84
Thus, free trade improves human rights protection.
3. Comparing CIS and EU institutions
Marx demonstrated that the business cycle of
booms, panics, and depressions causes wars to obtain markets and
raw materials as well as to burn off surplus production and
employ the unemployed. 85
Both the EU 86
and the USSR sought to prevent such wars and to attain
well-being for ordinary workers. However, their similar
teleological goals were to be attained by differing means.
Institutionally, the USSR was, at least nominally, a workers'
and peasants' dictatorship: an advanced vanguard party would
exercise a dictatorship on behalf of the proletariat 87
to prevent 88
the wars for market share that capitalism unleashed in economic
crises at the trough of business cycles. 89
While we might criticize the idea of a vanguard party exercising
a dictatorship on behalf of workers and peasants, we should also
understand that the USSR's proletarian dictatorship shared the
same stated objectives as the EU. Paradoxally, the EU and USSR
both sought to transform the state (coercion) into society
(voluntarism), but through opposite means. The USSR, following
Marx's prescription to transform the state into civil society, 90
sought to end market relations entirely 91
to attain the goal of peace and prosperity. The EU sought to use
market forces to attain that same goal. 92
Like the EU, the USSR was multinational,
multilingual, and attained a monetary union with the free
movement of goods, labor, and capital. But, the USSR did not in
fact attain the best standard of living for workers. Life
expectancy was only a few years lower than in *568
the West but double that of Tsarist Russia. 93
Leisure was assured, but consumer goods were always in short
The quality of goods suffered from production deadlines at the
end of the five-year planning cycles when production goals had
to be met, though this improved over time. 95
However, in sum, the quality of Soviet life did not match
Western European standards. This was mostly because so much of
the government's resources were wasted on building a
military-industrial complex that did not advance the well-being
of Soviet citizens. 96
Moreover, the planned economy faced an
increasingly complex task: the centralized coordination of
production and distribution of a growing variety of goods. 97
Central planning of a primitive industrializing economy with
only a few basic inputs is considerably easier than for a
diversified industrial economy with hundreds of consumer goods.
The Soviet planned economy succeeded in shifting the USSR from a
semi-feudal economy producing but a score of basic goods into an
industrial economy. 98
This newly created industrial economy, however, produced a
myriad of different goods. 99
This production diversity doomed the centrally planned economy.
Namely, the ever-greater product variety made central planning
increasingly complex and thus less efficient when coordinating
production and consumption. Soviet production was not, however,
entirely inefficient. Soviet weaponry was cheap, durable, easily
maintained and reliable. The USSR was the first country to put a
satellite into space, and later a man into orbit. Still, the
USSR's centrally planned economic production system was more
appropriate for a semi-feudal industrializing society with few
goods than for a highly developed industrial economy producing a
myriad of goods. 100
The institution of a single party
dictatorship and the teleology of the USSR were not apt to
Thus, the customs and monetary*569
union of the
CIS quickly degenerated into national economies with separate
currencies and tariff barriers still trying to implement the ISI
development model - a model that neoliberalism had long
The establishment of inter CIS customs and tariff barriers
raised transaction costs and reduced economies of scale. 103
Restructuring a centrally planned dictatorial economy centered
on autarchy and war into a consumer oriented networked
globalizing economy exacerbated those problems. The result was
sub-optimal economic performance. 104
At times, the newly independent Republics were trying to
implement outdated and inefficient liberal or Soviet models of
economic development. At other times, they became disposable
experiments in neoliberalism. All too often the results were
chaos, corruption, asset stripping, and economic failure 105
resulting in a declining average life expectancy in the
post-Soviet years. 106
These results explain why multiparty liberal democracy did not
take root in some of the former Soviet Republics. The return of
one-party rule in some former Soviet Republics after the
collapse of the USSR resulted from the chaos of the failed
Soviet planned economy model, the failed ISI model, and the
asset stripping and kleptocracy which resulted from neoliberal
experimentation. The CIS's lack of institutional experience and
personnel expertise in the principles and practices of liberal
markets and transnational governance in any context other than
of a single party dictatorship in turn explains the
failure of the CIS member states to have adopted EU governance
models in the late 1990s.
This section describes the relationships
between the rule of law, the economy, human rights protection,
and democracy. It outlines ideas about political legitimation
and presents practical methods to advance transnational
relations to explain how international relations between the
United States, the E.U., and the former Soviet Republics may be
A key question for transnational governance
is: how to untangle the relationships among the rule of law,
democracy, the economic system, and human rights? The rule of
law, democracy, free trade, and human rights protection are all
positively associated - improving the protection of one tends to
improve protection of the others. 107
Does any hierarchy order their relations?
I hypothesize that the rule of law is needed
for an optimally productive market economy, and that a
productive economy and the rule of law in turn lead to effective
human rights protection de jure and de facto respectively. I
also argue that democratic institutions are less important to
human rights protection or to the attainment of the rule of law
than is usually thought to be the case. 108
That is because, in practice, democratic processes are used only
to reinforce and legitimize policies which were already formed
by elites rather than to actually create public policies. 109
Most legislative bills are introduced not by democratic
referenda but by elected republican representatives. *571
Policies are typically proposed by elites 110
which are then either taken up or rejected by masses through the
democratic process. 111
The West tends to equate democracy with the
rule of law, 112
and wrongly presumes that the democratic process is necessary to
the rule of law and human rights protection. I maintain that the
rule of law leads to a productive economy. 113
The rule of law and a productive economy together foster
democratic processes and provide substantive human rights
protection. These ideas are summed up in the following "key
The rule of law is necessary for a
productive open market; 114
A market economy
with social protections favors prosperity;
favors protection of human rights;
can be ex post facto legitimized by the success of public
policies that were politically unpopular at the time of their
adopting the position that democratic processes are either the
source of human rights protection or a necessary precondition to
the rule of law, I argue that the rule of law and economic
development positively correlate 115
and that each is a precondition to effective and meaningful
human rights defense. I also argue that democratic legitimation
can be an outcome of economic and legal development. 116
These arguments reiterate the historical
materialist claims that economic processes ultimately drive
legal and ideological rationalizations of any given political
The dialectical materialist refinement of that argument is to
note that the economic base (the forces of production) generally
determines the legal forms of the superstructure (the relations
of production), but that exceptionally, at particular times and
under certain conditions, the superstructure (ideology) can
determine the base (production). 118
In other words, the material forces of production generally
constitute and constrain the ideological superstructure that
rationalizes them - but, exceptionally, at certain times and
places in history, the ideological superstructure can influence
and compel the structure of the material forces of production.
Marxism aimed to act as a catalyst for the
natural and inevitable movement of history by intervening "at
the margins," - these exceptional*573
social life where superstructure can influence base. 119
Perhaps the vanguard party's altruism outran the basic needs for
consumption of the productive base (the workers) it was leading.
Perhaps the vanguard party became corrupted. Perhaps both
explanations apply. Nevertheless, the USSR shows that vanguard
parties exercising a dictatorship on behalf of the proletariat
are very effective at ending illiteracy and starvation, and at
introducing sex equality, but are not terribly effective at
coordinating production and consumption in a complex consumer
The rule of law, economic development via
free trade and open markets, human rights protection, and
democracy all correlate positively and are mutually reinforcing.
These concepts form an interrelated hierarchy. I postulate their
priority as follows. Without basic laws, economic development is
impossible due to physical insecurity and legal uncertainty.
Without economic development, human rights protection is
impossible or at least meaningless. Meanwhile, democratic
processes require a basic legal system and at least minimal
economic well-being. Human rights protections without economic
development are sub-optimal. For example, religious freedom in
the face of starvation is merely the right to receive one's last
rites, so to speak. While dying with dignity isn't utterly
meaningless, would it not be better to choose life, somehow? By
placing survival rights, such as the right to food, 122
ahead of psychological rights, or even political rights, we will
better protect people in real terms.
In any case, democracy, productive open
markets, human rights protection, and the rule of law are all
positively correlated, and mutually reinforcing. As Russia
increasingly implements the rule of law, transaction costs will
decline, which will strengthen the economy. This, in turn,
creates an environment where it is possible to envision better
human rights protections and practically apply the material
needed for substantive human rights protection and
Functionalism argues that institutions
should be understood and formed in terms of the functions that
they aim to fulfill. 124
Functionalist approaches to transnational governance seek to
safeguard peace by drawing nations together, 125
rather than splitting them apart. 126
Functionalism forms specialized institutions incrementally 127
to attain specific practical purposes. 128
When functionalism is linked to market liberalism, it seeks to
obtain peace, obviate war, and generate prosperity and economic
interdependence by delinking*575
One tenet of functionalism is that economic and political
integration is best achieved not at one fell swoop with
grandiose and impossible ideas, 130
but rather through incremental efforts in diverse fields. 131
Functionalism is realistic and pragmatic: it seeks to attain the
possible here and now rather than utopian dreams that never
really come true. Its methods obtain political legitimacy after
the fact because of the success of the institution at achieving
practical goals. 132
Ultimately, functionalists aim to prevent war not by keeping
states apart, but by drawing them together - by establishing
transparent, responsible, and effective transnational governance
structures in specific sectors. Neo-functionalism takes
functionalism one step forward by seeking political integration.
Just as functionalist methods were
successfully applied to create the EEC and grow them into the
EU, so can they be used to build stable prosperous transnational
governance among the former Soviet Republics, and foster the
rule of law and human rights protection through increased
economic prosperity. 134
Specifically, the functionalist method would focus on developing
the idea of the rule of law in Eastern Europe. First is the idea
of an impartial independent judiciary*576
implement the national will as expressed in legislation. Second
is the idea of law as more than mere positive command, but law
also as persuasive attractive, and moral appeal. Third is the
idea of legal certainty. This requires further construction of a
but partially existent legal culture. In Estonia, for example,
Soviet era judges were effectively shunted aside to secondary
tasks, retrained, and entered retirement or academia. New judges
were selected from shockingly young candidates. To a much lesser
extent this is also happening in Russia. The lack of
institutional retraining initiatives extending from the United
States or E.U., however, can be partly to blame. Educating and
reforming an entire legal culture is necessary, but initiatives
to do so are starkly lacking. With the formation of a neutral
independent unbiased judiciary it would then be possible to form
transparent, responsible and effective institutions. A
functionalist approach would then seek to protect human rights
sequentially, focusing first on survival rights, then on
economic rights, progressively attaining ever greater human
rights protections: the hierarchy of norms 135
to attain the hierarchy of needs. 136
I have argued elsewhere for hierarchizing some of the basic
human rights as follows: the right to one's own life, then the
right to food, 137
then the right to shelter, then political rights and cultural
In other words, one's basic needs in the hierarchy must be met
before the more advanced and complex needs can be satisfied. 139
All these rights are vital to a good life, but some naturally
From the Russian perspective, establishing a
judiciary or administrative institution is easy: The President
and Prime Minister issue the order. But the question is, how can
Russia form an *577
independent and unbiased judiciary? From the EU
perspective, forming judicial expertise is not difficult. It is
a matter of training in western legal methods. Joint
E.U.-Russian judicial and administrative bodies might enable the
positive implementation of neutral unbiased adjudication. EU
judges would also thereby be able to compare experiences,
methods, and ideas with their Russian counterparts. This is to
merely indicate the extent of the problem and suggest possible
Democratic deficit in the EU was not an
obstacle to economic and political integration because of
legitimation after the fact. As long as processes are
transparent (i.e. open, governed by the rule of law) and not
tainted with secrecy and deception (i.e. political), policies
can attain legitimacy after their implementation by virtue of
The EU was a long term project driven by
elites with minimal mass support. 140
It was built gradually and sequentially, using the functionalist
method that focused first on aggregating the war industries, and
then on dissolving national cartels by building a single
integrated market for goods, labor, capital, and services. The
war industries were made subject to common control not to
prepare for a war against the Soviet bloc, but to prevent yet
another Western European War. While NATO greatly facilitated the
EU's development by providing a defensive umbrella under the
premise of collective security, two World Wars had already shown
that collective security alone is insufficient to prevent war.
