Keywords

JEL Codes

1 Introduction

On inclusion of the digital agenda in contemporary integration processes.

Regional integration becomes an active trend of interstate interaction at the end of XX and the beginning of XXI centuries. In particular, it is reflected in an exponential increase in notifications of regional trade agreements to WTO (RTA Database, WTO, 2021). Not all of them are institutionalized organizations with an advanced level of integration, however, in every part of the world, there are integration projects of different levels of intensity and success (Mikhaliova, 2016).

The notion “integration” derives from the Latin “integratio” meaning a provision of integrity, restoration of integrity and, further on, from the initial form of “integer” as something whole, perfect, complete, cohesive. In the Grand Russian Encyclopedic Dictionary, integration is defined as a state of cohesion of different differentiated parts and functions of the system, organism in the whole, as well as a process, leading to such a state (Grand Russian Encyclopedic Dictionary, 2008).

Interstate integration is defined as a process provided with international legal instruments and directed to the gradual formation of interstate economically and, possibly politically common, cohesive (integro) area, based on a common market of goods, services, capital, and labor (Velyaminov, 2015). Freedom of movement of these factors reflects economic and legal characteristics of interstate integration provided for in almost all founding treaties of regional integration unions (e.g., para.1 art. 2 of the Treaty on the Eurasian Economic Union, para.2 art. 26 of the Treaty on the functioning of the European Union).

The common market building would not be comprehensive without digital agenda included in the legal and organizational system of integration associations in a contemporary world, as well as it would be ineffective. The pervasion of digital technologies and primacy of informative and communicative element in all current relations influences the formation of the strategy and agenda of integration associations. So, Digital Single Market Strategy was released in the EU in 2014, 7 years after the Lisbon Treaty.

The digital agenda of the Eurasian Union started in 2016, less than 2 years after the signing of the Treaty on the EAEU. It was December 2020, in the First Eurasian Congress, when the Prime Minister of the Russian Federation proposed to add to 4 freedoms one more freedom of movement of information. Currently, a set of activities on the formation of the Single Digital Area is proposed. Worth noting, readiness to the digital transformation of the economy, and social relations were inserted in the founding treaty and other acts from the very beginning. It can be read between the lines and in the context of general and special provisions notwithstanding the fact that directly the Treaty on the EAEU refers only to the concepts of informative provision of integration processes and information interaction.

2 Materials

Normative and legal basis for the research comprise of the Treaty on the Eurasian Economic Union, Protocol on Information and Communication Technologies in the frames of the Eurasian Economic Union, a range of program acts, projects, strategies of the Union`s development in the context of digital transformation, sectoral acts of the Union`s organs.

The theoretical basis of the study on the information and network transformation of economy, society, generally, refers to the works of Castells (2000). The current research is correlated to the theory of interstate economic integration proposed by Velyaminov (2015) and develops some theoretical conclusions made in the monograph of Mikhaliova (2016). The conceptual framework is investigated in an interdisciplinary context, including by referring to the positions of Nikulina and Starichenko (2018), Inshakova et al. (2020), Matytsin, and Rusakova (2021).

Prospects of the creation of the Single Digital Area in the EAEU are stated by the Eurasian officials, e.g., Sarkisyan (2021), therefore intensifying the necessity of the scientific development of the topic.

Articles and presentations of Khabrieva (2018), Khabrieva and Chernogor (2018), Talapina (2018), Ovchinnikhova and Zor`kin (2018), E. Ermakova et al. (2021) are dedicated to the challenges to the law in the digital age.

Scientific research on economic globalization based on the experience of developed and developing countries has been studied (Zankovsky et al., 2020).

The political and legal context of the EAEU digital agenda are analyzed by Shughurov (2020). Peculiarities of information interaction in the EAEU customs sphere are analyzed in the articles by Novikov and Roghozina (2018), Sablina (2018).

The conclusion on the necessity of the common and agreed policy for the realization of the Union`s digital strategy is made based on general theoretical approaches on the types and methods of legal regulation in the integration community.

