KAZAKHSTAN: NEW LAW CHANGES STATUS OF INTERNATIONAL

UNCLAS ALMATY 002833 SIPDIS DEPARTMENT FOR EUR/CACEN (JMUDGE),L/EUR USOSCE FOR K. BRUCKER SENSITIVE E.O. 12958: N/A TAGS: PGOV PREL KZ POLITICAL SUBJECT: KAZAKHSTAN: NEW LAW CHANGES STATUS OF INTERNATIONAL AGREEMENTS ¶1. (SBU) Summary: According to local human rights activists, Kazakhstan's new law "On the International Agreements of the Republic of Kazakhstan," signed by President Nazarbayev on May 30, may challenge the principle of supremacy of international agreements over domestic legislation in Kazakhstani law. Specifically, Article 20 subjects international agreements to change when they are found to conflict with domestic law. End Summary. Supremacy No Longer an Assumption -------------- ¶2. (SBU) Article 4, Section 3 of the Kazakhstan Constitution states that "(i)nternational treaties ratified by the Republic shall have priority over its laws and be directly implemented except in cases when the application of an international treaty shall require the promulgation of a law," establishing the primacy of international agreements, at least where ratification is necessary. Paragraph 2 of Article 20 of the new law, however, states that "(i)n case of a conflict of international treaties of the Republic of Kazakhstan with the legislation of the Republic of Kazakhstan, international treaties of the Republic of Kazakhstan are subject to alteration, suspension or termination in their operation." ¶3. (SBU) Articles 27-30 of the new law enumerate procedures for changing, terminating, suspending and denouncing international agreements to which Kazakhstan is a party. Generally, suspension or denunciation of an agreement ratified by Parliament must be done with Parliament's assent. In other cases, this is accomplished by the Kazakhstani official responsible for the agreement, be it the President, Prime Minister or senior official of the state body that is a party to the affected agreement. These Articles also contain a commitment to observe "standards of international law" in these processes, but this is not elaborated. ¶4. (SBU) The language of the aforementioned Articles is made somewhat confusing by the use of a single Russian word (dogovor) for all types of international agreements throughout the text. In most places in the text, the law distinguishes between agreements ratified by Parliament and those entered into on the authority of the President, the Prime Minister or a central state body. However, distinctions between treaties and executive agreements under this law are only apparent through interpretation. As a result, human rights activists believe that the law's references to "standards of international law" are not as clear as they might appear at first reading. Reaction -------------- ¶5. (SBU) Several legal analysts, including well-known human rights advocate Yevgeniy Zhovtis, have publicly questioned the government's motivation for passing the law. They note that the legislation undermines the basis of all legal systems - the concept of the hierarchy of authorities. Zhovtis publicly questioned why this law was only reported in the press -- and very quietly -- after the President signed it. To What Result? -------------- ¶6. (SBU) Comment: There are several theories about the GOK's motivation for this legislation -- from undoing "friendship" agreements with CIS countries undertaken after the fall of the Soviet Union, to renegotiating petrochemical agreements. It may also be a simple effort to fill a gap in Kazakhstan's legislative framework. Regardless of the motive, human rights activists believe that the legislation may undermine fundamental principles of international law. It is also an open question whether a constitutional issue will eventually arise if a ratified treaty is alleged to conflict with the domestic law of Kazakhstan. Post understands that OSCE may be performing an analysis as well, which we would welcome. Post will continue to seek clarification of the GOK's intentions. ¶7. (U) Minimize for Dushanbe considered. Ordway NNNN