Something beyond nation-state alliances are necessary to achieve
lasting peace. That something is economic integration.
The EU was built without the mass public
support often thought needed for political legitimization.
Despite this democratic deficit, the EU has emerged to become
one of the world's most competent and effective transnational
organizations. One lesson of the EU for the former Soviet
Republics is that the former Soviet Republics problem of
democratic governance is surmountable. We can and should draw
all the lessons from the EU's experiences. Democratic
institutions in Eastern Europe can be built gradually over time
using functionalist methods. Transnational governance via
functionalism will generate the economic well-being necessary to
create a foundation for improved respect of human rights.
We now turn our
attention to the relationship between the EU and Eastern Europe.
This will help us understand exactly how Eastern Europe can
apply EU governance models to build effective, transparent
participatory state systems governed by the rule of law, and
thus enjoy economic prosperity and improved human rights
"We propose the creation of a harmonious
economic community stretching from Lisbon to Vladivostok" -
Vladimir Putin 141
The success of the EU as an example of
transnational governance and the growing number of Eastern
European legal scholars familiar with the basics of EU law
explain the growing acceptance of the EU in the former Soviet
republics. The Russian Federation's ultimate long-term goal with
the EU is to form an economic union to achieve trading synergies
and encourage technological innovation 142
to generate economic development. Schumpeter rightly noted that
innovation generates wealth. 143
EurAsEc and the EU complement each other 144
because each has the same goals: to attain economic development
via free trade and to engage in economic integration to create
the economic base needed for human rights protection, to
guarantee the rule of law, and to obviate the risk of war.
EurAsEc could develop independently of the EU, but he logic of
economic synergy resulting from specialization and economies of
scale enjoyed as a result of free trade, however, explains why
both transnational organizations are more effective when
cooperating rather than when competing with each other. These
economic benefits are further augmented by the fact that good
foreign relations means fewer resources wasted on weapons.
France's Nicholas Sarkozy supports Russia's
desire for economic integration with Europe, as does Italy's
Silvio Berlusconi. 145
As earlier noted, the desire for increased economic integration
is partly driven by the fact that trade between Russia and
Europe is growing. *579
trade reflects Russia's comparative advantage in hydrocarbons 146
and, to a lesser extent, atomic energy. This growing trade also
reflects the asymmetric European comparative advantage in
certain industrial goods. Though Western Europe is even more
dependent than the U.S. on imported petroleum, alternatives
exist to Russian natural gas. Solar energy has become much more
efficient in the past decades. 147
Wind turbines, too, are increasingly competitive. Though Germany
largely rejects atomic energy 148
for environmental reasons, France uses it extensively. 149
It is even possible, albeit expensive, to liquefy coal into
petroleum products. 150
Likewise, ethanol has been used successfully in Brazil as an
alternative automotive fuel. 151
Thus, the energy dependence on petroleum imports of countries
such as the United States or Germany is only relative. Russian
energy exports are driven not by geopolitical ambitions, but by
the practical fact of who *580
will pay the
Recall that, during the Cold War, the USSR did not participate
in the Arab oil embargos and continued to sell petroleum to the
This experience demonstrates that energy issues are not
determinative of foreign relations between the Russian
Federation and other states, but merely constrain outcomes
because of the fact that energy dependence is relative, not
absolute. While the importance of those economic relationships
is obvious, they are not the EU's primary legal concern. Nor are
these economic relationships the driving force of efforts toward
Russia's de jure economic integration into the EU or the WTO.
Meanwhile, de facto economic integration is, and will continue
to further deepen regardless of political issues because of
practical economic facts.
Mutual economic interests between the EU and
Russia are leading to de facto economic integration. Europe is
dependent on Russian primary resources and exchanges them for
investments into Russia's secondary and tertiary markets. 154
This creates conditions under which the rule of law is likely to
be increasingly respected because 1) Increasing wealth makes
rule breaking less frequent due to reduced desperation; 2)
Foreign investors do not wish to see their economic interests
nationalized and foster the rule of law through private
contractual mechanisms such as jurisdiction and binding
arbitration clauses; and 3) International commerce requires
legal stability so that contracts clear quickly and efficiently,
thus incentivizing the Russian judiciary to professionalism.
This extensive wealth creation in turn indirectly makes the real
protection of human rights much likelier in practice. I argue
that de jure economic integration will accelerate the inevitable
process of de facto economic integration and help contribute to
the formation of the rule of law in the former Soviet Republics,
at least in an exemplary fashion, though hopefully also through
formation of institutions and comparison of expertise.
What about human rights? Often people think
of the false dichotomy: "either the market or human rights." In
fact, trade leads to prosperity resulting in better human rights
Trade also *581
leads to interdependence, making war unprofitable.
Accordingly, the EU seeks to create an open integrated market
with the Russian Federation. Both partners desire increased
integration because the EU is Russia's main trading partner 156
and because the level of trade between the EU and Russia
continues to rapidly grow. 157
Key institutions created to channel
EU-Russia relations include the EU-Russia Partnership and
Cooperation Agreement ("PCA"), the four "common spaces" pursuant
to the PCA, and the Northern Dimension. Finally, to understand
how the EU relates to other former Soviet Republics that are not
EU Member States, we must also understand the EU's Eastern
To understand the relations between the EU
and the Russian Federation, we must understand the perceptions
of the EU toward the Russian Federation. The issues that cause
concern among the EU's leadership or its citizens with respect
to the Russian Federation are political, economic, and legal in
nature. This section briefly summarizes the EU's position on all
three issues to show how they, albeit discretely, interact to a
significant degree. Ultimately, this section illustrates how the
EU and Russia are moving closer to each other in the post-Soviet
Politically, the EU's concerns with respect
to the Russian Federation go to questions of the rule of law,
and human rights protection. 159
As to the rule of law, a Russian procedural
rule of law state enables construction of durable and
predictable legal institutions, rather than uncertain political
ones, with the aim of transforming zero-sum political
interactions into positive-sum economic interactions. Corruption
in the domestic governance of the Russian Federation is a
substantive problem for Russia's relationship with the EU
because it threatens the security of economic relations 160
and undermines protection of human rights.
The EU's desire to foster democracy, in
turn, is not merely an issue of the legitimacy of state power.
The existence of democratic institutions is also taken - to some
extent erroneously - as evidence or guarantor of the rule of
The EU's concern with democracy in *583
can be seen as a proxy for concerns about the rule of law. 163
However, equating democracy and the rule of law - and they do
correlate - means that failure to attain the former is seen,
wrongly, as necessarily, i.e. inevitably, impinging on
attainment of the latter, and this can prevent progress. The
rule of law is a precondition to stable business relations, in
turn generating prosperity 164
and leads to effective human rights protection. 165
Democratic legitimation can thus be obtained after the fact and
is not a necessary, indispensable precondition to improving
human well-being in real terms.
institutions and processes are needed for the economy; 166
the rule of law is also crucial for human rights protection. 167
Poverty resulting from legal uncertainty and corruption reduces
the real level of human rights protection and the legitimacy of
Russian democracy. 168
The relationships between the rule of law, a
productive economy (which results from an open market, free
trade, and the rule of law), democracy, and the attainment of
human rights are mutually reinforcing and intertwined in complex
ways They are, however, all positively associated: improvement
in one tends to encourage improvement in the others.
As mentioned earlier, the economic context
of Russian-EU trade can be summed up as "raw materials for
finished goods," a normal pattern of trade between developed and
developing countries. 169
In other words, the EU and the Russian Federation have an
economic relationship based on interdependence. Nevertheless,
trade has not, to present, coalesced into a binding
legal document or relationship 170
beyond the existing partnership and cooperation agreement.
The key to peace and prosperity in the war
21st century is economic interdependence rather than isolation.
Trading states have a strong incentive to renounce war against
each other. 171
For example, the United States, unlike the EU, does not trade
heavily with the Russian Federation. 172
Perhaps as a consequence, U.S. analysts seem to overemphasize
security aspects of the West's relationship with Russia. 173
The EU's legal concerns with Russia touch a
myriad of issues. This section covers only some of the most
salient ones. One concern is criminality, 174
which includes arms and drug trafficking. 175
Human migration is also a concern, with fears that Russian
workers might flood European labor markets. 176
however, are not particularly realistic. Most people are not
criminals, and most criminals are eventually caught. The EU's
eastward expansion did not lead to the flooding of Western
European labor markets with cheap Eastern labor. 177
Western European fears of a flood of Eastern European workers
have shown themselves to be unrealistic and overstated. 178
Like most modern industrialized countries, the Russian
Federation faces net labor inflows rather than outflows. 179
In fact, about ten million foreigners, mostly from China and
Northern Korea, work in the Russian*587
most of them illegally. 180
Thus, Russian-EU economic integration will not cause a flood of
Russian labor into the EU.
The aforementioned political, economic and
legal concerns return us to the question of the relationships
between the rule of law, democracy, the economic system, and
human rights - questions to which we now focus our attention.
The EU and the Russian Federation aim to
create an open integrated market. Just as the EU created a
single integrated market in order to generate prosperity and
interdependence to obviate and avert war, so too do the EU and
Russian Federation seek to create an integrated market. 181
This open and integrated market is to be attained via the
Partnership and Cooperation Agreement, which is the principal
legal instrument governing EU-Russia relations. 182
The EU also uses PCAs to relate to several other former Soviet
The PCAs seek, via functionalist incrementalism, to create over
time the same base found in the EU: a customs union featuring
the free movement of goods and capital, the right to establish
enterprises, and eventually to include the exchange of
professional services and workers. 184
The EU-Russia PCA forms the basis of the
four "common spaces" between the EU and the Russian Federation 185
resulting in an *588
effective institutional framework functioning
through the Permanent Partnership Council. 186
At the 2003 Petersburg Summit, the EU and Russia agreed to
strengthen cooperation by creating four "common spaces" in the
framework of the Partnership and Cooperation Agreement. 187
1. The Common
Economic Space, covering economic issues and the environment;
2. The Common Space
of Freedom, Security and Justice;
3. The Common Space
of External Security, including crisis management and
4. The Common Space
of Research and Education, including cultural aspects.
This approach parallels the "pillar"
structure that was one aspect of the EU prior to the Lisbon
Treaty. The Russian Federation wants to be treated as an equal
partner to the EU. Thus, a pillar approach, rather than the
European Neighborhood Policy (ENP), was established. The pillar
approach, however, in fact parallels the ENP approach: 188
The essence of the European Union is a
"single integrated market." The EU-Russian common economic
spaces seek to attain "an open integrated market." Formation of
the common economic space requires*589
approximation of legislation." 189
Legal harmonization is one means to the end of improving the
rule of law in Russia. Legal harmonization increases legal
certainty and reduces transaction costs as do the suppression of
tariff barriers, quantitative restrictions, and legal provisions
with similar effect.
2. Common Space on Freedom, Security and
This common space essentially governs police
Here, the EU addresses its concerns earlier mentioned of
The essence of this common space is cooperative and largely a
political, rather than legal, arrangement. Regarding travel
freedoms, travel to and from Russia is still generally subject
to visas. Second is the ongoing concern of unauthorized
migration. As to security, the central focuses are countering
the problems of crime and terrorism. As to justice, the primary
human rights issues involve press freedoms and overreactions
against terrorism by the Russian State, and secondarily is the
concern with ultra-nationalist violence. 192
3. Common Space on External Security
This common space parallels the former
common foreign and security policy (CFSP) pillar of the EU. 193
The goals here are non-proliferation of weapons of mass
destruction (especially nuclear weapons), anti-terrorism
collaboration, and EU-Russia security cooperation. Today, the EU
and the Russian Federation cooperate militarily in *590
certain peacekeeping missions in Africa pursuant to
the common space of external security.
4. Common Space of Research and Education,
Including Cultural Aspects
This common space seeks to foster
intellectual exchanges and encourage scientific and technical
innovation as a key contributor to economic growth. 194
From the Russian perspective, it involves developing the
Skolkovo research and industrial park, which is considered the
Russian Silicon Valley. 195
The Northern Dimension's objective is to
promote environmentally sustainable development throughout the
It is a regional political framework established to govern the
Baltic and Arctic regions. 197
Most notably, it focuses on environmental pollution and cleanup
issues that particularly concern radioactive waste 198
resulting from the decommissioning of Soviet-era nuclear
vessels, and related issues such as health and maritime transit.
