International standards of customs control regulation: modern assessment

Agamagomedova Saniyat ORCID: 0000-0002-8265-2971 Senior Research Fellow, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 saniyat_aga@mail.ru Other publications by this author

Universal international regulatory standards take place in almost all spheres of social interaction. In certain areas of public relations, they are of particular importance, historically designed to play a significant role in regulating the national. Such areas include the sphere of customs regulation, which uniquely combines not only the need to combine private and public interests in foreign economic cooperation, but also naturally incorporates the levels of international and national, and in the conditions of interstate economic integration and integration (or macroeconomic) regulation. The most important instrument of state regulation in this area has traditionally been customs control as a type of state control. This institution is also influenced by international standards of customs regulation, which seems quite natural from the point of view of the need to unify and harmonize the requirements for the cross-border movement of goods, its control by the state. An attempt to determine the directions and priorities of such influence, to assess it in the context of modern challenges and threats, to highlight the prospects for the development of public law regulation of customs control, taking into account the provisions of international treaties, is undertaken in this article.

In recent years, the inclusion in international law of norms defining the procedure for regulating the behavior of individuals and legal entities has been noted. G.G. Shinkaretskaya believes that such regulation has received the greatest development in investment and international maritime law, and in the future it will also be extended to international space law ^[1].

Universal international agreements in the field of customs regulation traditionally contain norms defining the interaction between economic entities and state institutions in the framework of cross-border trade. One of such agreements is the International Convention on Simplification and Harmonization of Customs Procedures, adopted in Kyoto in 1973 (hereinafter referred to as the Kyoto Convention). This document is rightfully considered as the basic standard of customs regulation in general, as well as the legal regulation of individual institutions of customs legislation, an important place among which is occupied by the institute of customs control.

The current legal definition of customs control in almost all member States of the World Trade Organization is based on the concept of customs control established in the Kyoto Convention. According to its provisions, customs control is a set of measures applied by the customs service to ensure compliance with customs legislation (paragraph E7./F3. of the General Annex to the Kyoto Convention). The definition of customs control is traditionally contained in the current customs legislation, in relation to Russia in this regard, it is necessary to distinguish the pre-integration stage (national level of regulation) and the stage of Eurasian integration (integration level of regulation). Currently, it is enshrined in paragraph 41, paragraph 1, Article 2 of the Customs Code of the Eurasian Economic Union (hereinafter referred to as the EAEU TC), according to which customs control is a set of actions performed by customs authorities aimed at verifying and (or) ensuring compliance with international treaties and acts in the field of customs regulation and legislation of the member States on customs regulation.

The regulatory framework for regulating customs control today includes international treaties and acts (the Kyoto Convention, the Treaty on the Eurasian Economic Union, the EAEU Customs Code and many others), the national legislation of the Russian Federation, which is based on Federal Law No. 289-FZ of 03.08.2018 "On Customs Regulation in the Russian Federation and on Amendments to Certain legislative acts of the Russian Federation", as well as a number of other acts. Customs control is also regulated by a variety of by-laws, including departmental acts of the Ministry of Finance of the Russian Federation and the Federal Customs Service.

It seems that the Kyoto Convention refers to universal standards for regulating customs control of a general nature. Acts of a special nature include international treaties regulating the procedure for carrying out certain areas of customs control. Such areas include customs control of goods containing intellectual property objects, which is regulated at the international level by the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (TRIPS Agreement). This agreement had a significant impact on the development of the national, and later the integration level of regulation of cross-border turnover of goods containing intellectual property objects ^[2]. An even more specialized aspect of customs control can be considered, for example, customs control of goods containing Olympic and Paralympic symbols ^[3], which is also regulated at the international level, in particular, by the norms of the Nairobi Treaty on the Protection of the Olympic Symbol of September 26, 1981.

It is necessary to single out at least two major goals for the creation and functioning of international standards for the regulation of customs control. Firstly, it is the harmonization and unification of such regulation in the member States of the relevant international agreements. Moreover, such a convergence of regulation, the levels of which are harmonization and unification, occurs largely at the level of the general principles of regulation of customs control. Secondly, international standards of legal regulation of customs control are designed to establish a certain minimum of such regulation in states, the limit of regulation, below which the level of regulation cannot (should not) fall.

Currently, certain aspects of customs control are regulated at the level of regional agreements. In addition to the acts of the EAEU level, such acts should include, for example, the US-Mexico-Canada Agreement, which was signed on the sidelines of the G20 summit in Argentina on November 30, 2018, entered into force on July 1, 2020 and replaced the North American Free Trade Agreement (NAFTA). Scientists note among his novels a group of norms on express deliveries (Article 7.8), according to which the participating countries undertake to ensure the implementation of accelerated customs procedures for express cargo while maintaining the proper level of customs control ^{[4, p. 74]}.

The basic international principles of customs control are those defined in the Preamble to the Kyoto Convention, which recognizes that simplification and harmonization of customs procedures can be achieved through, in particular, the principles of the application of modern methods, such as control based on risk management and audit methods and the maximum practical use of information technology..

