DECISION OF ECONOMIC COURT OF COMMONWEALTH OF INDEPENDENT STATES

of March 25, 1996 No. 11/95/C-1/4-96

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the Acting Chairman of Economic Court Tolibov of X.,

judges of Economic Court of Abdrakhmanov S. S., Apostle D.D., Begaliyev M. A., Bekenova R. A., Vylkova I. K., Kerimbayeva A. Sh., Makhmudova L. Sh., Miroshnik V. I., Simonyana G. V.,

in case of Bystrova S. I. secretary.,

with participation:

head of department of the international economic relations of the Ministry of external commercial relations of the Republic of Belarus Shikh V. A.,

General adviser of Economic Court Vorontsov V. A.,

having considered case on request of Arbitration of the Republic of Moldova on interpretation in proceeding in open court,

ESTABLISHED:

On June 16, 1993 between the Government of the Republic of Moldova and the Government of the Republic of Belarus the Free-trade agreement which became effective on December 12, 1994, after accomplishment by agreement parties of necessary interstate procedures was signed.

According to Item 1 of article 1 of this Agreement, "Contracting parties do not apply the customs duties, taxes and fees having equivalent action on export and/or commodity import, one of Contracting Parties coming from customs area and intended for customs area of other Contracting Party".

In pursuance of the specified Agreement the resolution of the Cabinet of Ministers of the Republic of Belarus of April 19, 1995 No. 218 included regulations on not collection of export duties when exporting in the Republic of Moldova of the goods coming from the Republic of Belarus (the last paragraph of Item 2).

On January 6, 1995 the Government of the Republic of Belarus signed with the Government of the Russian Federation the Agreement on the Customs union between the Republic of Belarus and the Russian Federation in which, in particular. establishment of general customs tariffs concerning the third countries is provided (the Item 2 "and" of Article 1, Item 1.1 of Article 2).

Based on this Agreement, the Cabinet of Ministers of the Republic of Belarus accepted on August 28, 1995 the resolution No. 472, which excluded from the resolution of April 19, 1995 the last paragraph of Item 2, owing to what collection of customs duties from the goods exported to the Republic of Moldova was renewed.

The above-stated circumstances were the basis of request of Arbitration of the Republic of Moldova about interpretation of application of provisions of the Agreement between the Government of the Republic of Moldova and the Government of the Republic of Belarus about free trade of June 16, 1993 in connection with collection by the Republic of Belarus of the customs duties which are not provided by the specified Agreement.

Having heard the judge-speaker Abdrakhmanov S. S., the General adviser of Economic Court Borovtsov V. A., head of department of the international economic relations of the Ministry of external commercial relations of the Republic of Belarus Shikh V. A., having researched and having estimated case papers, the Economic Court came to the following conclusions.

In the right of agreements the principle of "pacta sunt servanda" is fundamental - "agreements shall be observed". It is enshrined in fundamental international legal documents: Articles of organization of the United Nations, the Declaration on the principles of international law concerning friendship and cooperation between the states according to Articles of organization of the United Nations of October 24, 1970; The Vienna convention on the right of international treaties of May 23, 1969; The Charter of the Commonwealth of Independent States of January 22, 1993 and others.

The declaration on the principles of international law establishes: "Each state shall fulfill honesty the obligations following from the international treaties valid according to the universally recognized norms and the principles of international law". The similar regulation contains in article 26 of the Vienna convention: "Each current agreement is obligatory for his participants and shall be carried out honesty by them".

Follows from the given regulations that:

the states shall fulfill strictly the obligations, irrespective of internal and external factors;

the state has no right to sign agreements with the third states in contradiction with the obligations according to current agreements;

any unilateral termination and change of international treaties, except strictly certain cases is not allowed and only in case of observance of the established procedures;

the party in the agreement cannot refer to provisions of the internal law in reasons for failure to carry out of the agreement.

Owing to the fact that the Agreement between the Government of the Republic of Moldova and the Government of the Republic of Belarus on free trade of June 16, 1993 is the international treaty concerning it the above-stated principles are effective.

According to article 8 of the Constitution of the Republic of Belarus, the Republic of Belarus recognizes priority of the conventional principles of international law and provides compliance to them of the legislation. It is also provided in the legislation of the Republic of Belarus: if the international treaty of the Republic of Belarus establishes other rules, than those which contain in the legislation of the Republic of Belarus then are applied rules of the international treaty.

Proceeding from these basic provisions, it is necessary to state that agreement signature about the Customs union between the Republic of Belarus and the Russian Federation of January 6, 1995 and acceptance by the Cabinet of Ministers of the Republic of Belarus resolutions of August 28, 1995 No. 472 do not give the grounds for non-execution by the Republic of Belarus of the obligations to the Republic of Moldova according to the Free-trade agreement of June 16, 1993.

According to Court, the provision of Item 2 of article 8 of the Agreement between the Republic of Belarus and the Russian Federation providing obligation of Contracting Parties to bring other international agreements signed by them into accord with this Agreement in case of contradiction to the last, does not generate the right of the unilateral termination or change of the Agreement with the Republic of Moldova at the Republic of Belarus.

In the Vienna convention (Articles 60, of 61, of 62, of 64) the exhaustive list of the bases allowing the agreement party to require its termination, any of which in this case does not take place, contains. But also in the presence of such bases the Government of the Republic of Belarus would shall, according to the Vienna convention (Article 54, of 65), to perform the procedure directed to cancellation of the Agreement with the Government of the Republic of Moldova (which is provided also in article 19 of this Agreement).

Similarly, change of this Agreement can be made in case of observance of certain conditions and only as a result of negotiations between the Government of the Republic of Moldova and the Government of the Republic of Belarus (article 39-41 of the Vienna convention). At the same time the basic from these conditions is the following: the agreement can be changed only under the agreement between his participants.

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