Regulation of the Concept of "Electric Energy Power" in Acts of International Law and Decisions of International Judicial Instances

Korovin Evgenii Sergeevich Postgraduate Student, Department of International Law, Russian State University of Justice 117418, Moscow, Novocheryomushkinskaya st., 69 a74920@yandex.ru

The energy (multidimensional and multi-level) sector is one of the rather dynamically developing spheres of activity and economy of every modern state. In this connection, the need to ensure the balance of energy, including electrical energy, in its moderate reasonable consumption, and as a consequence, in guaranteeing energy security, are the most important tasks and directions of state legal regulation. At the same time, since relations in this sphere are also formed between energy companies of different countries (international private relations), between individual states, as well as states and various international organizations, states and interethnic integration conglomerates (within the framework of international public legal relations) ^{[1, p. 10]}, international regulation is no less important, including the actual sphere of the conceptual apparatus in the field of electric power.

The importance of unifying the concept of "electric energy (power)" in international sources is also due to:

- the globalization of the international economy, which has affected the electric power industry, the formation of interstate electric power relations, the prospects for the formation of a global energy union;

- the special importance of the unification of legislation as a legal instrument for the convergence of standards of individual countries, which has a focus on the formation of identical legal mechanisms for the regulation of relevant spheres of public relations;

- the essence of energy as such (the term "energy", philologically derived from the Greek word "energeia" is a collective phenomenon characterized by appropriate forms (electrical and electromagnetic, nuclear, thermal and mechanical, chemical and gravitational, etc.), as a substance (potential of a certain temperature and motion, as well as work and interaction) ^[2], associated with the possibility under the created conditions of certain microparticles of matter to achieve the desired result, mediated by the transformation of elements of the micro and macrocosm, and matter as a whole) ^{[3, p. 114]}.

- awareness of energy from a legal position, as a quantitative measure of various forms of movement of matter and the quality of matter, to carry out useful work as an object of civil legal relations, a special type of commodity that objectively, due to physical properties, does not directly relate to things and property rights, but is an intermediate object legal category ^[4];

- the peculiarities of any type of energy, in particular, electrical energy, as a special energy of electric current in its various forms distributed in an electromagnetic field, and as a special commodity, distinguished not so much by direct power, as by laconism, and a specific empirical property, special legal qualities;

- the need to establish special national regulatory rules due to the supply of electricity through the use of a certain network, corresponding to the generally recognized norms of international law regarding the unification of not only general principles and requirements, regimes and procedures, but also the conceptual apparatus;

- the circumstance by virtue of which the unification conceptual apparatus in the field of regulation of the concept of "electric energy (power)" in acts of international law is designed, in order to ensure energy security, to equip to a large extent the identity of national legal regulation by including textually similar categories and their definitions in the sources of law to the maximum extent ^{[5, p. 191]}.

It seems important, at the same time, to take into account: due to the special significance of the above, international law, representing a specific legal system, includes in its content (system) several branches of law, including international economic law, which, in turn, is characterized by the presence of a special sub–branch - international energy law regulating important relations in particular, in the field of electric power.

Since the technological specifics of electricity necessitates the creation of a special legal regime for electricity trade and ensuring global, national security, international legal regulation of the electric power industry and the formation of a conceptual apparatus (in particular, the concept of "electric energy (capacity)"), represents a complex and specific activity of international organizations, states (within the framework of bilateral, multilateral agreements), based on the leading sources of international law. The system of these sources consists of: the Charter adopted within the framework of the United Nations ^[6], the Declaration including the interstate basic principles ^[7], the Vienna Convention on the International Sale of Goods of 1980 ^[8], the Energy Charter Treaty (and the Charter itself) and the corresponding correlating documents ^[9], a number of other leading interstate sources of law.

The formation and development of legal regulation, the creation of a conceptual apparatus in the field of electric power industry is carried out both in the countries acting as participants of the Eurasian Economic Union (EAEU) ^[10], and the Commonwealth of Independent States (CIS), other international communities, as well as at the level of multidimensional interstate (bilateral and multilateral) agreements.

Thus, in the international Agreement on the formation of a common electric power market of the member states of the Commonwealth of Independent States in 2007 ^[11], electric energy (capacity) is defined as a specific type of product that is characterized by such qualities (properties) as the simultaneous nature of production itself, as well as energy consumption, and which requires the maintenance of a constant, continuous state appropriate technical parameters within the established limits.

At the same time, other international documents of the Commonwealth (CIS) in the designated legal sphere do not contain a definition of this category, defining it, among other things, as an object of coordination of relevant international economic relations in the field of electric power. Such a legal position is reflected, in particular, in the CIS Coordination Agreement of February 14, 1992 ^[12], in the Concept of Cooperation in the Energy Sector of the CIS member Countries in 2018. This approach is reflected in many bilateral interstate contractual structures, in particular, in the Agreement between the Governments of Russia and the Republic of Azerbaijan on Measures to ensure the parallel operation of the Unified Energy System ^[13].

