Governing Conscious Interdependence: Inter-regional Independent Authorities as Regulatory Proposal for the Relations between European Union and Russia
Working paper N. 1, 26.10.2009
1. Constitutionalism and the Rule of Law in the process of European integration and in its external relation. An important consequence of the concept of the development of the concept of rule of law, as encarved both in the European Union Treaty, in the Russian Constitution, and as it emerges from the legal heritage of constitutionalism, is that the development of a sufficiently articulated legal frameworks in order to achieve public duties is not only restrained to the internal tasks of the States, but also to the international relations. The development of the UNO legal order, the Vienna conventions on the law of treaties, the characteristics of the development of the European Union legal order, the multilpication of international jurisdictions, appear important milestones of this process. However, the importance of this process, wihin the framework of constitutionalism, lies in the fact that, the requirement of the respect of the rule of law manifests whenever there appears a public duty, both at the national level and at the level of the international relations. This is the manifestation of a specific resistance to the derogation of all the principles that, on the internal order and in the order of the international relations appear the manifestation of the rule of law. For this reason, the Road Maps of 2005 between Russia and European Union that developed on the base the St. Petersburg Summit of 2003 as finally articulated in 2005, and whose implementation has been analysed in the reports of 2007 and 2008, deserves a specific attention. The Road Map envisages four „common spaces“ within the relations between European Union and Russia: the common economic space understood as broad in the scope as including areas such as transport, telecommunication, space energy and environment, the common space of freedom, security and justice, the common space of external security, the common space of research and education, including cultural aspects.
The concept of „common space“ appears interesting and intriguing, if not else for the terminologic analogy with the „European Economic Area“, a treaty that has been leading to a peculiar form of extension of the Community legal discipline to the countries of the European Free Trade Association. This treaty has been forming the base of a widening of the European Union both for what concerns the membership and that for what concerns the range of influence of the principles of European Community law. However, due to the fact that such twofold widening has been taking place between two legal subjects, and markedly, in the case of the European Economic Area of two international organizations, the EEC and the EFTA, the definition of tasks and competences within the Treaty lead to the need to govern their achievement. Such a government, as the European Court of Justice has been underlining in the opinion n. 1/91, may be leading to conflicts between institutions. However, the necessity of a government of the mentioned tasks, and that is of adequante organs and procedures, including procedures for the solution of controversies, has not been put in discussion. The principle of proportionate government for the assigned tasks appear in this light, not only a principle encarved in constitutionalism, but a principle necessary to permit that legal enactments, at any kind of level there may be conceived, may be exectuted according with the rule they have been determined. In this light we will analize the „Road Map“ between European Union and Russia.
2. The Normative Phisionomy of the Road Map and its Components. A first consideration to develop about the Road Map, concerns the normative physionomy of the rules contained in it the related documents. By normative phisionomy we mean the characterization of the substantive tasks and the institutional tasks to be carried on by the partners. We observe a different approach in the different 4 spaces considered. More specifically, for what concerns the economic issues, the road map envisages, among others, the development of a regulatory dialogue, the respect of transparency and proportionality (for example in the field of public procurements), the development of authorities of „quasi“ government, the dialogue among partner institutions and servants, and the exchange of information.
After a brief analysis, we see that for what concerns the normative physionomy of the security issues, the substantial elements significantly prevail, in the form, for example of common purposes and of tasks related to the implementation of international acts. The issues related on the common government of the substantive issues, assume quite a limited role. The same we may say for what concerns the external security issues.
For this reason, especially for what concerns the security and the external secuirty issues, there results a confusion between decision making issues, related to the implementation of the common strategies included in the road map, and policy issues concering to short terms mutual adjustments. As the analysis of the reports concerning the achievements of the road map indicates, the shortcomings in the achievments of the common goals seem to derive from the difficulty in finding an adequate institutional framework to achieve the common tasks. An institutional framework that may permit to take into account also the final interdependence of the elements contained in the four spaces of the road map, that represent the common conception of the mutual interdependence between Russia and the European Union.
3. Inter-Regional Independent Authorities (IRIA's). The institutional deficit for the achievement of the goals included in the Road Map, may lead, as we see for the reports on the achievements of the Road Map itself, to a highly selective approach to the development of the issues related to it, and therefore to scenarios characterised by short term and conjunctural approaches to the relations between the European Union and Russia. Such scenarios lead in effect to the loss of a legal framework for the development of the relations between the European Union and Russia, which thing may present some features of illegality to the principle of the respect of the rule of law which binds the European Union, and in the same time its Member States and the same Russia.
For this reason, we think worth accompaining our reflection with a proposal, that appears compatible both with the reule of law and with a government that takes place involving the representation and the participation of the citizens.
The proposal relates with the creation of inter-regional independent authorities (IRIAs) with the task to contrbitue to the regulation and the government of the relations between European Union and Russia.
The task of such authorities ought to be related with permitting:
a) common decision making, although not in the context of political integration;
b) parallel legal development between Russia and the European Union;
c) fitted harmonization of legislation and administrative procedures in different legal environments;
For these reasons, although such authorities may be said to be elements of a „governance network“ to be developed between European Union and Russia, however they are conceived as instrumental to the process of government based upon representation and participation. In this perspective, it should be acknowledged, as a priority, the consistency of such a proposal, both with the requirements of the rule of law stemming from constitutionalism and the European rule of law, also in its most recent developments, but also with the Russian demands.
