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 war. 8
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
in Russia. The system, in its own *553
terms, lost 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 self-defense.
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
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
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 state
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 inconvertible. 18
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. 20
Barter also occurred at the *555
micro-economic level, though not
as a legitimate de jure instrument of state policy, but as a de
facto necessity of everyday life, albeit of questionable
"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
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
relations to 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
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 worked. 39
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 capitalist restoration.
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
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
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
and Steel 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 nation-states. 51
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 failed to evolve into a viable transnational governing
institution due to a lack of a common vision 57
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
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
overlapping multilateral and bilateral treaties also left many
issues unaddressed. 65
For example, the CIS'
agreements were not sophisticated enough to take into account
trade barriers 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) 67
proportionality, and acquired community positions (acquis
the CIS treaties further crippled the CIS. Common institutions
such as the Economic Court of the CIS were weak or entirely
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
(EurAsEC) to see whether and how
the CIS may consider and implement EU principles.
2. The Eurasian
Economic Community (EurAsEC) 70
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)
(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 acquis) 73
"General principles of
international law" as a source of EurAsEC law
The principle of
legality (that EurAsEC institutions should be legal, not
the EurAsEC institutions should be built out incrementally to
progressively attain a single integrated market)
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
democracies in the former Soviet Republics are not systematic
violators of the most basic human rights. 76
incrementalism is thus more effective than extreme methods at
securing human rights protection. 77
resulting from freer trade and improved economic performance are
positively correlated. 78
economic performance and improved human rights protection are
positively correlated. 79
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.
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
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 supply. 94
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.
This newly created industrial economy, however, produced a
myriad of different goods. 99
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 liberalism. 101
Thus, the customs
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 surpassed. 102
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
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 that *570
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.
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 improved.
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
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
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
economy with social protections favors prosperity;
prosperity favors protection of human rights;
deficit can be ex post facto legitimized by the success of
public policies that were politically unpopular at the time of
Rather than 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
reiterate the historical materialist claims that economic
processes ultimately drive legal and ideological
rationalizations of any given political system. 117
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
points in social life where
superstructure can influence base. 119
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. 121
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 resources*574
needed for substantive human
rights protection and enjoyment.
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
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
trade and territory. 129
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
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. 133
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
seeking to 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 ways ahead.
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 their efficacy.
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
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 protections.
"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
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.
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
This growing 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
reasons, France uses it extensively. 149
It is even
possible, albeit expensive, to liquefy coal into petroleum
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 most. 152
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.
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
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 protection. 155
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
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 Partnership program.
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 era.
EU's concerns with respect to the Russian Federation go to
questions of the rule of law, democracy, 158
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 law. 161
The EU's concern with democracy in *583
the Russian Federation 162
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
legitimation can thus be obtained after the fact and is not a
necessary, indispensable precondition to improving human
well-being in real terms.
Open governance 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
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.
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
which includes arms
and drug trafficking. 175
Human migration is
also a concern, with fears that Russian workers might flood
European labor markets. 176
fears, 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
Federation, most of them
economic integration will not cause a flood of Russian labor
into the EU.
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 Republics. 183
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
framework functioning through the Permanent Partnership Council.
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
Common Economic Space, covering economic issues and the
Common Space of Freedom, Security and Justice;
Common Space of External Security, including crisis management
and non-proliferation; and
Common Space of Research and Education, including cultural
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
the "gradual approximation of
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
2. Common Space on
Freedom, Security and Justice
This common space
essentially governs police cooperation. 190
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
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
From the Russian
perspective, it involves developing the Skolkovo research and
industrial park, which is considered the Russian Silicon Valley.
Dimension's objective is to promote environmentally sustainable
development throughout the region. 196
It is a regional
political framework established to govern the Baltic and Arctic
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
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
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
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 differences 214
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.
1. 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
compared the 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.
2. See generally Eric
Allen Engle, Europe Deciphered: Ideas, Institutions and Laws, 33
Fletcher F. World Aff. 63, 63-81 (2009), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1336490
(describing transnational governance within the EU).
3. 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].
4. A. Nove,
Is There a Ruling Class in the USSR?, 27 Soviet Studies 615,
615-16 (Oct. 1975).
White, Russia Goes Dry: Alcohol, State and Society 43
(Cambridge Univ. Press 1996).
6. See, e.g., Gail
Warshofsky Lapidus, Women in Soviet Society: Equality,
Development, and Social Change 136 (Univ. of Cal. Press
7. 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
8. Id. art. 28.
9. See generally Michael
Voslensky, Nomenklatura: The Soviet Ruling Class (Eric
Mosbacher trans., Doubleday 1984).
10. 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).
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.
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).
13. See, e.g., Peter
Grose, Operation Rollback: America's Secret War Behind the Iron
Curtain 210 (2000).
14. 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
15. 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).
Allen Engle, Marxism, Liberalism, And Feminism: Leftist Legal
Thought 33-35 (Serials Publ'ns 2010).
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).
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.
19. USSR Constitution,
supra note 3, at art 31.