The Northern Dimension's objective is to promote environmentally
sustainable development throughout the region. 200
The EU frames its relations with the
Ukraine, Moldova, and the Caucasian republics within its Eastern
Partnership framework. 201
The Joint Declaration of the Prague Eastern Partnership Summit
stated that "[t]he main goal of the Eastern Partnership is to
create the necessary conditions to accelerate political
association and further economic integration between the
European Union and interested partner countries." 202
To attain this goal of open borders and economic integration to
foster economic development and ultimately political stability,
the respect of human rights, and the rule of law, "[t]he
European Commission proposed a differentiated, progressive, and
benchmarked approach" to the new neighbors which was specified
in the European Neighborhood Policy (ENP) Strategy paper." 203
To promote this strategy, the EU has jointly mobilized aid and
trade as rewards for the attainment of the rule of law and human
rights protections to EU standards. 204
Both Russia and the EU have sometimes
perceived the Eastern Partnership as a point of contention
between the EU and the Russian Federation. Each side
inaccurately perceived the other as trying to carve out "spheres
of influence" to "freeze out" the other. 205
that had been hindering improved economic
integration, however, will be increasingly surmounted by
visionary leadership in the EU, Russia, and the other former
Soviet Republics. This is because of increased transnational
institutional awareness and improved mutual understanding. Most
importantly, it is also because of the mutual recognition that
EU cooperation with the formation of EU-modeled transnational
governance in the Russian Federation and the former Soviet
Republics is complementary and not conflicting.
The EU views Russia's accession to the WTO
as a means of achieving the end of increased prosperity through
freer trade, and the construction of legal institutions as the
formation of a Russian rule of law state. 206
The United States shares this view. 207
For its part, the Russian Federation wishes to join the WTO 208
and coordinates its accession with EurAsEC 209
and the EU 210
toward that goal. This paper *593
argues that free
trade leads to specialization and economies of scale, and that
the rule of law increases legal certainty and reduces
transaction costs. This in turn leads to increased prosperity
and the reduced likelihood of war. The EU and EurAsEc are aiming
to achieve the same goals of greater prosperity and political
security through free trade. Thus, the EU and EurAsEc are not in
conflict, but rather compliment each other. 211
The WTO extends the logic of free trade as the path to peace and
prosperity to the global level. 212
It is therefore desirable for the Russian Federation to join the
WTO, since joining will both reflect and increase acceptance by
the West of the Russian Federation's economic growth and future
potential. Political issues appear to have needlessly hindered
that economic process.
Following derailment of Russia's WTO
accession process because of its 2008 war with Georgia, the
Russian Federation is now back on track to conclude its
accession to the WTO Treaty. 213
The EU *594
and Russia appear to have worked out their
and are prepared to see the Russian Federation join the WTO. 215
Both the EU and the Russian Federation consider Russian
participation in the WTO as desirable since it creates new
economic opportunities on both sides of the ledger. 216
Russian adhesion to the WTO should not be impeded by Russia's
existing free trade with areas such as EurAsEC. 217
The bottom line: Russia and the EU need each other, and the
United States should foster that process as part of
globalization because it will lead to greater stability and
productivity for all.
This article was written while the author was a visiting professor
of EU Law at Pericles LL.M. Institute Moscow, Russia
(Pericles.ru). The author wishes to thank Pericles' Dean Marian
Dent and the Pericles faculty, staff, and students for the chance
to compare our ideas and experiences. Dr. Engle's articles are
available at http://papers.ssrn.com/author_id=879868.
For Natalia: Lex Nata.
This paper has argued that the Russian
Federation and other former Soviet Republics can apply EU
governance models in their relations with each other, and with
the EU. To make that case, this paper *595
objectives and institutional structure of the USSR, the EU, and
the CIS. The USSR and EU both tried to react to the problem of
war to obtain the best standard of living possible for their
people. Nevertheless, they pursued these objectives in radically
different manners. Recognizing that both the USSR and EU shared
common goals helps us to contextualize the USSR's collapse and
the CIS' failure. It also enables us to propose workable
governance models based on the EU's extensive historical
experiences in transnational governance. Such institutions and
rules can serve as a basis for the formation of the rule of law
in Eastern Europe that, in turn, will generate economic
prosperity, especially through trade liberalization. This will
consequently improve the real protection of basic human rights
in the region and make conflict less likely. Understanding the
mutually reinforcing character of a market economy, the rule of
law, and human rights protection enables all actors to pursue
the best rules and processes to obtain optimal outcomes for all.
Common teleologies, coupled with conflicting methods of
competing governance models contextualize historical
experiences: understanding these broad tendencies enables mutual
understanding, and enables us to build bridges instead of walls.
See generally Eric Allen Engle, Europe Deciphered: Ideas, Institutions
and Laws, 33 Fletcher F. World Aff. 63, 63-81 (2009), available at
(describing transnational governance within the EU).
Konstitutsiia SSSR (1936) [Konst. SSSR][USSR Constitution] art. 1,
translated in 1936 Constitution of the USSR, Bucknell University
(Sept. 7, 2011), http://www.departments.bucknell.edu/russian/const/36cons01.html
(stating [t]he Union of Soviet Socialist Republics is a socialist
state of workers and peasants.) [hereinafter USSR Constitution].
A. Nove, Is There a Ruling Class in the USSR?, 27 Soviet Studies
615, 615-16 (Oct. 1975).
Stephen White, Russia Goes Dry: Alcohol, State and Society 43
(Cambridge Univ. Press 1996).
See, e.g., Gail Warshofsky Lapidus, Women in Soviet Society:
Equality, Development, and Social Change 136 (Univ. of Cal. Press
USSR Constitution, supra note 3 (The Union of Soviet Socialist
Republics is a socialist state of the whole people, expressing the
will and interests of the workers, peasants, and intelligentsia,
the working people of all the nations and nationalities of the
Id. art. 28.
See generally Michael Voslensky, Nomenklatura: The Soviet Ruling
Class (Eric Mosbacher trans., Doubleday 1984).
Capitalism is a system of economic production predicated on the
private ownership of capital. It is distinct from state capitalism
wherein the state or public-private partnerships hold capital.
Many define capitalism as an industrial rather than a feudal mode
of production. The Tsarist economy was semi-feudal and
industrializing. Further, many of its economic projects involved
heavy state participation (state capitalism). However, the
ownership of capital in the hands of the financial elite
distinguishes Tsarist semi-feudal (state) capitalism from the
Soviet planned economy. Of course, strong state participation in
the economy, directly and indirectly, remains a mark of the
Russian economy. However, the post-Soviet era definitively
restored private ownership of capital and the role of the Orthodox
Church as the spiritual guides of the nation. Thus, I refer to
this process as capitalist restoration rather than capitalist
instauration. See, e.g., Steven Rosefielde, Comparative Economic
Systems: Culture, Wealth, and Power in the 21st Century 183
(Blackwell Publishers 2002).
Josef Stalin, The October Revolution and the Tactics of the
Russian Communists, Preface to Josef V. Stalin, Problems of
Leninism 117 (Charles Farrell trans., Foreign Languages Press,
Peking 1976), available at www.marxists.org/reference/archive/stalin/works/1924/12.htm.
Joseph G. Whelan & Michael J. Dixon, The Soviet Union in the
Third World: Threat to World Peace? 8 (Pergamom-Brassey's Int'l
Def. Publishers 1986).
See, e.g., Peter Grose, Operation Rollback: America's Secret War
Behind the Iron Curtain 210 (2000).
This policy was known as "The Brezhnev Doctrine." See generally
Matthew J. Ouimet, The Rise and Fall of the Brezhnev Doctrine in
Soviet Foreign Policy (The Univ. of N.C. Press 2003) (explaining
See generally David M. Trubek & Alvaro Santos, The New Law and
Economic Development: A Critical Appraisal (Cambridge Univ. Press
2006) (describing the exposition of the import substitution
industrialization model of development).
Eric Allen Engle, Marxism, Liberalism, And Feminism: Leftist Legal
Thought 33-35 (Serials Publ'ns 2010).
Ronald A. Francisco, The Foreign Economic Policy of the GDR and
the USSR: The End of Autarky?, in East Germany in Comparative
Perspective 190 (David Childs et al. eds., 1989).
Vladimir Sobell, Convertibility in the CMEA: The Long Road Ahead,
Radio Free Europe Research 4 (Nov. 5, 1987), www.osaarchivum.org/files/holdings/300/8/3/pdf/128-5-21.pdf.
USSR Constitution, supra note 3, at art 31.
José F. Alonso & Ralph J. Galliano, Russian Oil-For-Sugar
Barter Deals 1989-1999, in Cuba in Transition: Volume 9, Papers
and Proceedings of the Ninth Annual Meeting of the Association for
the Study of the Cuban Economy (ASCE) 335 (1999), available at www.ascecuba.org/publications/proceedings/volume9/pdfs/alonso.pdf.
See, e.g., Jim Leitzel, Russian Economic Reform 128 (Routledge
1995); see also Byung-Yeon Kim, Informal Economy Activities of
Soviet Households: Size and Dynamics, 31 J. Comp. Econ. 532,
Barbara Walker, Maximilian Voloshin and the Russian Literary
Circle: Culture and Survival in Revolutionary Times 174 (Ind.
Univ. Press 2005).
Marie Lavigne, International Political Economy and Socialism 175
(David Lambert trans., Cambridge Univ. Press 1985). See generally
Adam Zwass, The Council for Mutual Economic Assistance: The Thorny
Path from Political to Economic Integration (M.E. Sharpe 1989).
COMECON (also known as the CMEA) was the USSR's effort to form a
common market within the Soviet bloc. See, e.g., J. J. Brine,
COMECON: The Rise and Fall of an International Socialist
Organization xvi (1992).
Intellectual property remains weakly protected in the Russian
Federation and the USSR successor states. "[C]ounterfeiting and
piracy activity in Russia remains on a high level. The lack of
effective enforcement affects Russian markets on a large scale. To
be fully integrated in the world trading system, to continue to
attract foreign investment and to prevent major losses for
right-holders, Russia has to implement all its international
obligations, in particular the ones related to Intellectual
Property Rights and their Enforcement." Directorate-General for
Trade, Intellectual Property: Dialogues, European Comm'n (Aug. 22,
See, e.g., Shane Hart, Computing in the Former Soviet Union and
Eastern Europe, 5 Crossroads 23, 23-25 (Mar. 1999).
U.S. Dept. of State, Background Note: Russia (Aug. 28, 2011), http://www.state.gov/r/pa/ei/bgn/3183.htm.
See generally Eric Allen Engle, A Social-Market Economy for Rapid
Sustainable Development, 2 J.L. Dev. & Pol. 42, 42-62 (2009),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424695
(explaining the ISI model in the context of Soviet development
Malcome Byrne & Vojtech Mastny, The Warsaw Pact, Gone with a
Whimper, N.Y. Times, (Mar. 14, 2005), www.nytimes.com/2005/05/13/opinion/13iht-edbyrne.html.
See Brine, supra note 24.
Engle, A Social-Market, supra note 29, at 43.
Recall that tragedy, strictly speaking, means the inevitable
downfall of a hero (or anti-hero) due to his excess of virtue. In
the Soviet Union "defense of the motherland" taken to its excess
became paranoia, crippling production and dooming the system to
(inevitable) collapse. However, the West did not win the cold war;
rather, the Soviets lost it.