In the Interstate Agreement aimed at ensuring parallel activities of electric power conglomerates of the member countries of the Commonwealth of Independent States (1998) ^[14], (in the absence of a definition of the category "electric energy (capacity)") such a concept as "electric energy flows" is included. The term is interpreted in this document as the amount of this type of energy that is transported, by virtue of an agreement, between simultaneously operating electric power technical systems of various state entities that are parties to this agreement. 

            Special attention is paid to electricity (capacity), despite the absence of a definition of this category, in the Treaty on the Eurasian Economic Union (2014), which was originally signed by the leaders of such countries as the Russian Federation, the Republic of Belarus and Kazakhstan, and subsequently – also by the Republics of Kyrgyzstan and Armenia. These relations have been actively developed and reflected in another interstate act – in the Decision of the Supreme Eurasian Economic Council in 2016, which was subject to approval of the Program for the formation of a single electric power market in the member countries of the named international organization ^[15].

           A literal analysis of the provisions of this international document allows us to note: electric energy (capacity) is defined as the subject of a purchase and sale agreement on the common electric power market of the Eurasian Economic Union and an element (object) of the relevant legal relations arising between the subjects of the domestic wholesale electric power markets of the EU member states on the basis of established and parallel electric power systems.

           As the interpretation of the Protocol adopted within the framework of the Eurasian Economic Union (2019) demonstrates, in accordance with this interstate document, progressive adjustments were made to the Treaty on the Eurasian Economic Union in 2014 (in terms of the subsequent development of the single electricity market of the member countries of this international organization) ^[16]. Thus, the document emphasizes that electricity is a type of energy that supplies the electricity market of the Union within the framework of the execution of purchase and sale agreements in accordance with the rules of centralized mutual trade in the common electricity market and the implementation of mutual obligations, both between the participating countries of this market and the operator (operators) of electricity trade in the corresponding type of its centralized trade and other infrastructure organizations of the unified Union electric power market, providing appropriate contractual performance.

A similar legal position is directly reflected in many other documents in the field of electric power industry of various international organizations, as well as in bilateral treaties of individual states, for example, in the Agreement concluded between the Russian and Kyrgyz Governments on the development of mutual cooperation in the energy sector ^[17].

Attention to this theoretical issue at the international level is due to practical considerations: electricity, due to the quality of unconditional value, irreplaceability, as well as the impossibility of accumulation in significant volumes, as well as due to the property of inseparability from a certain generating source and technical transmission mechanisms, is a material good necessary to take into account all its characteristics in the formation of multidimensional international relations, including the sphere of supply. These and other features of electricity, reflected in various aspects in the conceptual apparatus of international acts, are also due to the impossibility of using this type of energy by itself as a good, both in physical and legal contexts ^{[18, p. 27]}, technological dependence of participants in the relations of the electric power industry (producers, electricity, consumers, transporters).

These and other circumstances necessitate the establishment of certain legislative rules, certain rules - restrictions in the field of transmission line capacity and energy reservation, as well as ensuring the necessary level of security of power systems, and, in general, ensuring global and national security, as well as the need for a unified unified understanding of the category "electric energy (capacity)" at the international and national level.

The position regarding the concept of "electric energy (power)" reflected by international courts is of interest for research.

The relevance of these issues is mediated by the fact that the procedural specifics of the consideration of international disputes in the field of electric power industry is a set of special regulatory rules contained in the legal norms of international law (procedural, substantive), as well as in the acts of international judicial authorities regarding the explanation of the application of substantive law for certain categories of cases. At the same time, the structure of the procedural features of the consideration of electric power international disputes includes in its content not only traditional procedural elements (the competence of the dispute, the limitation period, the appointment of a judicial examination), but also the features of the disputed legal relations due to the actual specifics of the object (electricity (capacity)).

Thus, the Court of the Eurasian Economic Union of June 18, 2019, in its decision on the recognition of the act issued by the Board of the Eurasian Economic Commission ^[19], in relation to the dispute under consideration, indicated the following position:

- electrical energy - energy that is generated during the interaction of a diesel engine with a generator, as well as with the main engines capable of driving the corresponding vessel;

- electrical energy – the energy of an electric generator set, the rotation of which is carried out by means of a diesel engine and is used to ensure the operation of the vessel, as well as the operation of electric motors of the rowing type.

The legal category "electric energy (power)", reflected at the level of international court resolutions, is generally interpreted as:

- a physical phenomenon is a type of energy (electric current energy) in various forms distributed in an electromagnetic field, and characterized by 1) the possibility of obtaining it from various energy resources at moderate financial costs; 2) the simplicity of transformation into other forms (both mechanical, thermal, sound, and light, as well as chemical); 3) the ability to be quickly transmitted in large quantities over considerable distances with insignificant losses without much expense; 4) the ability to use electricity (with multidimensional power and voltage and frequency) in various technical and other devices;

- a special immaterial commodity that cannot be contemplated as a thing, accumulated (stored), and which is consumed in the appropriate unit of time and is not subject to return;

- the subject of the contract of sale, distinguished by both capacity and laconism, special empirical and legal properties of the goods (quality, turnover, commercial value, inextricable technological connection with other objects that implement mediating functions in the field of power supply (generators, power grids)).