3 Methods

Methodology of the research is based on the content analysis of primary and secondary sources, understanding correlations and concept analysis, leading to doctrinal and applied conclusions and suggestions to improve the legal regulation currently in force and to develop a theory of integration and digital cooperation.

4 Results

4.1 On the Concepts “Informatization”, “Digitalization”, “Digital Transformation”

In the doctrine, it is rightly pointed out the difference of the concepts of “informatization” and “digitalization”, based on the analysis of economic, legal meanings, ontology of information, and digital contexts (Nekrasov, 2018; Kazakov, 2019; Prokudin, 2020). Some researchers use them as synonymous or similar (Shabayeva, 2019). In a foreign doctrine, attention is drawn to the difference between “digitalization” and “digitization” (Wagner and Ferro, 2020). Unlike the former, which means progressive use of digital technologies and digital information leading to the changes in the functioning of things and social context, the latter is only the transfer of the data from analogous to digital format.

A range of scientists points out the inclusion of the issues of informatization to digital processes, a kind of transfer from informatization to digitalization (Nikulina and Starichenko, 2018). A. Paulin, vice versa, estimates digitalization as a process, which precedes the informatization of society (Paulin, 2018). Digitalization, in his opinion, reflects the current development of society, technologies, and the concept of Economy 4.0 as such. At the same time, informatization and following informatized management will be applied broadly in all spheres and sectors in the nearest future, but it is still not.

According to the Belarusian Standard STB 2583–2020, “Digital transformation Terms and definitions” entered into force on March 1, 2021 “digitalization” is a new stage of automatization and informatization of the economic activity and public administration, the process of transfer to digital technologies, which is based not only on the use on information and communication technologies for the production or management tasks but also accumulation and analysis of Big Data with its help and situation synopsis, optimization of the processes and costs, the attraction of new partners, etc.

Digital transformation is a reflection of qualitative revolutionary changes, which manifest not only in particular digital converting, but also in general reform of the structure of the economy, transfer of the centers of added value into the sphere of digital resources and end-to-end digital processes.

Digitalization affects all public and private spheres, therefore we can claim “the digital imperative of development” (Ovchinnikov and Fatkhi, 2018, Ovchinnikov, 2018). Indeed, digitalization and digital transformation become an indispensable part of the state programs, concepts, economic strategies. These processes took a stable place in the development of society, also by the reason of its special significance for the transfer to the 6th technological order.

Doctrinal comprehension of how the productivity and competitiveness of factors of production, economic actors in any form depending on the ability to generate, process, safely, and efficiently use information based on knowledge, began at the end of the twentieth century (Castells, 2000).

Today digital technologies, the translation of business processes online, the Internet of Things, E-government, artificial intelligence, and many other achievements of digitalization have become regular. There are also new tasks of a derivative order, e.g., access to digital public goods, distribution of responsibility for Internet administration and security (UN General Assembly Resolution A/C.3/74/L.11 “Countering the use of information and communication technologies for criminal purposes”).

However, the main issue is that the construction of new relationships leads to the most important transformation, namely the emergence of cyber-spatiality. The digital component moves from a factor that mediates reality and influences it, into its determining one. Digital reality as a qualitatively new type of relations is only revealing itself to us (Khabrieva and Chernogor, 2018). Accordingly, a new law is emerging and this is the “law of the second modern”, which regulates various kinds of relations in the context of digital reality, Big Data, robotic systems, and artificial intelligence (Zor`kin, 2018).

4.2 On Information Interaction in the EAEU

The Treaty on the EAEU was created as a consolidation of the already achieved integration results and as a new stage of development, the transition to an economic union in its classical sense. Nevertheless, one cannot fail to note the significant presence of provisions on information support for integration processes already in the initial text of the Treaty on the EAEU (art. 23). In this article and the Protocol on Information and Communication Technologies and Information Interaction in the Eurasian Economic Union (annex 3 to the Treaty, hereinafter the Protocol on Information Communication Technologies), the principles of information interaction “in the implementation of general processes within the Union” were envisaged, and the policy in the field of informatization and information technologies was brought to the rank of an agreed policy. These provisions require some clarification.