Trying to sketch an introductive project concerning the institutional architectures of the IRIA's, their members, we believe, ought to be appointed both from the European Union, through a procedure involving the Commission, the European Council and the European Parliament, and the Russian Federation.
Concerning the powers of such authorities, one of the main specificities of the problem is that such authorities ought to be distinguished by the authorities such as the High Authority of the European Coal and Steel Community or the European Commission. Indeed, such institutions have been vested of powers within the process of European integration, which has been founded on the assumption to pursue political integration through the creation of a common space of sovereignty. A very significant difference in the construction of framework of the legal relations between the European Union and Russia, with respect to the process of European integration, is that in principle the relations between Russia and European Union may not be based upon the assumption to pursue political integration. Instead, they ought to be based upon the assumption to pursue consistently common goals and a growing amount of synergy between the States and the societies – creating an insitutional background with adequante powers with respect to their tasks. For these reason the IRIAs, that are the institutions through which the European Union and Russia develop and found their relations on the rule of law, should be vested, at least on their introductory variant, only with circumscribed decision powers. Instead, they ought to be able to put in motion activities of the constitutional organs of the European Union and of the Russian Federation. For this reason, toghether with some decision powers, such authorities ought have powers relating to collect and elaborate information, using to this task the administration of the European Union (and of its Members States) and of Russia. Such findings ought to be referred to the European Parliament as well to the Federal Assembly of Russia (in principle to the State Duma).
The function of the IRIAs to inform the Parliaments should permit IRIA's to develop as institutions supporting the democratic development of the processes of government in European Union and in Russia. In order to permit a constant and fruitful exercise of such function of information, the European Parliament and the National Assembly of Russia ought to institute permanent Commissions allowing – among others the participation of the Member States of the EU and of the Russian Republics as well as the other federal subjects to this function of information and debate. The Commission
The functions of the IRIAs ought therefore to extend to the echange of information and the dialogue with the different institutions and authorities in the European Union and the states in the measure, in the measure needed to exchange information needed to develop its institutional functions.
Among the functions to be attributed to IRIA, there ought to be the one related to the participation to the legislative function in Russia and the EU, and markedly to the legislative initiative. Such a partiicpation ought to be exercised by the intermediation of the Permanent Commissions instituted both by the European Parliament and the National Assembly of the Russian Federation. The modalities of exercise may vary in both the cases, but we may suppose that the Parliament Commission may vote over a proposal of the relevant IRIA. Such a vote may then either assimilated to the exercise of the legislative initiative, as it may be possible in the case of the Russian National Assembly, or it may give rise to the duty of a subject having power of the legislative initiative to act that in the European Union case, may be attributed to the Commission. However any solution ought to be compatible with the relevant provisions concerning the legislative function in the European Union and in Russia.
4. The protection of the existential manifestations of the person and the determination of the number and the chartered object of IRIA's . Another question that ought to be considered, is the how many IRIAs ought to be instituted and what would be the object of their activities. Their number and object may largely depend on the substantive framework of the relations between European Union and Russia, contained for example in the Road Map. However, such number may be rationalised, in order to permit to join technical tasks of information and decision, to be performed by IRIA's, with their role of support to the democratic life of the representative institutions. Such a process of rationalization ought to take into account the purpose to protect the existential manifestations of the person in the development of the relations between European Union and Russia.
We may envisage then an IRIA for the protection of the individual identity of the person, in the relationships between Russia and the European Union. Such a protection may involve, among others, the protection of the flows of personal data, that are exchanged within the development of the relations between Russia and the European Union. We may have then an IRIA devoted to protect the collective identity, which may be devoted, for example, to the issues of security. The economic issues ought to be taken into account by at least two IRIAs: one devoted to the questions related to the flow of commodities and of capitals, especially for what concerns competition rules, the establishment of enterprises and public procurements; the second economic IRIA ought to take into account the issues of the stability of the monetary flows.
Finally we envisage an IRIA dedicated to the question of technological innovation and the restructuring of the economic activities addressed to disarmament and reconvesion of the industry for peaceful means, an issue that has a paramount inportance in the development of international relation according with the substantive aspects of the rule of law that is to guarantee the protection of the basic manifestations of the existence of the human person and the fulfilment by the States and the political identities of their duties, in a way to permit the development of conditions permitting the peaceful life and dwelling of the individuals.
5. Conscious interdependence. The development of IRIAs may permit the development of the relations between European Union and Russia within an institutional framework, permitting to adequately regulate the issues of mutual interdependence. Such a framework may allow the development of such relations from the ground of the factual interdependence to the ground of a conscious interdependence.
The approach to the regulation of the relations between European Union and Russia, when regulated on the base of the consideration of the mere factual interdependence, may assume the character of a regulation „ex post“, with the purpose to limit the different phenomena of illegality and the different breaches at large that may be produced, as the most recent reflections in the filed of international law appear to indicate. Without and adequate network of IRIAs, we may not profit of the significant ground of common cultural values that are shared by the European Union and Russia. For this the development of IRIAs ought to be, in our opinion carefully studied, among others in order to develop the agreements of the Road Map and the relations between Russia and the European Union, according with the principles of rule of law and having as a purpose the legal protection of the existential manifestations of the person.
© By Pasquale Policastro, Uniwersytet Szczecinski, Faculty of Law and Administration;
ECONET, Center of Research and Advanced Training in European Constitutional Law
Moscow, MGIMO University, 26.10.2009