In view of the lack of consensus on the understanding of the category "electric energy (power)" at the level of international sources of law, there is thus a clear lack of identity of its interpretation in international judicial bodies. As a result, the procedural features of the consideration of electric power disputes have to be determined on the basis of exclusively general procedural norms, and not through the analysis of unified and globally recognized material provisions, definitions due to the specifics of material legal relations. Difficulties in the consideration and resolution of electric power disputes in international courts, as well as obstacles faced by international courts and persons involved in specific litigation, are due, respectively, to the absence in international norms of a common approach to understanding the legal category of "electric energy (capacity)"

The above is directly related to Russian citizens: the constitutional right to the protection of rights in court is a basic subjective right that is not subject to restriction under any circumstances, including in its content a system of real possibilities for the protection of objects of legal protection guaranteed and protected by law (through the use of various mechanisms of effective, fair Russian and international justice) ^{[20, p.10]}.

In the sources of international law and in judicial acts of the international level, respectively, electricity (power) is understood both as a physical phenomenon (a type of energy that supplies a specific electricity market and represents a constantly moving flow of electric charges in various directions) and, for the most part, as a legal category (a special type of product, the subject of a purchase agreement-sales, that is, an object of civil legal relations characterized by the simultaneity of production, consumption and in need, in order to ensure safety, to maintain a stable state of technical means and parameters within the limits specified in the prescribed manner).

It is also necessary to take into account that electricity, capable of producing a range of useful phenomena for humans: this is heat, light, and mechanical power, etc., in the indicated manifestations cannot be reflected from the legal position as an unconditionally material consumable thing (however, until the moment of production of some mechanical action capable of transforming energy into a commodity), as well as the subject of a corresponding national and international agreement. In the designated legal context, electricity, considered taking into account its physical properties, is recognized as an object of the sphere of civil law (more precisely, it belongs to the category of things), is regulated by the relevant civil, as well as international legal relations (the sphere of both international and private international law) (with due, in this connection, the peculiarities of the legal status), with taking into account the fact that electricity is a "product" presented in the form of appropriately charged particles of certain carriers of an elementary electric charge.

At the same time, from a legal point of view, the categories "electricity energy" and "power" cannot be recognized as independent legal constructions, since power is a qualitative characteristic of electricity that has a direct impact directly on this type of energy, including its cost for the producer, as well as on the final price for the consumer. "In other words, it is impossible to buy or sell electrical power without buying or selling electricity itself" ^{[21, p. 64]}.

As a result of the study, the following legal concept of the category "electricity (capacity)" is proposed, which may be included in international documents: this is a benefit characterized by 1) a special legal regime in connection with the presence of both intangible and material properties of energy, 2) the turnover and commercial value of the goods purchased by participants in the wholesale electricity market, 3) technological connection with other objects implementing mediating functions of electricity supply (generators, power grids), 4) a certain quality, i.e. compliance of the electric power at the corresponding point of the electric network with the established normalized regulations.

Emphasizing the relevance of the research topic, we note: at the present stage, international relations in the field of electric power industry, taking into account new political and economic conditions, are developing in certain directions, for example, Russian-Chinese and Russian-Finnish, as well as within the framework of the Commonwealth of Independent States and the Eurasian Economic Union, as evidenced by international negotiation processes in this plane, there are national trends about the intention for interethnic interaction, and the traditional increase in electricity production. Thus, statistical data on the array of this type of energy produced in Russia state: if in the first two months of 2022 the growth in total electricity generation by thermal power plants was 67.0%, then for the same period in 2023 the increase is expressed in 69.1%. Electricity production by Russian hydroelectric power plants (13.9%) and nuclear power plants (16.6%) has been established at approximately the same level since 2022 ^[22]. The total capacity of national power plants in the first two months of 2023 is fixed at 247,601.8 MW, which is 0.41% more than in 2022 (246,590.9 MW). In the past (2022), 972.2 MW of completely new generating capacities were to be put into operation. In general, over the past 5 years (from 2018 to 2023), installed capacity in the Russian Federation has increased by 1.79% ^[23].

We believe that the above, as well as progressive world processes, despite the political and economic problems of the modern world, will contribute to the necessary global basification of electric power integration, the establishment of the prestige of the Russian Federation in the interstate legal field of energy resources, the preservation of progressive trends in international cooperation in the field of electric power, the adoption of new sources of law, including international documents, acts of international courts reflecting the true universally recognized vision of the legal category "electricity (capacity"). Such unification will contribute to successful law enforcement, improvement of national legal regulation in the recognized most important branch of the modern economy in the world – in the electric power industry, ensuring energy security in the world.