According to clause 2 of the Protocol on Information Communication Technologies, “general processes” are “operations and procedures regulated (established) by international treaties and acts constituting the law of the Union, and by the legislation of the member states, which begin on the territory of one of the member states, and end (change) in the territory of another member state.” The list of general processes within the Union is determined by the Decision of the Board of the Commission dated April 14, 2015, No. 29 and includes 76 positions in 18 areas of information interaction, including in the field of interaction of customs authorities, on the protection and protection of intellectual property rights, in the field of circulation of medicines and medical devices, technical regulation; application of veterinary and sanitary measures; transport (automobile) control; production and circulation of agricultural products; competition policy and state (municipal) procurement; ensuring electronic document flow between the member states of the Eurasian Economic Union and Eurasian Economic Commission, and others.

On a number of these issues, for example, on tariff and non-tariff regulation, technical regulation, sanitary and phytosanitary measures, and some others, the Union law establishes a requirement for a unified policy of sectoral regulation. Uniform policy according to Art. 2 of the Treaty on the EAEU presupposes the application by the member states of unified legal regulation, including based on decisions of the Union bodies.

In the advisory opinion dated April 4, 2017, the EAEU Court formulated a legal position that classifies a certain area as a single policy, it is necessary to comply with the following conditions: (1) the presence of unified legal regulation; (2) the transfer by the member states of competence in this area to the bodies of the Union within the framework of their supranational powers.

All issues of information interaction, which in the modern world are often decisive for achieving an effective and operational result, are de jure referred to as a coordinated policy in accordance with paragraph 3 of Art. 23 of the Treaty on the EAEU. The agreed policy presupposes the harmonization of legal regulation, that is, the approximation of the legislation of the member states aimed at establishing similar (comparable) regulation (art. 2 of the Treaty on the EAEU).

This discrepancy between the unified standard of substantive regulation and information potential hinders the development of integration. Obviously, in the areas related to a single policy, it is necessary to establish a single policy regarding their information support. Without a Single Information Area based on the unification and standardization of the information process, the exchange of information will not be effective enough (Nemirova & Vinichenko, 2017).

Moreover, there is an understanding of this at the level of implementation of general processes. Thus, information interaction during the implementation (through the integrated information system of foreign and mutual trade) of the general process “Formation, maintenance and use of a unified register of pharmaceutical inspectors of the Eurasian Economic Union” is regulated within the framework of a single policy by adopting the relevant Decision of the Board of the Eurasian Economic Commission dated October 25, 2016, No. 127, approving the rules, regulations for information interaction, a description of the formats and structures of electronic documents and information used for implementation through an integrated information system of the external and internal trade of the relevant common process, the order of accession to this common process.

The process of preparing similar acts in other areas of general processes indicates a general trend of unification rather than harmonization of information interaction. At the meeting to agree on technological documents governing information interaction when ensuring transport (automobile) control at the external border of the EAEU (rules, regulations, etc.), the parties pointed out the need to fix requirements for some information procedures at the level of acts of direct action, for example, entering notifications into the database.

Thus, in practice, those areas of information interaction that requires a unified approach from the point of view of the subject of regulation are also regulated uniformly, based on the norms of the direct action of acts of the Commission. De jure, however, the EEU Treaty still enshrines a general rule on an agreed policy in the field of information interaction. Therefore, there is a need to amend the Treaty on the EAEU by clarifying the provisions of clause 3 of Art. 23 so that with those issues on which a unified policy is being pursued, the unified regulation of information interaction is also indicated.

4.3 From Informatization to Digitalization

Unlike “informatization”, the term “digitalization” is not used in the Treaty on the EAEU and its annexes. Nevertheless, based on the text of the Treaty, we can conclude that the elements of a digital society are used in the constituent act of the Union, including in terms and definitions. Thus, the Protocol on Information and Communication Technologies regulates many issues of electronic document management, the use of electronic digital signatures.

These aspects are an integral part of building cyber-social accounting systems at any level (Domrachev et al., 2016). The introduction of cyber-social systems represents a new stage in the development of Industry 4.0 and is critical for innovation and competitive advantages (Karlik et al., 2019).

