Таможня и Наука

Sergey Moser

Aspirant of the Russian customs academy

The Bulletin of the Russian Customs Academy. – 2008. – № 2 (3). – p. 98-102.

Problems of settling regional conflicts in the post-Soviet space, concerning subjects which do not possess international legal personality are topical recently. On the one hand, the international arbitrators and the participants in disputes involved in multilevel conflict-settlement process call to consider separately each case on the basis of observance of the principles of international law and the international norms; on the other hand, the same persons continue to adhere to a policy of double standards. In opinion of the majority of the experts in conflict settlement, the case of Transdniestrian Moldavian Republic has not become an exception.

Lack of objective information and analytical materials concerning the topic of administrative-legal regime of the customs activity of Transnistria, causes some difficulties in objective positioning of the situation among the experts involved in conflict settlement of an economic constituent of Transnistrian issue. It becomes evident especially sharply in the course of the consultations and working meetings with Russian, Ukrainian and Western colleagues, including representatives of the customs services, the international organizations competent for matters of export-import administration.

Let’s note that the actuality of the research of the regime of the customs activity of Transdniestria is determined by the fact that at the present time there is no analysis of the legal and organizational-technical measures implemented towards export-import transactions of the Republic including in a context of international customs and commercial law, the international precedents. The problem is that in contravention of the norms of international economic law the application of unilateral measures of economic and administrative pressure against Transdniestria is continuing. Moreover, today there are no any fundamental researches of the problem of Moldavian-Transdniestrian customs issue, as well as objective international-legal analysis of economic and customs confrontation in Transdniestrian region.

The majority of the experts in Transdniestrian conflict settlement do not have systematized materials concerning customs problematic, and scientific circles are not practically informed about peculiarities of the situation in Transdniestrian Customs.

Unfortunately, failing the scientific systematized investigation of administrative-legal regime of the customs activity of Transdniestria, as well as the analysis of administrative-legal approaches to conflict settlement of the same character, customs situation in the framework of negotiation process between the Republic of Moldova and Transdniestria remains frozen. There is nothing for it but to state the lack of expert initiatives and practical proposals relating to conflict-settlement.

In order to understand the specifics of the regime of the customs activity of Transdniestria it is necessary to consider the background and competence of Transnistria to carry out separately foreign trade activity, to analyze the core elements of Moldavian-Transdniestrian customs confrontation, to carry out legal analysis through the prism of international customs, commercial law of national legislations of Transdniestria, Moldova and Ukraine as the state-guarantor of Transdniestrian conflict settlement, bordering Transdniestria and supported in 2005 unilateral actions of the Republic of Moldova in spite of the earlier achieved agreements in the framework of negotiation process.

For the last few years confrontation of the Republic of Moldova and Transdniestria has spread from the information – diplomatic area to the social — economic one, the sharp conflict escalation has occurred. In order to understand an implication of the facts it is necessary to remember that Transdniestria on the left bank and Moldova historically named Bessarabia on the right bank differ not only in ethnic composition, historical traditions and culture but also in economy.

Right bank area is mainly engaged in production, processing and exportation of agricultural products. Left bank area has the large-scale industrial enterprises remained from Soviet times, whose exportation activity fosters job creation and ensures state budget formation of Transdniestria. Historically Transdniestria has never been the part of independent Moldova.^[1] And what is equally important — at the present time about 100 thousands citizens of the Russian Federation are resident in the territory of Transdniestria.

For economic diplomacy, involved in Transdniestrian conflict settlement process, one of the reference points is the definition of the right of Transdniestria to carry out separately foreign trade activity and as the result – to carry out the authority to clear separately Transdniestrian cargoes.

In opinion of Transdniestrian side, the fundamental instrument concerning this issue is the Memorandum on the Basis for Normalization of Relations between the Republic of Moldova and Transnistria of 08.05. (the Moscow Memorandum), which fixed the right of Transdniestria to establish and maintain unilaterally international contacts in economic sphere. ^[2] The Russian side adheres to the same position.^[3]

The Protocol Decision on Settlement of Problems Arisen in Activity of Customs Services of the Republic of Moldova and Transdniestria of 07.02.1996 dotted all «i» in determination of the competence of Transdniestria to carry out separately customs clearance of Transdniestrian cargoes. This Decision was agreed by the Presidents of Transdniestria and the Republic of Moldova, representatives of the states-guarantors in Transdniestrian conflict settlement – Russia and Ukraine, and the mediator in negotiation process – OSCE Mission to Moldova. This document was also signed by the Heads of Customs Services of Moldova and Transdniestria.