Russian Military Budget, GlobalSecurity.org (Aug. 25, 2011), www.globalsecurity.org/military/world/russia/mo-budget.htm
(By the mid-1980s, the Soviet Union devoted between 15 and 17
percent of its annual gross national product to military spending,
... Until the early 1980s, Soviet defense expenditures rose
between 4 and 7 percent per year.); see also Anders Ã…slund,
Building Capitalism: the Transformation of the Former Soviet Bloc
Kremlinology often focuses on budget questions. See, e.g., Bill
Keller, Soviet Budget Deficits Are Disclosed By Kremlin; Wasteful
Subsidies Blamed, N.Y. Times, (Oct. 28, 1988), www.nytimes.com/1988/10/28/world/big-soviet-budget-deficits-are-disclosed-by-kremlin-wasteful-subsidies-blamed.html;
see also Timothy Sosnovy, The Soviet Military Budget, 42 Foreign
Aff. 487, 487-94 (1964), available at www.foreignaffairs.com/articles/23604/timothy-sosnovy/the-soviet-military-budget.
See, e.g., 31 V. I. Lenin, Collected Works 516 (1966) (stating
"Communism is Soviet power plus the electrification of the whole
country." That is, the Soviet system justified itself as the
fastest route to development, which it was for at least one
generation. However, ultimately, the system lost legitimacy as it
became clear and clearer that the west produced better quality
consumer goods and in greater numbers).
See Alex F. Dowlah & John E. Elliott, The Life and Times of
Soviet Socialism 182 (1997).
Engle, Europe Deciphered, supra note 2, at 65.
See, e.g., Euro-Politics: Institutions and Policymaking in the
"New" European Community 260 (Alberta M. Sbragia ed., 1992).
Eric Allen Engle, The EU Means Business: A Survey of Legal Challenges
and Opportunities in the New Europe, 4 DePaul Bus. & Com. L.J.
351, 352-53 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020467.
Treaty Establishing the European Economic Community, Mar. 25,
1957, 298 U.N.T.S. 11, available at http://ec.europa.eu/economy_finance/emu_history/documents/treaties/rometreaty2.pdf
[hereinafter Treaty of Rome]. The Treaty of Rome was succeeded by
the Treaty of Amsterdam (Maastricht) and then the Treaty of Lisbon
which reiterated those goals: "The Union's aim is to promote
peace, its values and the well-being of its peoples." Treaty of
Lisbon Amending the Treaty on European Union and the Treaty
establishing the European Community art.2, Dec. 13, 2007, 2007
O.J. (C 306) 1, available at europa.eu/lisbon_treaty/index_en.htm
[hereinafter Treaty of Lisbon].
See European Union, Treaty Establishing the European Coal and
Steel Community (Aug. 29, 2011), http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_ecsc_en.htm
(explaining that the ECSCE merged into the E.U.).
See generally The European Atomic Energy Community (EURATOM),
European Comm'n (Aug. 25, 2011), ec.europa.eu/energy/nuclear/euratom/euratom_en.htm
(indicating that the EURATOM's Atomic Energy Commission (AEC)
maintains a separate legal existence as an international
Namely, the unity of trade and territory under the Westphalian
state system led to war because any state which wished to expand
its economy also had to expand its territory. See, e.g., Eric
Engle, Europe Deciphered, supra note 2, at 63.
See generally Eric
Engle, I Am My Own Worst Enemy: Problems and Possibilities of
European Foreign Policy Vis-a-Vis the United States,18 St.
Thomas L. Rev. 737, 737-38 (2006).
See, e.g., Eric
Engle, Theseus's Ship of State: Confederated Europa between the
Scylla of Mere Alliance and the Charybdis of Unitary Federalism,
8 Fla. Coastal L. Rev. 27, 28-30 (2006).
See Eric Allen Engle, The Transformation of the International Legal
System: The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev.
23, 23-25 (2004).
See Michael Roberts & Peter Wehrheim, Regional Trade
Agreements and WTO Accession of CIS Countries, 36 Intereconomics
315, 315 (2001), available at http://www.springerlink.com/content/41642065037ll583/
(Shortly after the collapse of the Soviet Union most of its
successor states, with the exception of the Baltic States, joined
the Commonwealth of Independent States (CIS). At the same time
many CIS countries opened up their trade regimes by dismantling
various trade restrictions, state trading monopolies, multiple
exchange rate regimes as well as formal tariff barriers. However,
in the course of the 1990s pressure for the protection of domestic
industries has increased. Import tariffs on sensitive imports,
such as refined sugar, have started to pop up. By far the most
serious barriers to trade and the ones most frequently used are
non-tariff barriers. The ever more complex and constantly changing
trade regimes of many CIS countries have also opened the door for
corruption and smuggling.).
See Theodore P. Gerber, Membership Benefits or Selection Effects?
Why Former Communist Party Members Do Better in Post-Soviet
Russia, 29 Social Science Research 25, 47 (2000) ("It seems likely
that such individual attributes as ambition, career-mindedness, a
willingness to submit to organizational discipline, a penchant for
organizational and administrative work, and perhaps what might be
termed opportunism" may characterize Party members. These
attributes are just as readily translated into material advantage
in market institutional contexts as in the institutional context
of the Soviet Union."); Frederico Varese, The Transition to the
Market and Corruption in Post-socialist Russia, 45 Poli. Studies
579, 594 (1997) ("It is harder to secure property right in the new
market economy because the number of criminal opportunities is
immense...People have had novel opportunities to cooperate and, at
the same time, to defect, to cheat, and to commit crimes.").
See Stephan K. Batalden & Sandra L. Batalden, The Newly
Independent States of Eurasia: Handbook of Former Soviet Republics
18 (1997) (considering factional conflict within the Russian
Soviet Federative Socialist Republic at the outset of the CIS);
see also Scott L. Greer, Questioning Geopolitics: Political
Projects in a Changing World-System 216-17 (2000) (noting the
factionalism prevalent within the nomenklatura); Boris Grushin,
The Emergence of a New Elite: Harbinger of the Future or Vestige
of the Past, in The New Elite in Post-Communist Eastern Europe 53,
57 (Vladimir Shlapentokh et al. eds., 1999) (discussing the lack
of vision prevalent in CIS elites).
See Roberts & Wehrheim, supra note 52, at 323 (Ten years after
the break up of the USSR, CIS countries are still struggling to
find the appropriate format to govern their mutual trade
relations. At present a patchwork of half-implemented bilateral
agreements and a series of paper framework agreements govern
intra-CIS trade relations. Most of the RTAs among CIS member
states remain de jure agreements. If one were to characterise this
institutional framework, one might term it managed
See Commonwealth of Independent States (CIS), GlobalSecurity.org
(Aug. 24, 2011), http://www.globalsecurity.org/military/world/int/cis.htm.
See Rilka Dragneva & Joop de Kort, Russia's Role in Fostering
the CIS Trade Regime, Memorandum from the Dept. of Econ. Research
of Leiden University 9 (Mar. 2006), available at http://ssrn.com/abstract=1440809
("The CIS was burdened with ambivalent goals. On the one hand, it
aimed to assist the newly independent countries to gain economic
independence, while on the other hand it was the intended
institution to bring the newly independent states together in an
economic union. The ambivalent character of the CIS, and the
increasing self-consciousness, both politically and economically,
of the newly independent states, resulted in numerous bilateral
and multilateral agreements at the same time.").
See Margot Light, International Relations of Russia and the
Commonwealth of Independent States, in 1999 Eastern Europe and the
Commonwealth of Independent States 21 (4th ed.1999).
See Philip Hanson, The Economics of the Former USSR: An Overview,
in 1999 Eastern Europe and the Commonwealth of Independent States
74, 79 (4th ed. 1998).
See Leonard Orland, Perspectives on Soviet Economic Crime, in
Soviet Law and Economy 169, 177-78 (Olimpiad S. Ioffe & Mark
W. Janis eds.) (1987) (outlining what defined a Soviet-era
economic criminal). See generally Charles A. Schwartz, Economic
Crime in the USSR: A Comparison of the Khrushchev and Brezhnev
Eras, 30 Int'l & Comp. L.Q. 281, 295 (1981) (discussing the
scaling back of the rigidity of economic rules allowing more
Nonetheless, its failure was remarkable in that it contributed to
the peaceful transition from one-party dictatorships to
independent republics with varying degrees of democratic
See Stephen Kux, From the USSR to the Commonwealth of Independent
States: Confederation or Civilized Divorce, in Federalizing
Europe? 325, 346-347 (Joachim Jens Hesse &Vincent Wright eds.
"What can be observed in the CIS is that economic cooperation
takes the form of overlapping bilateral and multilateral
agreements of very distinct legal quality. From an economic point
of view it does not make sense that countries that have concluded
a multilateral free trade agreement, as the CIS countries did in
1994, an agreement that they amended in 1999, subsequently
conclude bilateral free trade agreements with their partners as
well. It creates overlap, increases transaction costs, and
obfuscates the status of multilateral and bilateral agreements."
See Dragneva & de Kort, supra note 57, at 1.
Id. ("What can be observed in the CIS is that economic cooperation
takes the form of overlapping bilateral and multilateral
agreements of very distinct legal quality. From an economic point
of view it does not make sense that countries that have concluded
a multilateral free trade agreement, as the CIS countries did in
1994, an agreement that they amended in 1999, subsequently
conclude bilateral free trade agreements with their partners as
well. It creates overlap, increases transaction costs, and
obfuscates the status of multilateral and bilateral agreements.").
See id. (The agreements that are concluded often are partial and
selective, while their ratification and implementation also is a
See id. at 3 (The CIS trade regime can be described as a symbiosis
between bilateral and multilateral regimes, both of which can be
described as weak regimes. Bilateral agreements cover some key
free trade rules, such as tariffs, but remain minimal and quite
basic. Non-tariff barriers, for instance, are generally left out,
as are liberalisation of services or intellectual property to name
a few issues that have become important in international trade
agreements. Disputes are generally resolved through
The central concept to the foundation of the European Union as an
economic area are the four freedoms (basic rights): the free
movement of goods, workers, capital and of enterprises among the
Member States. See, e.g., Engle, Europe Deciphered, supra note 2.
Knud Erik Jorgensen, The Social Construction of the Acquis
Communautaire: A Cornerstone of the European Edifice, 3 European
Integration online Papers 1, 3, 10-12 (Apr. 29, 1999), http://eiop.or.at/eiop/texte/1999-005a.htm
(using the Nietzsche-Foucauldian genealogical method to explore
various definitions of acquis communautaire); Acquis
Communautaire, BBC News (Apr. 30, 2001), http://news.bbc.co.uk/1/hi/in_depth/europe/euro-glossary/1216329.stm.
Dragneva & de Kort, supra note 57, at 2 ([T]he CIS presents a
mix of, often overlapping, bilateral and multilateral agreements.
The picture gets even more complicated as bilateral and
multilateral agreements often differ in the strength of commitment
they require from the signatories. Bilateral agreements rarely
envision a mechanism for resolving disputes between its parties,
relying on negotiations to do so. Multilateral agreements on the
other hand often do attempt to strengthen the bindingness of the
commitments undertaken. In 1993, the Treaty of the Economic Union
even went as far as to strengthen the role of the Economic Court,
by requiring that if the Economic Court recognises that [...] a
member state has not fulfilled its obligation ensuing from the
Treaty, this state is obliged to take measures connected with the
implementation of the decision of the Economic Court". A year
later, in 1994, a Free Trade Agreement (FTA) was concluded which
undermines' the position of the Economic Court...).
About EurAsEC, (Aug.
24, 2011), http://www.evrazes.com/en/about
([A] customs union within the EurAsEC framework, with the Republic
of Belarus, the Republic of Kazakhstan and the Russian Federation
as initial members. Other EurAsEC member states will join the
customs union when their economies are ready to take this step.).
Roberts & Wehrheim, supra note 52, at 321 (Russia and two
other CIS countries - Kazakhstan and Belarus - established a
customs union (CU) in 1995. The Kyrgyz Republic joined in March
1996 and Tajikistan in 1999. The text of the customs provided for
discontinuation of all trade tariffs between member countries,
tariffs for trade with other countries were adjusted to one level,
[i.e., harmonized into a common external tariff] and the system of
privileges was unified. In addition, certain measures were taken
to unify tax policy (tax rates and application of indirect taxes).
The agreements on the customs union called for coordination of
customs, excise, and value-added dues.).