In addition, the Treaty contains another concept of “cross-border space of trust” that is important for building a digital society within the framework of an integration association. The formation of a space of trust is intended for the free exchange of data and electronic documents, the security of information and telecommunication networks, and information security (Inshakova et al., 2020).

The functioning of the cross-border space of trust is ensured following the Concept for the use of services and legally binding electronic documents in interstate information interaction, approved by the Decision of the Council of the Eurasian Economic Commission of September 18, 2014, No. 73, the Strategy for the development of the cross-border space of trust, approved by the Decision of the Board of the Eurasian Economic Commission of September 27, 2016, No. 105, Regulations on the exchange of electronic documents in cross-border interaction of public authorities of the member states of the Eurasian Economic Union between themselves and with the Eurasian Economic Commission, approved by the Decision of the Board of the Eurasian Economic Commission dated September 28, 2015, No. 125, by the Decision of the Council of the Eurasian Economic Commission dated December 5, 2018. No. 96 “On the requirements for the creation, development, and functioning of the transboundary space of trust.” Analysis of this segment of documents shows a high level of legal elaboration of the architecture for the construction and functioning of the transboundary space of trust at the supranational level. An important part of the success of this area of information interaction will be the proper implementation of the requirements contained in these acts in the national segments of the integrated information system, especially in terms of data protection and security.

It is worth to be noted, that some definitions in the Protocol on Information and Communication Technologies are broad and complex. For example, “information protection” is regulated as “the adoption and implementation of a set of legal, organizational, and technical measures to determine, achieve, and maintain confidentiality, integrity, and availability of information and its processing facilities in order to eliminate or minimize unacceptable risks for subjects of information interaction.

This definition simultaneously contains the principles of information circulation, the foundations of information security, and the unity of the categories of social (information) and physical (means of processing) context. It seems quite apt to formulate infrastructure components in the Treaty and the Protocol within the framework of building a cross-border space of trust.

We see such a perception of the text of the Treaty and its annexes as laying the basic constants for the further development of the Union in the context of digitalization that is most in line with the interests of the parties and the integration association, since, as noted above, the promotion of market freedoms is impossible without the creation of unified information and communication networks, and the high dynamics of digital relations highlights the combination of flexibility of technical regulation and stability of the fundamentals. Thus, in the context of the development of the concept of digital sovereignty, the principle of sovereign equality of states, laid down in the EEU Treaty as the basic principle of integration, acquires new directions of implementation, but does not change its essence. At the same time, the formation, for example, of common protocols for the security of the use of information and communication technologies, the protection of personal data can and should be carried out promptly and in a unified manner, which requires an active law-making position of the Commission. The idea of the need for the “advanced effect” of law in the era of digitalization and the role of the principles of law in this (Shafalovich, 2020) in integration association has its application.

The Treaty acquires special significance not only in two traditional directions of its interpretation and application—as a constituent act of the organization, institutionalizing the foundations of integration (institutionalizing function of the Treaty), and as a regulator of the single market (regulatory function of the Treaty), but also as an act that determines the vector of interaction in the integration space (predictive function of the Treaty). In this case, the role of the EAEU Court and the dynamic interpretation of Union law increase.

The digital potential of the EAEU is revealed not only through the intensification and transformation of the internal market, but also the possibility of “creating a global logistics corridor between Europe and Asia”, in relation to which it will be effective to be comparable with the formats of UNCITRAL and others (Domrachev, 2016). Digital globalization as a new stage of globalization (Golovenchik, 2019) can and should be based on regional unions.

Thus, the Treaty provided for the legal and organizational basis for creation of a Single Digital Space, which is autonomous and secure inside and coherent with external systems. It made it possible to reach a common digital agenda in a short time.

4.4 On the Digital Agenda of the EAEU and a Single Digital Space

The adaptation of existing law to new digital relations is possible, but one cannot do without creating new norms (Talapina, 2018). This thesis fully applies to integration law.

It is not entirely possible to agree with the conclusion that “a specific feature of the EAEU model is the allocation of directions and priority initiatives as the basis for the development of public–private partnership projects,” an aspect of which “is the political and legal model of integration”, enshrined in the relevant digitalization tools (Shugurov, 2020). The software method is used in various forms and other integration associations. For example, the EU also uses strategic planning, the development of common priorities, the method of open coordination (Strategy: the European Commission`s Priorities).

