of May 18, 2006 No. 2
About official interpretation of the subitem 7) article 54 of the Constitution of the Republic of Kazakhstan
The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Rogov I. I., members of council of Abishev H. A., Baltabayeva K. Zh., Belorukova N. V., Bychkova of Page F., Nurmagambetova A.M., Stamkulova U. M. with participation:
the representative of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Cherdabayev R. T.,
deputies of the Senate of Parliament of the Republic of Kazakhstan Dzholdasbayeva N. Ch. and Sapiyev O.,
representatives of the Government of the Republic of Kazakhstan - the deputy minister of foreign affairs of the Republic of Kazakhstan Zhoshybayev R. S., the vice-Minister of Justice of the Republic of Kazakhstan Nugmanov S. P.,
deputy attorney general of the Republic of Kazakhstan Daulbayev A. K.,
representative of the Ministry of Foreign Affairs of the Republic Kazakhstandirektora of international legal department Amanzholova Z. A.
considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of the subitem 7) of article 54 of the Constitution.
Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional Council Stamkulov U. M., speeches of the representative of the subject of the address and participants of meeting, and also the expert opinion - the doctor of jurisprudence, professor Sarsembayev M. A., opinion the managing department of the international and constitutional right of Eurasian national university of L. N. Gumilev of Candidate of Law Sciences, associate professor Kulzhabayeva Zh. O., the Constitutional Council of the Republic of Kazakhstan established:
In the Constitutional Council of the Republic of Kazakhstan the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of the subitem 7) of article 54 of the Constitution arrived on April 26, 2006.
The subject of the address asks to answer the following questions:
"1. Whether there are distinctions between the law on ratification of the international treaty and the law on accession to the international treaty which is subject to ratification?
2. Whether the become effective international treaty of the Republic of Kazakhstan which was not subject to ratification according to the legislation existing at that time but conflicted to the last owing to its change is subject to accomplishment in full before change or cancellation?".
In case of interpretation of the subitem 7) of article 54 of the Constitution of the Republic of Kazakhstan the Constitutional Council proceeds from the following.
1. Interpretation of contents of the subitem 7) of article 54 of the Constitution is this in the resolution of the Constitutional council of December 13, 2001 to No. 16-17/3.
The analysis of rules of international law shows that ratification of the international treaty, as well as accession to it, is one of methods of expression by the state of the consent to be bound for it the international treaty and is drawn up in the form of the international act having the same name (the subitem of "b" of Item 1 of article 2 of the Vienna Convention on the right of international treaties of May 23, 1969 (further - the Vienna Convention).
Ratification of the international treaty is its final approval of the state by authorized body. It is realized in two acts: international (the ratification letter) and interstate (as a rule - the law). According to article 54 of the Constitution ratification is power of Parliament of the Republic, implementable way of consecutive consideration of appropriate questions in separate meeting of Chambers: in the beginning in the Majilis, and then in the Senate.
2. Regulations of the Vienna Convention do not establish distinctions between ratification of the international treaty and accession to the international treaty on their consequence in law (Articles 11, 14 and 15). According to explanation of Contractual section of Management according to legal issues of the United Nations, "accession involves the same legal effects, as ratification".
From rules of international law and the national legal system of the Republic follows that in international legal aspect accession, on condition of implementation by its Parliament by means of adoption of law, involves the same legal effects, as ratification.
In the Republic of Kazakhstan the laws on ratification of the international treaty and the laws on accession to the international treaty which is subject to ratification undergo the identical procedure of acceptance. Therefore they are equivalent on the legal force and consequence in law.
In this regard the Constitutional Council believes that ratified it is necessary to consider those international agreements which obligation for the Republic is established by the laws on ratification of international treaties or the laws on accession to international treaties. At the same time, ratification and accession are not completely identical concepts therefore it is more preferable to draw up decisions on accession of the Republic of Kazakhstan to the international treaties which are subject to ratification by means of adoption of law on accession and ratification of international treaties as it follows from contents of the subitem 7) of article 54 of the Constitution.
3. According to Item 1 of article 4 of the Constitution the international agreements and other obligations of the Republic meeting its standards are component of the law in force of the Republic.
At the same time Kazakhstan attaches special significance to the ratified international treaties, determining in Item 3 of article 4 of the Constitution that the international agreements ratified by the Republic have priority before its laws.
It agrees stipulated in Clause 26 Vienna Conventions to the principle of "pacta sunt servanda" each current agreement is obligatory for his participants and shall be carried out by them honesty. This principle is enshrined also in the Declaration on the principles of international law concerning friendship and cooperation between the states according to Articles of organization of the United Nations of October 24, 1970 as the principle of fair accomplishment by the states of obligations assumed by them according to the Charter of the UN.
Meanwhile, as specified the Constitutional Council in the resolution of October 11, 2000 to No. 18/2, the Vienna Convention "does not determine procedure for execution of agreements. It belongs to the constitutional and legislative prerogatives of the states and follows from the conventional principle of international law - sovereign equality of the states".
Proceeding from it, the Constitutional Council believes that in case of recognition in accordance with the established procedure the international treaty of the Republic of Kazakhstan or its separate provisions contradicting the Constitution of the Republic having according to Item 2 of Article 4 of the Fundamental Law the highest legal force in the territory of the Republic, such agreement completely or in part, the acknowledged not relevant Constitution is not subject to execution.
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