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
21. See, e.g., Jim
Leitzel, Russian Economic Reform 128 (Routledge 1995); see
Kim, Informal Economy Activities of Soviet Households: Size and
Dynamics, 31 J. Comp. Econ. 532, 532-551 (2003).
22. Barbara Walker, Maximilian
Voloshin and the Russian Literary Circle: Culture and Survival
in Revolutionary Times 174 (Ind. Univ. Press 2005).
Lavigne, International Political Economy and Socialism 175
(David Lambert trans., Cambridge Univ. Press 1985). See generally
Zwass, The Council for Mutual Economic Assistance: The Thorny
Path from Political to Economic Integration (M.E. Sharpe
24. 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).
26. 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, 2011), http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/dialogues/#_russia.
27. See, e.g., Shane
Hart, Computing in the Former Soviet Union and Eastern Europe,
5 Crossroads 23, 23-25 (Mar. 1999).
28. U.S. Dept. of State,
Background Note: Russia (Aug. 28, 2011), http://www.state.gov/r/pa/ei/bgn/3183.htm.
29. See generally Eric
Allen Engle, A Social-Market Economy for Rapid Sustainable
Development, 2 J.L. Dev. & Pol. 42, 42-62 (2009), available at
(explaining the ISI model in the context of Soviet development
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.
31. See Brine, supra note
32. Engle, A
Social-Market, supra note 29, at 43.
37. 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.
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
39. 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.
40. 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).
41. See Alex
F. Dowlah & John E. Elliott, The Life and Times of Soviet
Socialism 182 (1997).
42. Engle, Europe
Deciphered, supra note 2, at 65.
43. See, e.g., Euro-Politics:
Institutions and Policymaking in the "New" European Community
260 (Alberta M. Sbragia ed., 1992).
44. 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.
45. 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].
46. 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.).
47. 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
48. 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.
49. 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).
50. 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).
51. See Eric Allen Engle,
The Transformation of the International Legal
System: The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev.
23, 23-25 (2004).
52. See Michael Roberts
& Peter Wehrheim, Regional Trade Agreements and WTO Accession
of CIS Countries, 36 Intereconomics 315, 315 (2001), available at
(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.).
53. 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.").
54. 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).
55. 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 disintegration".).
56. See Commonwealth of
Independent States (CIS), GlobalSecurity.org (Aug. 24, 2011), http://www.globalsecurity.org/military/world/int/cis.htm.
57. 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.").
58. 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).
59. 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).
60. 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 economic freedom).
61. 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 participatory government.
62. 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. 1996).
63. "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.
64. 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.").
65. See id. (The
agreements that are concluded often are partial and selective,
while their ratification and implementation also is a mixed
66. 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
67. 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.
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.
69. 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...).
70. 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.).
71. 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.).
72. See, e.g., Engle,
Europe Deciphered, supra note 2, at 75.
73. See Jorgensen, supra
note 68, at 3.
L. J. Siermann, Politics, Institutions, and the Economic
Performance of Nations 131 (Edward Elgar Publ'g 1998).
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.").
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.").
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
78. 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.
79. Siermann, supra note
74, at 131.
80. 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.
81. See, e.g, Paul Craig
& Grainne De Burca, EU Law: Text, Cases, and Materials 3-6
82. Stefan Füle, Address
at Columbia University (Aug. 25, 2011), http://www.europa-eu-un.org/articles/fr/article_10447_fr.htm.
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).
84. See Siermann, supra
74, at 131; Fuele, supra note 82.
85. Karl Marx &
Friedrich Engels, The Communist Manifesto 11 (The Echo Library
86. See, e.g., Damian
Chalmers et al., European Union Law: Cases and Materials 7
(Cambridge Univ. Press 2010).
87. See generally Peter
Buerger, Theory of the Avant-Garde (Michael Shaw trans.,
Univ. of Minn. Press 1984).
88. 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.
89. 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.
90. Friedrich Engels
& Karl Marx, Socialism: Utopian and Scientific 68 (Andrew
Moore ed., Edward Aveling trans., Mondial 2006).
91. 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.").
92. See, e.g., Treaty of
Rome, supra note 45, at pmbl.
93. White, supra note 5,
94. See generally Robert
Whitesell, Why Does the Soviet Economy Appear to be Allocatively
Efficient?, 42 Soviet Studies 259, 259-268 (Apr. 1990).
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).
96. See Engle, A
Social-Market, supra note 29, at 42.
99. Engle, A
Social-Market, supra note 29.
100. 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.
101. 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
102. 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 tinyurl.com/lexnaturalis,
and John Maynard Keynes, General Theory of Employment, Interest
and Money (1936), available at www.marxists.org/reference/subject/economics/keynes/general-theory/.
103. World Bank,
Belarus: Prices, Markets, and Enterprise Reform 1 (1997).
104. See, e.g., id.
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.).
106. 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).
107. 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
108. See, e.g., Thomas
Carothers, The Rule of Law Revival, 77 Foreign Aff. 95,
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).
110. See Charles
Wright Mills & Alan Wolfe, The Power Elite 3-4 (2000).
111. 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).