See, e.g., Engle, Europe Deciphered, supra note 2, at 75.
See Jorgensen, supra note 68, at 3.
Clemens L. J. Siermann, Politics, Institutions, and the Economic
Performance of Nations 131 (Edward Elgar Publ'g 1998).
Nat'l Intelligence Council, Conference Report, Russia in the
International System (June 1, 2001), http://www.dni.gov/nic/confreports_russiainter.html
(Living in the post-Cold War era has lent some air of stability--a
peace dividend--to life in Russia. This may have a positive effect
on the development of the economy and democratic institutions.").
Eleanor Bindman, Russia's Response to the EU's Human Rights
Policy, OpenDemocracy.net (Oct. 1, 2010), http://www.opendemocracy.net/od-russia/eleanor-bindman/russiaSâ€°rs-response-to-euSâ€°rs-human-rights-policy
("[T]he election of President Medvedev in 2008 has led to gradual
changes in the previously more hard-line policy regarding human
rights in EU-Russia relations. The new foreign policy doctrine
appears to emphasise less confrontational and more pragmatic
relations with partners such as the EU with the aim of promoting
Russia's modernisation."); Human Rights Watch, 2011 World Report
456, 460, 462 (2011), available at http://www.hrw.org/en/world-report-2011/russia
("In 2010 Russia demonstrated increased openness to international
cooperation on human rights ...
In January 2010- after years of
delay - Russia ratified Protocol 14 to the European Convention
for Human Rights, becoming the last Council of Europe (CoE)
member state to do so. Protocol 14 streamlines the case review
process at the ECtHR
and strengthens the enforcement mechanisms of the CoE's
Committee of Ministers....
In 2010 Russia showed some
improved cooperation on human rights, but Russia's international
partners did not do enough to encourage human rights reform.").
Elena Klitsounova, Promoting Human Rights in Russia by Supporting
NGOs: How to Improve EU Strategies 19 (Ctr. for European Policies
Studies, Working Document, No. 19, Apr. 2008), available at www.ceps.be/system/files/book/1637.pdf.
See, e.g., U.N. Econ. & Soc. Comm'n for W. Asia, Assessment of
Trade Policy Trends and Implications for the Economic Performance
of the ESCWA Region, at 3, U.N.
Doc E/ESCWA/EDGD/2009/1 (Apr. 14, 2009), available at http://www.escwa.un.org/information/publications/edit/upload/edgd-09-1-e.pdf.
Siermann, supra note 74, at 131.
Sanford J. Ungar & Peter Vale, South Africa: Why Constructive
Engagement Failed, 64 Foreign Aff. 234 (Winter 1985/86) (defining
constructive engagement), available at http://www.foreignaffairs.com/articles/40525/sanford-j-ungar-and-peter-vale/south-africa-why-constructive-engagement-failed.
See, e.g, Paul Craig & Grainne De Burca, EU Law: Text, Cases,
and Materials 3-6 (2008).
Stefan Füle, Address at Columbia University (Aug. 25, 2011), http://www.europa-eu-un.org/articles/fr/article_10447_fr.htm.
Zbigniew Brzezinski, Living With Russia, 61 The National Interest
5, 5 (Fall 2000) ("Both Russia and China may be susceptible to a
strategy aimed at their inclusion in cooperative international
structures. To that end, two Eurasian power triangles must be
steadily managed and, over time, more directly connected: one
involving the United States, the European Union and Russia; and
the other involving the United States, Japan and China. For that
linkage to be effective, the constructive engagement of Russia is
essential.); Jonathan M. Winer & Phil Williams, Russian Crime
and Corruption in an Era of Globalization: Implications for the
United States, in Russia's Uncertain Future, S. Prt. 107-5, at 97,
121 (Joint Comm. Print 2001), available at http://econ.la.psu.edu/~
bickes/jecrussia.pdf (Following the collapse of the Soviet Union
and the ascendancy of Boris Yeltsin, U.S. policy could be defined
in brief as one of constructive engagement, in which the United
States aggressively and assiduously worked to secure Russian
integration with the world economy, Russian political, economic
and legal reform, and democratization.); see Graham Timmins,
German-Russian Bilateral Relations and EU Policy on Russia:
Reconciling the Two-Level Game?, in Russia and Europe in the
Twenty-First Century: An Uneasy Partnership 169-70 (Jackie Gower
& Graham Timmins eds., 2009) (describing diplomatic tensions
between a post-Putin CIS and the European Union).
See Siermann, supra 74, at 131; Fuele, supra note 82.
Karl Marx & Friedrich Engels, The Communist Manifesto 11 (The
Echo Library 2009) (1888).
See, e.g., Damian Chalmers et al., European Union Law: Cases and
Materials 7 (Cambridge Univ. Press 2010).
See generally Peter Buerger, Theory of the Avant-Garde (Michael
Shaw trans., Univ. of Minn. Press 1984).
See Vladimir Ilyich Lenin, Imperialism, the Highest Stage of
Capitalism (1916), reprinted in 1 Lenin: Selected Works 667
(Progress Publishers 1963), available at www.marxists.org/archive/lenin/works/1916/imp-hsc/ch09.htm.
See 1 Karl Marx, Capital (Samuel Moore & Edward Aveling
trans., Frederick Engles ed., 1867), available at www.marxists.org/archive/marx/works/1867-c1/;
2 Karl Marx, Capital (I. Lasker trans., Progress Publisher 1956)
(1885), available at www.marxists.org/archive/marx/works/1885-c2/index.htm;
3 Karl Marx, Capital (Tim Delaney et al. trans., 1999) (1894),
available at www.marxists.org/archive/marx/works/download/pdf/Capital-Volume-III.pdf;
see also Vladimir Ilyich Lenin, State and Revolution (1917), in 25
Collected Works 381-492, available at marxists.org/archive/lenin/works/1917/staterev/index.htm;
Marx & Engels, supra note 85, at ch. 2.
Friedrich Engels & Karl Marx, Socialism: Utopian and
Scientific 68 (Andrew Moore ed., Edward Aveling trans., Mondial
See, e.g., USSR Constitution, supra note 3, at art. 4 ("The
socialist system of economy and the socialist ownership of the
means and instruments of production firmly established as a result
of the abolition of the capitalist system of economy, the
abrogation of private ownership of the means and instruments of
production and the abolition of the exploitation of man by man,
constitute' the economic foundation of the U.S.S.R. 1936.").
See, e.g., Treaty of Rome, supra note 45, at pmbl.
White, supra note 5, at 43.
See generally Robert Whitesell, Why Does the Soviet Economy Appear
to be Allocatively Efficient?, 42 Soviet Studies 259, 259-268
Zigurds L. Zile, Consumer Product Quality in Soviet Law: The Tried
and the Changing, in 2 Soviet Law After Stalin: Social Engineering
Through Law 202 (Donald D. Barry ed., 1978) (discussing the rising
quality of Soviet goods between 1960s and 1970s).
See Engle, A Social-Market, supra note 29, at 42.
Engle, A Social-Market, supra note 29.
See generally Ludwig von Mises, Introduction to Ludwig von Mises,
Economic Calculation in the Socialist Commonwealth 2, 2-3 (S.
Alder trans., 1920), available at http://mises.org/econcalc.asp.
I mean liberalism in the sense intended by Aristotle and Locke; an
open democratic form of governance in which people are free to
enter into economic transactions as they themselves choose. See
John Locke, Second Treatise of Civil Government (1690), available
See, e.g., Milton Friedman, Capitalism and Freedom (Univ. of
Chicago Press 1962). While I critique certain points of Friedman,
Friedman's views on monetary policy seem entirely correct to me
and replaced the failed theory of John Maynard Keynes's "General
Theory of Employment, Interest and Money." Compare Friedman,
supra, with Eric Allen Engle, Lex Naturalis, Ius Naturalis 220-428
(Donna M. Lyons & Jacob D. Zillhardt eds., 2010), available at
and John Maynard Keynes, General Theory of Employment, Interest
and Money (1936), available at www.marxists.org/reference/subject/economics/keynes/general-theory/.
World Bank, Belarus: Prices, Markets, and Enterprise Reform 1
See, e.g., id.
Privatization: Lessons from Russia and China - Employment Sector,
Int'l Labor Org. (Joseph Prokopenko ed.), available at www.ilo.org/public/english/employment/ent/papers/emd24.htm
(By the beginning of 1997 the Russian economy had perhaps reached
its lowest point. GNP fell by 6 percent in 1996, compounding a
decline of more than 50 per cent since 1991 (although the shadow
economy has expanded). Many enterprises are on the brink of
collapse; the proportion of loss-making enterprises in the main
economic sectors is approximately 43 per cent.).
See, e.g., D. A. Barr & M. G. Field, The Current State of
Health Care in the Former Soviet Union: Implications for Health
Care Policy and Reform, 86 Am. J. Pub. Health 307, 308 (1996).
See, e.g., Amazu A. Asouza, International Commercial Arbitration
and African States: Practice, Participation and Institutional
Development 42 (2001); Henry J. Steiner, in Do Human Rights
Require a Particular Form of Democracy?, in Democracy, the Rule of
Law and Islam 193, 202-204 (Eugene Cotran & Adel Omar Sherif
eds., 1999); Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L.
Rev. 1 (2008).
See, e.g., Thomas Carothers, The Rule of Law Revival, 77 Foreign
Aff. 95, 96-97 (1998).
Eva Etzioni Halevy, Fragile Democracy: The Use and Abuse of Power
in Western Societies 16 (1989); David Held, Models of Democracy
164 (2006); Joseph A. Schumpeter, Capitalism, Socialism, and
Democracy 269-83 (1942); see Harry Eckstein et al., Can Democracy
Take Root in Post-Soviet Russia?: Explorations in State Society
Relations 134 (1998) (explaining government institutions in the
context of Russia).
See Charles Wright Mills & Alan Wolfe, The Power Elite 3-4
Anne Peters argues, as does this paper, for legitimation ex post
i.e. legitimation by success. See Anne Peters, Elemente einer
Theorie der Verfassung Europas 517, 580 (2001); see also Andrew
Arato, Dilemmas Arising from the Power to Create Constitutions in
Eastern Europe, Constitutionalism, Identity, Difference, and
Legitimacy: Theoretical Perspectives 165, 186 (Michel Rosenfeld
ed., 1994); Alan Keenan, Democracy In Question: Democratic
Openness in a Time of Political Closure 28 (2003).
See, e.g., Richard Bellamy & Dario Castiglione,
Constitutionalism and Democracy - Political Theory and the
American Constitution, 27 Brit. J. Pol. Sci. 595 (1997).
David Silverstein & Daniel C. Hohler, A Rule-Of-Law Metric for
Quantifying and Assessing the Changing Legal Environment of
Business, 47 Am. Bus. L.J. 795, 818-19 (2010) ("For more than half
a century, a prevailing view motivating Western foreign aid
approaches was that rule of law correlated in some positive and
significant way with economic development and an attractive
business climate for foreign investment .... More recent
literature in this field, however, has led to growing skepticism
about the validity and general application of the assumptions that
served as the touchstones for Western development initiatives.
Debate continues, for example, over whether a causal relationship
between rule of law and a successful market economy exists and, if
so, in which direction that causation runs, whether these
variables may be mutually reinforcing, what key elements
characterize a rule-of-law system, and how does one explain away
the many anomalies.")
See, e.g., Edgardo Buscaglia, U.N. Office for Drug Control &
Crime Prevention [UNODCCP], Ctr. for Int'l Crime Prevention
[CICP], Judicial Corruption in Developing Countries: Its Causes
and Economic Consequences 6-7, U.N.
Doc. CICP-14 (Mar. 2001), available at www.unodc.org/pdf/crime/gpacpublications/cicp14.pdf.
Frank Richardson, Pro Bono Work Has Burgeoned Over the Past Few
Years Both Geographically and in Its Legal Range, 64 Int'l B. News
26 (Aug. 2010) (explaining the positive correlation between rule
of law and economic performance; negative correlation between
corruption and economic performance).