What could become innovative from the point of view of legal forecasting and program-strategic planning, especially in the dynamic digital era, is the systemic short-, medium-, and long-term setting (and adjustment, if necessary) of goals and objectives.

At the moment, some key strategic acts on the digital agenda are in force: an action plan for the implementation of the main directions of the development of the single-window mechanism in the system of regulation of foreign economic activity, approved by the Decision of the Supreme Eurasian Economic Council dated May 8, 2015, No. 19, Main directions of the implementation of the digital agenda of the Eurasian Economic Union until 2025, approved by the Decision of the Supreme Eurasian Economic Council dated October 11, 2017, No. 12, the Concept of cross-border information interaction, approved by the Decision of the Eurasian Intergovernmental Council dated August 9, 2019, No. 7.

In the Decision of the Supreme Eurasian Economic Council dated December 11, 2020 “On strategic directions for the development of economic integration until 2025”, direction 5 is devoted to the formation of the digital space of the Union, digital infrastructures, and ecosystems, and includes nine main segments of digital transformation: traceability of goods in the EAEU, cross-border trust space, and electronic document management, the integrated information system of the Union, digital ecosystems (including data circulation, personal data protection), digital transformation in the field of intellectual property, e-commerce, external digital agenda, increasing the technical support of digitalization (unimpeded Internet traffic) and improving mechanisms for developing initiatives and implementing projects.

Analyzing these tracks of digital transformation, it should be noted, on the one hand, their complexity (from technical equipment to unified information systems), but on the other hand, their trade and economic nature, in general. The actively developing Union must also be perceived as a new information space (Tarakanov et al., 2020). The emergence of a new information space requires systemic anti-entropic mechanisms, primarily axiological, value attitudes. At the Yalta conference, held annually by the International Affairs magazine, in 2017, the idea was voiced about updating the common historical memory and the importance of managing information flows, for creating a positive image in the mass consciousness, the attractiveness of the EAEU member states, including outside, in the international arena.

From the point of view of digitalization, the issue of expanding the information presence, positive “branding” of the Eurasian integration project is seen in the creation of its domain of the first (top) level. All official sites are currently hosted on the “.org” domain—eurasiancommission.org, courteurasian.org. This first-level domain is used by the most international organizations and generally appears to be convenient and reasonably secure.

However, from the point of view of defining Eurasian interaction as going beyond classical international cooperation to create a supranational integration project, with its development paradigm, strategy of internal and external positioning, i.e., creation of a Eurasian “brand”, the transition of Eurasian actors (official union bodies, additional integration non-governmental organizations, legal entities and individuals-residents of the EAEU, etc.) can become a strong argument for the progress of Eurasian integration, the implementation of the Single Digital Area.

The question of registering the top-level domain.EA in ICANN, by analogy with the European Union domain.EU, was discussed in 2014, but the idea was not implemented. Of course, when registering such a top-level domain, it will also be a question of the Union itself being the administrator of such a domain, which will require endowing its bodies with special competence in this area, which is, reaching appropriate agreements between the member states. Accordingly, the EAEU will be able to establish rules for users, including such that sites and resources are located on servers within the territory of the Union, etc.

It should not be forgotten that from the point of view of international economic law, and it is integration associations that can (this is their purpose, in fact) avoid conditions of the most favored nation for third countries in those positions where they provide member states with more favorable conditions for mutual trade (Matytsin & Rusakova, 2021). Moreover, they can impose restrictions on foreign trade based on the interests, threats, and risks for the integration association.

According to T. Sargsyan, Deputy Chairman of the Management Board of the EDB, if at first, the EU limited itself to supporting its own companies and ecosystems, then in the last year it has embarked on the path of building an obvious system of restrictions for digital corporations: the European Data Strategy and the draft act on digital markets 2020 are examples of such a system (Sargsyan, 2020). Similarly, there is every reason in the Eurasian region to combine the development of freedom of movement of information and digital resources with a strategy for protecting the information and digital Union from the outside.