The importance of the Protocol Decision consists in the following: on the one hand it presumes free and duty free flow of cargoes, directed to Moldova and Transdniestria from far foreign countries and Baltic States; on the other hand it fixes the right of Transdniestria to carry out separately customs clearance of Transdniestrian cargoes by customs seals and stamps of the established form.

Thus, the accent made by Transdniestrian and Russian experts on the Moscow Memorandum should not be considered as a particular novel, specially created for Transdniestrian region in order to empower Transdniestria to carry out separately foreign trade transactions. Free movement of goods is a usual principle of international practice.

For instance, norms of international commercial law, particularly, commercial regulations established in the framework of the World Trade Organization, are based on the non-discrimination principles in respect to foreign goods, as well as non-use of nontariff barriers. This means that no actions and decisions, including those made by state authorities, should create artificial obstacles to international trade. The state has the right to forbid circulation of any goods for reasons of public order or on the ground of essential interests concerning security.^[4]

As regards the Ukraine’s ban on transit of Transdniestrian cargoes through its territory without Moldavian customs identification contrary to the early achieved agreements, it makes sense to note that presumption of free transit, fixed by national legislation of Ukraine (The Law of Ukraine “On Cargo Transit”), by CIS customs legislation, is inviolable from the position of international law as well as customs legislation of far and near abroad countries. But it is not connected with ban on transit without customs identification.

In this context we can refer to the article V of the General Agreement on Tariff and Treatment (GATT) of 1947, in compliance with which there shall be freedom of transit through the territory of each contracting party; no distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport. With respect to all charges, regulations and formalities in connection with transit, each contracting party shall accord to traffic in transit to or from the territory of any other contracting party treatment no less favourable than the treatment accorded to traffic in transit to or from any third country.

In this connection, to doubt or to prove strongly the competence of Transdniestria to carry out separately export/import transactions based only on the fact that it was presumed by the Moscow Memorandum is an unproductive work. The more unproductive was the position of Moldova itself which considers that export/import transactions of Transdniestria have to be carried out in strict accordance with Moldavian legislation.

It should be noted that regardless of whether the country of origin of goods is the territory of Northern Cyprus, Taiwan or Transdniestria, under the international law and international practice no actions can artificially prevent its free transit through the customs territories.

The objective solution of the situation connected with customs regime of Transdniestria, has to be based on the early achieved agreements of negotiation process, that is why it is interesting to carry out the analysis of various Moldavian-Transdniestrian economic agreements.

Adhering to this position it is necessary to note that before the signing the Moscow Memorandum Transdniestrian, Moldavian and Russian sides have adopted a range of high level agreements forbidding any restrictions of economic character. In particular, it concerned impermissibility of any sanctions and blockades, immediate elimination of any obstacles in the way of movement of goods, services, people. Moreover, in the statement of 28.04.1994 the leaders of Moldova and Transdniestria have expressed the adherence to the generally recognized principles and norms of settlement of controversial issues solely by negotiations and peaceful means on the basis of mutual understanding and mutual consent, excluding unilateral actions in relation to each other.

The fundamental importance of the Moscow Memorandum as the juridical basis for settlement of Transdniestrian issue was emphasized by Moldavian side in the course of registering terms of entry of Moldova to the WTO. The followed later unilateral deviation of Moldova from the basic provisions of this document, confirming particularly the right of Transdniestria to carry out separately foreign trade activity, has led to raising of mistrust between the sides in a conflict and practically blocked the negotiation process with participation of Kishinev and Tiraspol.^[5] (Appendix 5).

According to the special representative of the Ministry of Foreign Affairs of Russia, ambassador at large V.Kenyaikin, in March 2006 Ukraine and Moldova started economic blockade of Transdniestria contrary to those agreements achieved between the sides 10 years ago. The Russian expert considers that events taking place can be regarded as the establishment of “constitutional” order, reintegration of the country, fulfillment of international requirements in the framework of the World Trade Organization and Moldavian-Transdniestrian agreements, but in substance the only one task is solved: to force Transdniestria by economic means to political surrender.

Of course, there are some impartial statements and positions concerning administrative-legal regime of the customs activity of Transdniestria, but at present none of the participants in foreign trade activity of Transdniestria can export or transit goods through the territory of Ukraine without customs identification of the Republic of Moldova.

For the first time during the last seven years on 11 April 2008 the meeting between the President of Transdniestria I. Smirnov and the President of the Republic of Moldova V. Voronin has been held. As experts comment, this meeting has become a breakthrough in relations between the Republic of Moldova and Transdniestria, but currently the vital problem of Transdniestria concerning the right of Transdniestria to carry out separately foreign trade transactions is not the essential item for the most “players” in Transdniestrian conflict settlement, and artificial barriers on the way of Transdniestria export are still restraining trade potential of the region.

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