There is a plethora of literature, much of it contradictory, on
the relationships among the rule of law, prosperity, democracy,
and human rights. See, e.g., Susan D. Franck, Judicial
Independence and Legal Infrastructure: Essential Partners for
Economic Development: Foreign Direct Investment, Investment Treaty
Arbitration, and Rule of Law, 19 Pac. McGeorge Global Bus. &
Div. L.J. 337, 342-43 (2007); Stephan Haggard et al., The Rule of
Law and Economic Development, 11 Ann. Rev. Pol. Sci. 205 (2008);
James R. Jones, Open Markets, Competitive Democracy, and
Transparent and Reliable Legal Systems: The Three Legs of
Development, 83 Chi.-Kent L. Rev. 25 (2008); Randall Peerenboom.
Social Networks, Rule of Law and Economic Growth in China: The
Elusive Pursuit of the Right Combination of Private and Public
Ordering, 31Global Econ. Rev. 3 (2002); John Hewko, Foreign Direct
Investment: Does the Rule of Law Matter? (Carnegie Endowment for
Int'l Peace, Democracy and Rule of Law Project, Working Paper No.
26, 2002), available at carnegieendowment.org/files/wp26.pdf.
See generally G. A. Cohen, Base and Superstructure: A Reply to
Hugh Collins, 9 Oxford J. Legal Stud. 95 (1989).
The dialectical relationship between the material forces of
production (base) and the ideological relations of productions
(superstructure) is a basic tenet of Marxism. See Karl Marx,
Preface to A Contribution to the Critique of Political Economy (R.
Rojas trans., Progress Publishers 1977) (1859), available at http://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.
See, e.g., Karl Marx, Afterword to the Second German Edition,
Capital (1873); Marx, Capital, supra note 87, at ch. 24 Â§ 1; see
also Friedrich Engels, Dialectics of Nature (Andy Bluden et al.
trans., 2006) (1883), available at http://www.marxists.org/archive/marx/works/1883/don/index.htm.
See generally Engle, Marxism, supra note 16.
See Pamela K. Star, The Two Politics of NAFTA in Mexico, 16 L.
& Bus. Rev. Am. 839, 841 (2010) (discussing how trade
liberalization, economic performance, democratization are
correlated positively); see, e.g., North American Free Trade
Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993).
See, e.g., Jean Ziegler, Special Rapporteur on the Right to Food,
Economic, Social and Cultural Rights: The Right to Food, U.N. Doc.
E/CN.4/2001/53 (Feb. 7, 2001), available at www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f45ea4df67ecca98c1256a0300340453?
Opendocument (indicating that a well-functioning economy
facilitates the furtherance of the right to eat).
As a theory of sociology, functionalism analogizes society to an
organism, with each member having particular functions, like
organs of a body. See, e.g., Kent McClelland, Functionalism,
Grinnell College (Oct. 15, 2011, 12:15 PM), http://web.grinnell.edu/courses/soc/s00/soc111-01/IntroTheories/Functionalism.html.
Steve Charnovitz, Triangulating The World Trade Organization, 96
Am. J. Int'l L. 28, 48 (2002) ("The core idea of functionalism is
that international governance should be organized according to
tasks' and functional lines."").
Bartram S. Brown, The United States and the Politicization of the
World Bank: Issues of International Law and Policy 14-15 (1992)
("Functionalism is a theory of international organization which
holds that a world community can best be achieved not by attempts
at the immediate political union of states, but by the creation of
non-political international agencies dealing with specific
economic, social, technical, or humanitarian functions.
Functionalists assume that economic, social and technical problems
can be separated from political problems and insulated from
Juliet Lodge, Preface: The Challenge of the Future, in The
European Community and the Challenge of the Future, at xix (Juliet
Lodge ed., 2d ed. 1993) ("The logic behind the approach is to
prevent war not negatively - by keeping states apart - but
positively by engaging them in cooperative ventures ... to
establish functionally specific agencies, initially in what were
then seen as non-contentious areas like welfare. These were to
transcend national boundaries and be managed by rational
technocrats (not swung by the vagaries of political ideology and
power-hungry political parties) owing their allegiance to a
functionally specific organization not to a given nation state ...
Their tasks will cover those areas of the economy essential to
running military machines. Governments, deprived of control over
those areas, will be unable to pursue war and will eventually be
left to manage residual areas not covered by functional bodies
Sabino Cassese, European Administrative Proceedings, 68 L. &
Contemp. Probs. 21, 23 (2004) ("functionalism ... has enabled the
incremental, progressive development of the European Union").
Lodge, supra note 126 ("Functionalism starts from the premise that
by promoting functional cooperation among states it may be
possible to deter them from settling disputes over competition for
scarce resources aggressively.").
There is vast literature on functionalism. See, e.g., Ernst B.
Haas, The Uniting of Europe: Political, Social, and Economic
Forces, 1950-57 (Stanford Univ. Press 2004).
Hans J. Morgenthau, Positivism, Functionalism, and International
Law, 34 Am. J. Int'l L. 260, 283 (1940) ("Grandiose legalistic
schemes purporting to solve the ills of the world have replaced
the less spectacular, painstaking search for the actual laws and
the facts underlying them.").
See id. at 284.
Ernest A. Young, The Trouble With Global Constitutionalism, 38
Tex. Int'l L.J. 527, 540 n.86 (2003) ("The neo-functionalist
theory that has driven much of European integration, for example,
posits that supranational institutions formed for fairly narrow
purposes will attract political support over time and will thereby
be able to expand their functions.") (citing Ben Rosamond,
Theories of European Integration 51-52 (2000)).
Lodge, supra note 126 ("Neofunctionalists have a common starting
point with functionalists in their attachment to ... learning
processes, allegedly apolitical, technocratic socio-economic
welfare functions, consensus-building and functional specificity,
neofunctionalists adopt a pluralist perspective. They argue that
competitive economic and political elites mediate in the process
and not only become involved in it but become key players....
Neofunctional integration sees integration as a process based on
spillover from one initially non-controversial, technical sector
to other sectors of possibly greater political salience, involving
a gradual reduction in the power of national government and a
commensurate increase in the ability of the centre to deal with
sensitive, politically charged issues.").
Jackie Gower, EC Relations with Central and Eastern Europe, in The
European Community and the Challenge of the Future 286 (Juliet
Lodge ed., St. Martin's Press, 2d ed. 1993).
See Eric Allen Engle, Universal Human Rights: A Generational
History, 12 Ann. Surv. Int'l & Comp. L. 219, 236 n.120 (2006),
available at http://ssrn.com/abstract=1020464
(explaining the hierarchical evolution of human rights); see also
Engle, Lex Naturalis, supra note 102 (discussing the logical
hierarchization of human rights).
See, e.g., Jim Ife, Human Rights and Social Work: Towards
Rights-Based Practice 83 (2001).
Universal Declaration of Human Rights, art. 25
P 1, G.A. Res. 217 (III) A, U.N.
Doc. A/RES/217(III) (Dec. 10, 1948), available at www.un.org/en/documents/udhr/
("Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including
food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.").
Amitava Mukherjee, Hunger: Theory, Perspectives and Reality 83-84
See e.g., Babu Joseph, Human Rights and Poverty: A Philosophical
Perspective, in 2 Human Rights and Poverty in India: Theoretical
Issues and Empirical Evidences 24 (S. N. Chaudhary ed., 2005).
See, e.g., Paul C. Adams, Atlantic Reverberations: French
Representations of an American Presidential Election 50 (2007)
(discussing how whole forests have been felled to rehash the
famous issue of democratic deficit); see also Jeffrey J. Anderson,
Introduction to Regional Integration and Democracy: Expanding on
the European Experience 1 (Jeffrey J. Anderson ed., 1999).
C. G. H., From Lisbon to Vladivostok': Putin Envisions a Russia-EU
Free Trade Zone, Spiegel Online Int'l (Nov. 25, 2010, 11:44 AM), www.spiegel.de/international/europe/0,1518,731109,00.html.
Valentina Pop, Putin Proposes Russia-EU Union, EU Observer (Nov.
26, 2010, 09:29 AM), http://euobserver.com/19/31361.
Joseph Schumpeter, The Theory of Economic Development 154 (Redvers
Opie trans., 1934).
European Parliament Resolution of 17 June 2010 on the Conclusions
of the EU/Russia Summit (31 May - 1 June 2010), 2011
O.J. (C 236 E/103) para. 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:236E:0101:0104:EN:PDF
[hereinafter EU/Russia Summit].
See, e.g., Berlusconi Wants EU-Russia Visa Tegime to be Scrapped,
Rianovosti (Apr. 18, 2008, 7:25 PM), en.rian.ru/world/20080418/105424007.html.
Balance Human Rights & Energy with Russia Says Knut
Fleckenstein MEP, European Parliament (June 23, 2010, 2:52 PM), www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference=20100618STO76329
(The European Union's relationship with Russia is one of its most
important and most complicated. Strong trade and energy ties bind
both although many in the EU are concerned about Moscow's human
Federal Ministry for the Environment, Nature Conservation and
Nuclear Safety, Renewable Energy Sources in Figures 8 (2010),
available at http://www.erneuerbare-energien.de/files/english/pdf/application/pdf/broschuere_ee_zahlen_en_bf.pdf
(The expansion of renewable energy sources in Germany has been an
exemplary success. Since 2000, renewable energies' contribution to
final energy supply has increased 2.5-fold to a level of 10.3 %.
In the electricity sector, the German Government had originally
aimed to achieve a 12.5 % renewables' share of gross electricity
demand by 2010. This target was already surpassed, considerably,
by 2007. In 2009, a share of over 16% had been reached.).
Eben Harrell, Germany Decides to Extend Nuclear Power, Time (Sept.
6, 2010, 7:38 AM), http://ecocentric.blogs.time.com/2010/09/06/germany-decides-to-extend-nuclear-power/
("Every [sic] since Chernobyl puffed its radioactive plume over
Europe in 1986, Germany has been deeply suspicious of nuclear
power. Opposition to Atomkraft is at the center of the country's
green movement, and almost a decade ago the country decided to
phase out its nuclear plants by 2021.").
Nuclear Power in France, World Nuclear Ass'n (Oct. 15, 2011, 12:35
("France derives over 75% of its electricity from nuclear energy.
This is due to a long-standing policy based on energy security.").
Sasol's Synthetic Fuels Go Global, S. Africa Info (Mar. 16, 2007),
Larry Rohter, With Big Boost from Sugar Cane, Brazil Is Satisfying
its Fuel Needs, N.Y. Times (Apr. 10, 2006), http://www.nytimes.com/2006/04/10/world/americas/10brazil.html?_r=1&pagewanted=1&sq=Bush%20Brazil%20ethanol&st=nyt&scp=5.
Marshall Goldman, Petrostate: Putin, Power and the New Russia
136-70 (Oxford Univ. Press 2010).
Dina R. Spechler & Martin C. Spechler, The Soviet Union and
the Oil Weapon: Benefits and Dilemmas, in The Limits to Power:
Soviet Policy in the Middle East 96, 96-98 (Yaacov Ro'i ed.,
See, e.g., Europe and Russia's Resources: We Are Mutually
Dependent on Each Other, Spiegel Online Int'l (July 14, 2006), www.spiegel.de/international/spiegel/0,1518,426555,00.html.
See, e.g., Céline Charvériat & Romain Benicchio, Trade and
Human Rights: Friends or Foes?, in Peace and Prosperity Through
World Trade 279 (Fabrice Lehmann & Jean-Pierre Lehmann eds.,
2010); Craig Forcese, Human Rights Mean Business: Broadening the
Canadian Approach to Business and Human Rights, in Giving Meaning
to Economic, Social, and Cultural Rights 74 (Isfahan Merali &
Valerie Oosterveld eds., 2001); Adam Gearey, Globalization and
Law: Trade, Rights, War 133 (2005).
Directorate-General for Trade, Trade: Russia (Bilateral
relations), European Comm'n (Oct. 7, 2011), http://ec.europa.eu/trade/creating-opportunities/bilateral-relations/countries/russia/index_en.htm
("The EU is by far Russia's main trading partner, accounting for
52.3% of its overall trade turnover in 2008. It is also by far the
most important investor in Russia.").