Thus, the risk management system (RMS), audit and the development of information technologies are the three pillars on which customs control is based. All of them are fully implemented in the norms of the EAEU law regulating customs control, as well as in Russian customs legislation. As for the use of RMS during customs control, a similar method has been used by the customs authorities of the Russian Federation since 2003, when the provisions of the Kyoto Convention on Risk-based Selectivity of Customs Control were first incorporated into the Customs Code of the Russian Federation in 2003. Today, the RMS is a full–fledged basis for the selectivity of customs control in relation to objects, forms and measures that ensure its implementation. Moreover, the Federal Customs Service of Russia actively uses a subject-oriented approach when categorizing (currently we are talking about automatic categorization) controlled entities for the purpose of customs control. The lower the risk level, the less the control and supervisory impact, the more "loyal" the forms of customs control.

The Institute of Audit during customs Control has not received regulatory approval at the moment. But attempts have been made to use audit tools (customs audit) during customs control by customs authorities (an example is the Order of the Federal Customs Service of Russia dated 29.10.2021 No. 960 "On conducting an experiment on the introduction of customs audit").

It seems that, taking into account the definition given in the Kyoto Convention, the audit (customs audit) can include customs control after the release of goods. According to the provisions of the Kyoto Convention, "control based on audit methods" means measures that allow the customs service to verify the correctness of filling in declarations and the reliability of the information indicated in them by checking the relevant accounting books, accounts, document flow and commercial information available to interested persons (item E3./F4). We believe that elements of the audit also take place at the Institute of customs monitoring, which is currently being carried out by the Federal Customs Service of Russia in an experimental mode. It should be noted that in relation to audit, the scientific position on the use of private law instruments in customs ^[5] and tax relations ^[6] is becoming widespread.

The use of information technologies during customs control deserves special attention. Today, customs control for the most part is digital control, control based on digital (virtual) interaction. At the same time, we should not forget the fact that in addition to speeding up and simplifying digital control brings new threats and risks. Scientists rightly note that in the conditions of digitalization, the risks of a gradual loss of social manageability by society, and then the destruction of the main structural elements of state sovereignty, significantly increase ^{[7, pp. 24-25]}.

In this regard, it is necessary to agree with Professor E.V. Vinogradova that the opportunities emerging in the field of digital technologies should be provided with reliable legal control ^{[8, p. 19]}.

At the same time, one of the directions of legal regulation in the field of information security is, among other things, the establishment of a clear legal status of authorized officials and structural divisions of bodies responsible for ensuring information security when interacting with citizens and organizations ^{[9, p. 143]}.

Thus, the basic principles of legal regulation of customs control established in international agreements in the customs sphere are mostly reflected both in the regulation of customs control at the EAEU level and at the national level, and in law enforcement. The latter also plays an important role in the approval of the basic principles of customs control, which are reflected in the predictability of control measures, the uniformity of the departmental position of customs and other authorities. A special role in this belongs to the rapidly developing practice of supranational judicial bodies of the EAEU in the last decade, whose active position is also designed to promote the practical implementation of progressive principles of customs control in modern conditions, taking into account the optimal balance of private and public interests in customs relations ^[10].

The current trend in the legal regulation of customs control is the simplification of control effects, minimization of procedural and other formalities during its passage, which ultimately aims to simplify trade procedures in general. In this regard, experts justify the position that initially the concept of "simplification of customs procedures" was part of the concept of "trade facilitation" (which follows from the context of the Kyoto Convention), and with the adoption of the WTO Trade Facilitation Agreement, as well as with the conclusion of new regional agreements, including the US-Canada Agreement-Mexico and Comprehensive Regional Economic Partnership, the meaning of these concepts often coincides, which indicates the use of a special interpretation of the concept of "trade facilitation" in these agreements. The latter imply operations, practices and formalities in the collection, provision, transfer and processing of information accompanying the cross-border movement of goods, which are primarily aimed at eliminating non-tariff barriers directly related to technical formalities ^{[4, pp. 11-12]}.

Thus, customs control, traditionally understood as a non-tariff barrier, in the development of international standards for regulating customs relations, is increasingly being separated from the concepts of barrier, obstacle, and formality.

In conclusion, we should focus on the use of the above standards and priorities in the regulation of customs control in the current international situation. In the context of increasing sanctions pressure from unfriendly countries, Russia is forced to apply a selective policy in the field of customs regulation. At the same time, the institute of customs control is also rapidly transformed and generates new directions in its functional structure (for example, control over the turnover of sanctioned products through mobile groups, etc.).

Of course, the use of measures of interstate pressure – retorts, reprisals, sanctions, should be carried out in compliance with the principles and norms of international law. Otherwise, the use of such measures poses a threat to the sovereignty, political and economic security of states ^{[11, p. 68]}. Sanctions against Russia contradict international law and at the same time contradict the laws of the market economy. Unprecedented sanctions pressure against Russia becomes the basis for selective, in many cases "mirror" use of management tools in foreign economic activity, the most important of which is customs control. The basic principles of customs control proclaimed in international agreements, progressive trends in its legal regulation are reflected in the EAEU-level treaties, the national legislation of the Russian Federation, as well as in the law enforcement practice of implementing administrative customs control procedures. The impact of the Kyoto Convention and other international agreements in the customs sphere on the national regulation of customs control occurs long before Russia's accession to the World Trade Organization, even at the stage of the negotiation process for joining it. At the same time, the regulatory potential of customs control is designed to ensure the national security of the state, to protect the rights and legitimate interests of Russian citizens, the domestic economy, and the sovereignty of the country in the face of external challenges.