112. See, e.g., Richard
Bellamy & Dario Castiglione, Constitutionalism and Democracy
- Political Theory and the American Constitution, 27 Brit. J.
Pol. Sci. 595 (1997).
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.")
114. 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.
115. 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
116. 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
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.
117. See generally G.
A. Cohen, Base and Superstructure: A Reply to Hugh Collins, 9
Oxford J. Legal Stud. 95 (1989).
118. 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.
119. 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.
120. See generally
Engle, Marxism, supra note 16.
121. 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).
122. 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).
123. 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.
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."").
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
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
Cassese, European Administrative Proceedings, 68 L. &
Contemp. Probs. 21, 23 (2004) ("functionalism ... has
enabled the incremental, progressive development of the European
128. Lodge, supra note
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.").
129. 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).
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.").
131. See id. at 284.
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)).
133. 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.").
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).
135. 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).
136. See, e.g., Jim Ife,
Human Rights and Social Work: Towards Rights-Based Practice 83
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.").
Mukherjee, Hunger: Theory, Perspectives and Reality 83-84
139. 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).
140. 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).
141. 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.
Pop, Putin Proposes Russia-EU Union, EU Observer (Nov. 26, 2010,
09:29 AM), http://euobserver.com/19/31361.
Schumpeter, The Theory of Economic Development 154 (Redvers
Opie trans., 1934).
144. 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].
145. 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.
146. 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
147. 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.).
148. Eben Harrell,
Germany Decides to Extend Nuclear Power, Time (Sept. 6, 2010, 7:38
("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.").
149. Nuclear Power in
France, World Nuclear Ass'n (Oct. 15, 2011, 12:35 PM), http://www.world-nuclear.org/info/inf40.html
("France derives over 75% of its electricity from nuclear energy.
This is due to a long-standing policy based on energy security.").
150. Sasol's Synthetic
Fuels Go Global, S. Africa Info (Mar. 16, 2007), http://www.southafrica.info/business/success/sasol-130307.htm.
151. 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.
Goldman, Petrostate: Putin, Power and the New Russia 136-70
(Oxford Univ. Press 2010).
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.,
154. 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.
155. 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).
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.").
157. 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].
158. 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
159. 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
160. 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.
161. 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.").
162. 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
163. 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").
164. Cf. Smock,
Kozlovsky on Russia's Failed Democracy, BoycottSochi.eu (Nov. 24,
(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.
165. Cf. Country
Strategy Paper 2007-2013: Russian Federation, European Union, at 3
(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.").
166. 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.").
167. 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
168. 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.").
169. See EU-Russia
Energy Relations, European Comm'n (Sept. 13, 2011), http://ec.europa.eu/energy/international/russia/russia_en.htm
("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.").
170. 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.").
171. 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).
172. 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.).
173. 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
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
174. 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
175. 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
176. 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.").
179. 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
180. Russia Cracking
Down on Illegal Migrants, N.Y. Times (Jan. 15, 2007), http://www.nytimes.com/2007/01/15/world/europe/15iht-migrate.4211072.html.
181. 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].
182. 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 Part, 2007
O.J. (L 327), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:21997A1128(01):EN:HTML.
183. See Partnership and
Cooperation Agreements (PCAs): Russia, Eastern Europe, the
Southern Caucuses and Central Asia, European Union (Sept. 29,
(showing that the EU has signed PCAs with almost all of the former
185. 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
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
187. European External
Action Service, EU-Russia Common Spaces, European Union (Aug. 29,
188. Commission Report
Reviews Progress Under EU-Russia Common Spaces, N. Dimension
P'ship in Pub. Health and Soc. Well-being (Apr. 23, 2010), www.enpi-info.eu/maineast.php?id=21349&id_type=1&lang_id=450
(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.).
189. European External
Action Service, Common Economic Space, European Union (Aug. 29,
190. 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 Agreement.).
191. 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.).
192. See generally
Progress Report, supra note 181, at 41-43.
193. European External
Action Services, External Security, European Union (Aug. 29,
(The EU and Russia have agreed to reinforce their cooperation in
the area of external security... ).
194. 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
195. 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.
196. 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.).
197. 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.).
199. European External
Actions Services, Northern Dimension, European Union (Aug. 29,
(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).).
200. 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.).
201. 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.").
202. Press Release,
Council of the European Union, Joint Declaration of the Prague
Eastern Partnership Summit (May 7, 2009), available at europa.eu/rapid/pressReleasesAction.do?reference=PRES/09/78&format=HTML&aged=0&language=EN&guiLanguage=EN.
203. Francois &
Manchin, supra note 185, at 9.
204. See, e.g., European
Neighbourhood and Partnership Instrument: Georgia, National
Indicative Programme 2007-2010, European Comm'n 4 (Sept. 13,
205. 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.
206. 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
207. 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.").
208. 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
209. 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
210. 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.").
211. EU/Russia Summit,
supra note 144, at para. G.
212. 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).
213. 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.").
Alexandrova, No Key Differences Left at Russia's Talks on WTO
Membership, The Org. of Asia-Pacific News Agencies (Nov. 27,
215. 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.
216. 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.").
217. 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.").