Press Releases, European Union, Review of Russia-EU Relations
(Nov. 5, 2008) http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/678&format=
("Trade and investment between the EU and Russia are substantial
and growing, and it is in our mutual interest that this trend
should continue. Russia is our third most important trading
partner and we see growth rates of up to 20% every year. Energy is
a major factor, but impressive growth figures have also been seen
in services. With its sustained high growth rates and emerging
middle class, Russia is an important emerging market on our
doorstep that offers opportunities to EU enterprises. The EU is
the major investor in Russia, accounting for 80% of cumulative
foreign investment.") [hereinafter Russia-EU Relations].
European External Action Service, Freedom, Security and Justice,
European Union (Oct. 15, 2011, 4:50 PM), www.eeas.europa.eu/russia/common_spaces/fsj_en.htm
(The EU has supported the development of democracy, the protection
of human rights and the development of a healthy civil society in
Russia notably through the European Initiative for Democracy and
Human Rights (EIDHR).) [hereinafter Freedom, Security and
With democracy, respect for human rights, fundamental freedoms and
the rule of law an essential element of EU-Russia relations, it is
only natural that these issues are regularly discussed at all
levels. In 2005 regular, six-monthly EU-Russia human rights
consultations were established. They have provided for a
substantial dialogue on human rights issues in Russia and the EU
and on EU-Russian cooperation on human rights issues in
international fora. The EU also maintains a regular dialogue with
both Russian and international NGOs on human rights issues. Issues
that the EU raises with Russia in the human rights consultations
include: the human rights situation in Chechnya and the rest of
the North Caucasus, including torture and ill-treatment; freedom
of expression and assembly, including freedom of the media; the
situation of civil society in Russia, notably in light of the laws
on NGOs and extremist activities; the functioning of the
judiciary, including independence issues; the observation of human
rights standards by law enforcement officials; racism and
xenophobia; legislation relating to elections. For its part the
Russian side raises matters of concern to it in developments
inside the EU. Id. (The EU has supported the development of
European Union Action Plan on Common Action for the Russian
Federation on Combating Organised Crime, 2000
O.J. (C 106/5) 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2000:106:0005:0012:EN:PDF.
EU/Russia Summit, supra note 144, at para. 1 ("[the EU]
[r]eaffirms its belief that Russia remains one of the EU's most
important partners in building long-term cooperation and a
commitment to working together to address common challenges by
means of a balanced, results-oriented approach based on democracy
and the rule of law.").
See, e.g., Maria Elena Efthymiou, Fact Sheets on the European
Union: Russian Federation, European Parliament (Jan. 25, 2011), www.europarl.europa.eu/parliament/expert/displayFtu.do?language=EN&
id=73&ftuId=FTU_6.4.2.html (The fundamental values and
principles of democracy, human rights, the rule of law and the
market economy underpin the EU-Russia bilateral relationship and
its legal basis, the Partnership and Cooperation Agreement (PCA).
Russia and the EU are committed to work together to combat new
threats to international security, such as terrorism, organised
crime, illegal migration and trafficking in people as well as
See, e.g., EU/Russia Summit, supra note 144, at para. F ("whereas,
as a member of the Council of Europe and of the Organisation for
Security and Cooperation in Europe (OSCE), Russia has committed
itself to protect and promote human rights, fundamental freedoms
and the rule of law, and to respect the sovereignty of its
European neighbours; whereas EU-Russia relations have faced a
number of serious challenges over the last few years, notably as
regards concerns about democracy and human rights in Russia").
Cf. Smock, Kozlovsky on Russia's Failed Democracy, BoycottSochi.eu
(Nov. 24, 2009), http://boycottsochi.eu/breaking-human-rights/401-kozlovsky-on-russias-failed-democracy
(reviewing Oleg Kozlovsky, Russia: Lessons of Russia's Failed
Liberalization, in 20 Years Ago, 20 Years Ahead: Young Liberal
Ideas (Ulrich Niemann & Neli Kaloyanova eds., 2009)) (Property
rights are not guaranteed and can easily be violated via the
corrupt police, courts and other government agencies. As a result,
free markets cannot function and the best competitor is not the
most efficient but the one with the best connections. ). While I
respectfully think Mr. Kozlovsky overstates the case, his
identification of the rule of law as a needed precondition to the
most productive open market economy is accurate. However, I argue
that even a corrupt yet productive economy will generate improved
human rights protection and the rule of law indirectly over time,
but not as rapidly as a "clean" economy would. Corruption is a
significant transaction cost and a source of inefficiency.
Cf. Country Strategy Paper 2007-2013: Russian Federation, European
Union, at 3 (2007), http://ec.europa.eu/external_relations/russia/docs/2007-2013_en.pdf
(The EU places emphasis on the promotion of democracy, the rule of
law and good governance in general, as well as respect for human
rights and fundamental freedoms.").
See Sergei Guriev, Tackling Corruption in the Russian Economy,
openDemocracy.net (Nov. 12, 2009), http://www.opendemocracy.net/od-russia/sergei-guriev/tackling-corruption-in-russian-economy
(Growth requires specific economic institutions: the protection of
ownership rights and of competition, the fulfillment of contracts
(i.e. an independent and effective court system.").
Cf. Murad Tangiev, Political Leadership and Transitional Democracy
in the Russian Federation: Challenges and Prospects, 11 J. Peace
Conflict & Dev. 3 (2007) ("Democracy and human rights are
considered to be fundamental prerequisites for a [sic] sustainable
development and long-term peace.").
See, e.g., Jonathan D. Weiler, Human Rights in Post-Soviet Russia,
Demokratizatsiya (Spring 2002), available at findarticles.com/p/articles/mi_qa3996/is_200204/ai_n9062371/
("declining state capacity, fiscal austerity, and growing social
inequality, characteristic features of many of the new
democracies, translate into gross violations of the rights of
socially vulnerable groups.").
See EU-Russia Energy Relations, European Comm'n (Sept. 13, 2011),
("The Russian Federation is the 3rd biggest world trade partner of
the EU. Energy represents 65% of total EU imports from Russia.
Russia is the biggest oil, gas, uranium and coal exporter to the
EU. In 2007, 44.5% of total EU's gas imports (150bcm), 33.05% of
total EU's crude oil imports, and 26% of total EU coal imports
came from Russia. In total, around 24% of total EU gas sources are
originating from Russia. In general, energy dependency varies
significantly between different Member States / regions in the EU.
The EU is by far the largest trade partner of the Russian
Federation: 45% of Russia imports originate from the EU, and 55%
of its exports go to the EU, including 88% of Russia's total oil
exports, 70% of its gas exports and 50% of its coal exports. The
export of raw materials to the EU represents around 40% of the
Russian budget, and the EU represents 80% of cumulative foreign
investments in Russia.").
See id. ("[F]ollowing the gas crisis from 2009, it is essential to
reinforce mutual confidence and to establish a strong and stable
legal framework for EU-Russia energy relations.").
Paul D'Anieri, International Politics: Power and Purpose in Global
Affairs 184 (2d ed. 2010); see Brink Lindsey, Against the Dead
Hand: The Uncertain Struggle for Global Capitalism 71 (2002).
Russia, Office of the U.S. Trade Representative (Aug. 30, 2011), http://www.ustr.gov/countries-regions/europe-middle-east/russia-and-eurasia/russia
(Russia is currently our 24th largest goods trading partner with
$31.7 billion in total (two way) goods trade during 2010. Goods
exports totaled $6.0 billion; Goods imports totaled $25.7 billion.
The U.S. goods trade deficit with Russia was $19.7 billion in
2010. Russia was the United States' 37th largest goods export
market in 2010 U.S. goods exports to Russia in 2010 were $6.0
billion, up 11.9 percent ($636 million) from 2009."); Trade in
Goods with Russia, U.S. Census Bureau, available at http://www.census.gov/foreign-trade/balance/c4621.html#2010
(showing data that in 2010 the U.S. exported but 6.0064 billion
dollars of goods to Russia and imported only 25.6910 billion
dollars of goods from Russia.).
See, e.g., Norman A. Graebner, Richard Dean Burns & Joseph M.
Siracusa, Reagan, Bush, Gorbachev: Revisiting the End of the Cold
War 2, 47 (2008); John Prados, A World of Secrets: Intelligence
and Counterintelligence, in The Central Intelligence Agency:
Security Under Scrutiny 143 (Athan G. Theoharis et al. eds., 2006)
(explaining that errors in U.S. analysis of Russian capabilities
and intentions are a fairly consistent historical fact). See
generally Eric Allen Engle, Beyond Sovereignty? The State After the
Failure of Sovereignty, 15 ILSA J. Int'l & Comp. L. 1 (2008);
Engle, Europe Deciphered, supra note 2; Engle, The Transformation,
supra note 51; Eric Allen Engle, Working Paper, Contemporary Legal
Thought in International Law: A Synopsis (2010), http://www.law.harvard.edu/students/orgs/hela/working%
20papers/2010/EngleContemporaryLegalThought.doc (explaining that
this results from 1) individualist method which does not consider
historical tendencies of groups 2) presuming the opponent has the
same experiences and objectives (failure in opponent modeling) 3)
presuming the opponent is an (implacable) adversary and cannot be
a partner. These sorts of errors are the result of applying the
outmoded realist state centric view of the world to international
See Matthew Day, EU Immigration Fears over Polish Visa Deal with
Russia, The Independent.ie (Dec. 28, 2010), http://www.independent.ie/world-news/europe/eu-immigration-fears-over-polish-visa-deal-with-russia-2475682.html
(Poland is pushing for citizens of the Russian enclave of
Kaliningrad to have visa-free travel, despite fears this could
increase smuggling and illegal migration into the European
Cf. Freedom, Security and Justice, supra note 158 ("Our
cooperation contributes to the objective of building a new Europe
without dividing lines and facilitating travel between all
Europeans while creating conditions for effectively fighting
illegal migration. Moreover, the EU has a considerable interest in
strengthening cooperation with Russia by jointly addressing common
challenges such as organised crime, terrorism and other illegal
activities of cross-border nature.").
Russia-EU summit: Is Russia Part of Europe?, Rianovosti (June 2,
2010, 5:04 PM), http://en.rian.ru/analysis/20100602/159271440.html
("The visa barrier between the EU and its eastern neighbors has
been growing stronger since the 1990s as a result of Europe's fear
of a wave of poor immigrants from the East. As it turns out, this
fear was unjustified. Even after Poland joined the EU and all
restrictions on Polish immigration were lifted, Poles continued to
immigrate to other European countries legally for jobs they had
already secured and with enough travel money in their pockets.
There was no wave of immigrants from Belarus, Ukraine or Russia,
even though Ukrainians, for example, can get a Schengen visa from
Poland free of charge.").
Russia to Announce Amnesty for Millions of Illegal Guest-Workers,
Russ. Daily News Info. Serv. (Sept. 13, 2011), http://www.english-to-russian-translation.com/russian-translation-news-091105.html
("The chairman of the Federal Migration Service said that there
were up to 15 million illegal workers living in present-day
Russia. About 80 percent of them come from the countries of the
Russia Cracking Down on Illegal Migrants, N.Y. Times (Jan. 15,
EU-Russia Common Spaces Progress Report 2009, European Comm'n
(Mar. 2010), at 5, available at http://www.st-gaterus.eu/_media/commonspaces_prog_report_2009_en.pdf
(The overall objective of the Common Economic Space is the
creation of an open and integrated market between the EU and
Russia. ) [hereinafter Progress Report].
See Agreement on Partnership and Cooperation Establishing a
Partnership Between the European Communities and their Member
States, of One Part, and the Russian Federation, of the Other
O.J. (L 327), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:21997A1128(01):EN:HTML.