In the EAEU digital agenda, digital transformation is positioned as an integration driver, and therefore, with the further analysis of clause 5.4 of the EAEU Development Strategy in the implementing acts of the Commission, international treaties within the Union, close attention should be paid to cross-industry solutions and the construction of digital ecosystems. This trend is a general characteristic of the digital age, but concerning integration, it is especially important, since it is capable of multiplying (the spill-over effect).

The digitalization of various sectors of the economy on the scale of an integration project should be accompanied by the maintenance of transparency and accessibility of integration resources, the creation of unified information and telecommunication networks, and the ability to use them for citizens and residents of the Member States, individuals, and legal entities. With the introduction of the institution of single citizenship of the Union, which, as we believe, is necessary for further building the EAEU; it is advisable to consolidate uniform digital rights and obligations for citizens. At the same time, it is possible to start working out and consolidating digital rights and obligations (we emphasize, only in such an inextricable connection, since great opportunities for digitalization also give rise to great threats) already now at the level of the Commission.

When designing the Single Digital Space, it is necessary to provide for the provision of electronic services by the integration bodies to individuals and legal entities. By analogy with the G2B and G2Px processes (elements of e-government), it is advisable to create digital communications in the procedures between the bodies of the integration association and business, as well as citizens. These will significantly “bring closer” different actors of integration. It will make the integration system a multisubject polycentric network model—the most effective type of building socio-systems in the modern world according to M. Castells.

Thus, the procedures for applying to the EAEU Court should gradually be brought to a digital standard (for example, sending by electronic means of communication any procedural documents, using an electronic digital signature) with a step-by-step reduction to more complex elements of electronic justice (for example, creating electronic offices and administering legal proceedings with the use of technology, the introduction of telecommunication technologies at various stages of the administration of justice).

These and any other issues of digitalization of the activities of the EAEU bodies require careful planning and legal support, starting from the inclusion of relevant provisions in the acts of the Union's primary law and ending with technical legal acts. A uniform and ultimately unified regulation of data circulation in the EAEU is necessary. Minister for Internal Markets, Informatization, Information and Communication Technologies of the Eurasian Economic Commission G. Vardanyan during the panel session “Digital agenda in the EAEU Strategy until 2025”, which was held as part of the digital forum in February 2021, said that it is necessary to define clear approaches to the separation of data, what it is advisable to exchange within the framework of integration processes, and what information should be stored exclusively in the Member State, as well as to develop mechanisms for ensuring data security (for example, anonymization) that can help expand the list of types of information for exchange. Assessing this from a legal point of view, within the framework of the competence of the Union and the Member States currently provided for in the Treaty and possible legal instruments of interaction, it could be done in the form of an international treaty within the Union. In future, it is advisable to refer this competence to the sphere of a unified policy and to adopt an appropriate act of direct action of binding legal force—for example, a decision of the EEC.

Back to the beginning of the study, the designation of the main concept of any successful integration as freedom of movement of certain factors, which classically include goods, services, capital, labor force and to which freedom of movement of information is added in the modern era. However, it is possible to do some generalization of a higher order: effective interstate integration is associated with the freedom of movement of development resources, and in future, these resources are largely associated with digital transformation, including the creation of socio-digital networks.

5 Conclusion

The digital era allows us to bring integration closer to the large population of the Eurasian Economic Union, to make its institutions understandable, to create a truly “area without borders” for trade, communication, security, while preserving national identity and sovereign rights. The expansion of the digital competence of the Union is relevant in areas where legal regulation takes place in the direction of unification. Harmonization of the information interaction in other spheres is also necessary. The great opportunities of the Digital Age also give rise to challenges in security matters, ethics, and protection of all subjects of legal relations. It requires operational regulation with the involvement of expert potential at the Union level, as well as harmonized organizational and legal mechanisms for implementing responsibility in case of violation of the established rules. The digital agenda of the EAEU is wide enough, but these are only the first steps toward digital transformation. The formation of a predictive scientific concept for the development of the Union in the digital era will make the Eurasian integration project effective, long-term, and sustainable.