See Partnership and Cooperation Agreements (PCAs): Russia, Eastern
Europe, the Southern Caucuses and Central Asia, European Union
(Sept. 29, 2010), http://europa.eu/legislation_summaries/external_relations/relations_with_third_countries/eastern_europe_and_central_asia/r17002_en.htm
(showing that the EU has signed PCAs with almost all of the former
Joseph Francois & Miriam Manchin, Economic Impact of a
Potential Free Trade Agreement (FTA) Between the European Union
and the Commonwealth of the Independent States 102 (CASE Network
Reports, ENEPO Project, No. 84/2009), available at http://www.case-research.eu/upload/publikacja_plik/23704363_CNR_84_final.pdf.
(The Partnership and Co-operation Agreement (PCA) which entered
into force in 1997 has been the framework of the EU-Russia
relationship for a decade. The agreement regulates the political,
economic and cultural relations between the EU and Russia and is
the legal basis for the EU's bilateral trade with Russia. In 2003
the EU and Russia agreed to create four EU-Russia "common spaces",
within the framework of the existing Partnership and Co-operation
Agreement (PCA). The Common Economic Space (CES) aims at
increasing economic cooperation with creating grounds for
establishing a more open and integrated market between the EU and
Russia-EU Relations, supra note 157 ("EU-Russia relations are
based on the Partnership and Cooperation Agreement (PCA) in force
since 1997, which was further complemented by the Four Common
Spaces in 2005. This results in an institutional framework which
in many respects works well, particularly at political level [sic]
through the Cooperation Council (now Permanent Partnership Council
in Foreign Ministers' format).").
European External Action Service, EU-Russia Common Spaces,
European Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/index_en.htm.
Commission Report Reviews Progress Under EU-Russia Common Spaces,
N. Dimension P'ship in Pub. Health and Soc. Well-being (Apr. 23,
(Russia is not part of the European Neighbourhood Policy. Its
relationship with the EU is defined as a Strategic Partnership,
consistent with the ENP but evolving along different lines.).
European External Action Service, Common Economic Space, European
Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/economic_en.htm.
Freedom, Security and Justice, supra note 158 (The EU and Russia
agreed at the St. Petersburg Summit of May 2003 to create in the
long-term a Common Space on Freedom, Security and Justice". A road
map agreed in 2005 sets out the objectives and areas for
cooperation in the short and medium term. Its gradual development
takes place in the framework of the Partnership and Cooperation
Id. (Our cooperation contributes to the objective of building a
new Europe without dividing lines and facilitating travel between
all Europeans while creating conditions for effectively fighting
illegal migration. Moreover, the EU has a considerable interest in
strengthening cooperation with Russia by jointly addressing common
challenges such as organised crime, terrorism and other illegal
activities of cross-border nature.).
See generally Progress Report, supra note 181, at 41-43.
European External Action Services, External Security, European
Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/external_security_en.htm
(The EU and Russia have agreed to reinforce their cooperation in
the area of external security... ).
European External Action Services, Research and Development,
Education, Culture, European Union (Aug. 29, 2011), www.eeas.europa.eu/russia/common_spaces/research_en.htm
(In the area of research and development the objective is to
enhance EU-Russia cooperation in mutually agreed priority
Russia to Spend $132 Million on Skolkovo Research Hub in 2010, RIA
Novosti (Aug. 29, 2010, 19:29), en.rian.ru/business/20100729/159987299.html.
NDPHS - About NDPHS - Background, Mission, Priorities, Strategy,
Actors and Activities, N. Dimension P'ship in Pub. Health and Soc.
Well-being (Aug. 29, 2011), http://www.ndphs.org/?about_ndphs
(The mission of the NDPHS is to promote the sustainable
development of the Northern Dimension area by improving peoples'
health and social well-being.).
European External Action Services, European Union: Northern
Dimension, European Union (Aug. 29, 2011), ec.europa.eu/delegations/russia/eu_russia/fields_cooperation/regional_issues/northern_dimension/index_en.htm
(The Northern Dimension Policy of the European Union answers to
the EU's intensive cross-border relations with Russia in the
Baltic Sea and Arctic Sea regions.).
European External Actions Services, Northern Dimension, European
Union (Aug. 29, 2011), http://eeas.europa.eu/north_dim/
(To facilitate project implementation within the framework of the
ND policy, partnerships on the following issues were created: the
environment (NDEP), public health and social wellbeing (NDPHS),
culture (NDPC) and transport and logistics (NDPTL).).
NDPHS - About NDPHS - Background, Mission, Priorities, Strategy,
Actors and Activities, N. Dimension P'ship in Pub. Health and Soc.
Well-being (Aug. 29, 2011), http://www.ndphs.org/?about_ndphs
(The mission of the NDPHS is to promote the sustainable
development of the Northern Dimension area by improving peoples'
health and social well-being.).
See European External Action Services, Eastern Partnership,
European Union (Aug. 29, 2011), http://eeas.europa.eu/eastern/index_en.htm
("The European Commission put forward concrete ideas for enhancing
our relationship with: Armenia, Azerbaijan, Belarus, Georgia,
Moldova and Ukraine. This would imply new association agreements
including deep and comprehensive free trade agreements with those
countries willing and able to enter into a deeper engagement and
gradual integration in the EU economy.").
Press Release, Council of the European Union, Joint Declaration of
the Prague Eastern Partnership Summit (May 7, 2009), available at
Francois & Manchin, supra note 185, at 9.
See, e.g., European Neighbourhood and Partnership Instrument:
Georgia, National Indicative Programme 2007-2010, European Comm'n
4 (Sept. 13, 2011), http://ec.europa.eu/world/enp/pdf/country/enpi_csp_nip_georgia_en.pdf.
See, e.g., Motion for a Resolution on the EU-Russia Summit, Com
(2010) B7-0297 (June 9, 2010), available at www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B7-2010-0297&language=EN
(whereas there is a latent dispute between the EU and Russia on
creating spheres of influence in the common neighbourhood; whereas
this competition prevents the solution of frozen conflicts and
risks to create new one's; whereas the European Union and the
Russian Federation could and should play together an active role
in promoting peace and stability in the common neighbourhood,);
Pop, supra note 142; Andrew Wilson et al., The Future of EU-Russia
Relations, Eur. Parl. 15-16 (2009), www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/pe407011en_wilsonpopes/pe407011en_wilsonpopescu.pdf.
EU/Russia Summit, supra note 144, at para. G ("whereas Russia's
accession to the World Trade Organisation (WTO) would make a
substantial contribution to further improving economic relations
between the EU and Russia, subject to a binding commitment on
Russia's part to full compliance with and implementation of WTO
undertakings and obligations, and would pave the way for a
far-reaching, comprehensive economic integration agreement between
the two partners on the basis of genuine reciprocity, and whereas
Russia established a customs union with Kazakhstan and Belarus on
1 January 2010").
2007 EU-U.S. Summit Promoting Peace, Human Rights and Democracy
Worldwide, European Union 2 (2007), http://www.eeas.europa.eu/us/sum04_07/statement_political_security_issues.pdf
(We note the importance of our relationship with Russia. A stable,
prosperous and democratic Russia remains in our common interest.
We seek in our relations with Russia to promote common values such
as political pluralism, the rule of law, and human rights,
including freedom of media, expression and assembly, and note our
concerns in these areas. We will continue to work with Russia in
areas of mutual interest, including non-proliferation,
counterterrorism, energy security and regional issues, such as the
resolution of frozen conflicts. We will also continue to work with
Russia towards its accession to the World Trade Organization.").
Events: Russia's WTO Accession is Our Foreign Economic Policy
Priority - Deputy Prime Minister Alexander Zhukov, Official
Website of the Gov't of the Russ. Fed'n (Dec. 1, 2010), http://government.ru/eng/docs/13142/
("Russia's WTO accession is our foreign economic policy
Prime Minister Vladimir Putin Meets with Representatives of the
German Business Community, Official Website of the Gov't of the
Russ. Fed'n (Nov. 26, 2010), http://premier.gov.ru/eng/events/news/13120/
("We believe that we have come close to meeting every requirement
for this. Moreover, I can tell you that, as our negotiators
report, in practical terms we have agreed, at least with the
European Union (EU), on every major issue. I hope that we will
document this in the near future. And, finally I'd like to comment
on an issue that is worrying many people. I'm referring to our
Customs Union, which is to be followed by the Common Economic
Space (CES), and that will mean further integration with Belarus
and Kazakhstan. I see here a lot of my acquaintances and even
friends. And this is what I want to tell you: I think you should
be grateful to us for our enormous and complicated work on
coordinating the positions of our partners from Belarus and
Kazakhstan.... the process of coordinating those positions, which
are almost identical to WTO rules, was indeed complicated and
exhausting. This means that our partners in Europe ... will be
able to work, in the near future, both in Belarus and in
Kazakhstan by nearly common rules, rules that are very close to
WTO requirements. If you study in detail what we are negotiating,
you will see that there are practically no deviations from WTO
Press Release, European Union, Joint Statement of the Delegations
of the Russian Federation and of European Union on the Occasion of
the Conclusion of the Bilateral Talks on the Key Issues in the
Accession of the Russian Federation to the WTO (Nov. 24, 2010),
available at europa.eu/rapid/pressReleasesAction.do?reference=IP/10/1599&format=HTML&aged=0&language=EN&guiLanguage=EN
[hereinafter Joint Statement on Russia] ("Both sides are confident
that this agreement will greatly facilitate the overall process of
accession of Russia to the WTO.").
EU/Russia Summit, supra note 144, at para. G.
The 10 Benefits: 1. Peace, World Trade Org. (Feb. 6, 2011), www.wto.org/english/thewto_e/whatis_e/10ben_e/10b01_e.htm;
see also Comparative Advantage, World Trade Org. (Aug. 22, 2011),
David Ricardo, On the Principles of Political Economy and Taxation
7.13-7.16 (Library of Econ. & Liberty 1999) (1817); Adam
Smith, An Inquiry into the Nature and Causes of the Wealth of
Nations 3 (Univ. of Chi. Press 1976) (1776) (noting an example of
increased production in a pin factory due to specialization).
See Joint Statement on Russia, supra note 210 ("Both sides are
confident that this agreement will greatly facilitate the overall
process of accession of Russia to the WTO, and they re-affirm
their shared commitment to continue working in a constructive and
co-operative spirit on the remaining questions in this
multilateral process to achieve this goal as soon as possible.").
Lyudmila Alexandrova, No Key Differences Left at Russia's Talks on
WTO Membership, The Org. of Asia-Pacific News Agencies (Nov. 27,
Russia to Sign WTO Accession Document with EU Next Week - EU
Official, RIA Novosti: Johnson's Russia List (Nov. 29, 2010), http://www.cdi.org/russia/johnson/russia-wto-europe-nov-366.cfm.
See Joint Statement on Russia, supra note 210 ("Both sides
stressed their strong expectation that the rapid accession of
Russia to the WTO will greatly contribute to the opening of new
opportunities to do business with and in Russia and strengthen the
international competitiveness of the Russian economy by
harmonising its economic regime with global trading rules.").
See Roberts & Wehrheim, supra note 52, at 316 ("Normally,
setting up a customs union or free trade area would violate the
WTO's "most-favoured-nation" principle which assures equal
treatment for all trading partners. However, three WTO articles
provide derogations from this principle. Article XXIV of the GATT
(complemented by an "Ad Art XXlV", and updated by the 1994
Understanding) allows regional trading arrangements to be set up
under certain conditions. Article XXIV contains the primary
provisions covering customs unions (CUs), free trade areas (FTAs)
and interim trade agreements (necessary for the formation of CUs
and FTAs). It is based on four main criteria: Duties and other
restrictive regulations of commerce must be eliminated (XXlV:8) on
"substantially all trade" between constituent territories of a
customs union or free trade area. Interim arrangements leading to
the formation of a free trade area or customs union should exceed
ten years only in exceptional circumstances. Furthermore, Article
V of the General Agreement on Trade in Services allows WTO members
to sign regional agreements on services provided that such
agreements have substantial sectoral coverage, eliminate existing
discriminatory measures and/or prohibit new or more discriminatory
measures. Finally, the "Enabling Clause" allows derogations from
the most-favoured nation treatment principle in favour of
developing countries and permits preferential arrangements among
developing countries in goods trade.").