RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of April 23, 2003 No. 4

About official interpretation of Item 2 of Article 2 and Item 3 of article 6 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the chairman Hitrin Yu. A., members of council of Abishev H. A., Baltabayeva K. Zh., Bychkova of Page F., Esenzhanova A., Kotov A. K. and Omarkhanova K. A. with participation:

the representative of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Sarpekov R. K.,

Minister of Justice of the republic Zhumabekov O. I.,

deputy attorney general of the republic Daulbayev A. K.,

vice-Minister of Foreign Affairs of the republic Zverkov V. P.,

chairman of the Agency of the Republic of Kazakhstan on management of land resources Ospanov B. S.,

considered in open session the address of the chairman of the Majilis of Parliament of the Republic of Kazakhstan about official interpretation of Item 2 of Article 2 and Item 3 of article 6 of the Constitution of the Republic of Kazakhstan.

Having studied the available materials, including the conclusions of ekspertovchlenakorrespondent of National academy of Sciences, the doctor of jurisprudence, professor Sapargaliyev G. S. and the corresponding member of National academy of Sciences, the doctor of jurisprudence, professor Suleymenov M. K., having heard the speaker - the member of the Constitutional Council Bychkova of Page F., performances of participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan the address of the chairman of the Majilis of Parliament of the Republic of Kazakhstan about official interpretation of Item 2 of Article 2 and Item 3 of article 6 of the Constitution of the Republic of Kazakhstan arrived.

The subject of the address asks to give official interpretation of Item 2 of article 2 of the Constitution of the Republic of Kazakhstan according to which "the state provides integrity, immunity and inalienability of the territory", and Item 3 of article 6 of the Constitution establishing: "The earth and its subsoil, waters, plant and animal life, other natural resources are in state-owned property. The earth can be also in private property on the bases, conditions and in the limits established by the law", having provided at the same time the answer to question of whether follows from the specified Constitution regulations that at the level of the legal act the solution of question of transfer into the ownership of foreign states of the parcels of land intended only for placement of the diplomatic representations accredited in the Republic of Kazakhstan is allowed.

In case of interpretation of Item 2 of Article 2 and Item 3 of article 6 of the Constitution of the Republic of Kazakhstan, in relation to subject of the address, the Constitutional Council proceeds from the following.

1. The concept of the territory of Kazakhstan of the Constitution of the Republic of Kazakhstan is closely connected with concept of its sovereignty. In Item 2 of article 2 of the Constitution it is determined that "sovereignty of the republic extends to all its territory".

The territory of the state represents space limit in which the state exists and is effective as the sovereign organization of the power. It is the higher authority in this territory, is single and independent. The earth, its subsoil, waters, plant and animal life, other natural resources which are covered by republic space are in public property of Kazakhstan.

Ensuring with the state integrity, immunity and inalienability of the territory assumes development and implementation of package of measures of economic, political, military, legal and organizational nature, directed on:

- strengthening of immunity of the state in economic interaction;

- legal impossibility of unilateral concession Republic of Kazakhstan parts of the territory to other state;

- non-admission of capture, accession or Section of the territory of the republic;

- the prohibition on creation and action of public associations, the purposes or actions of which are directed to violation of integrity of the Republic of Kazakhstan;

- absence at bodies of the state on places of the right to put question of secession of the state and change of the legal status unilaterally;

- assignment on bodies of the state of obligations for acceptance of necessary and sufficient measures for protection and protection of sovereignty and territorial integrity of the republic. 8

Territorial integrity - the determining condition of homeland security of Kazakhstan.

Change of unitarity and territorial integrity of the republic cannot be subject of initiation of changes and amendments in the Constitution. In the resolution of the Constitutional Council of December 4, 1998 N13/2 "About Official Interpretation of the Subitem 1) Article 53 and Item 1 of Article 91 of the Constitution of the Republic of Kazakhstan regarding the Regulations Concerning Entering by Parliament of the Republic of Kazakhstan of Changes and Amendments into the Constitution" is told that the competence of Parliament connected with procedure for modification and amendments in the Constitution is limited to Item 2 of article 91 of the Constitution". Follows from the above-stated regulations of the Constitution that provision by the Republic of Kazakhstan to foreign states of the parcels of land for placement of the diplomatic representations accredited in its territory perhaps only in the legal form which is not attracting exception of these sites of public property of Kazakhstan. Such legal form is provision by the Republic of Kazakhstan to foreign states whose diplomatic representations are accredited in the territory of the republic, the parcels of land in use under lease. The territory of the Republic of Kazakhstan as the general space limit designated by frontier remains invariable.

In case of the solution of case in point shall be taken into account of provision of article 8 of the Constitution that "The Republic of Kazakhstan respects the principles and rules of international law, pursues policy of cooperation and good-neighbourhood between the states, their equalities and non-interference to internal affairs of each other".

Territorial integrity and immunity of the state is protected both by the basic principles of international law, and the Constitution of the Republic of Kazakhstan. Provision by the republic to foreign states of the parcels of land in use for placement of diplomatic representations requires additional legal guarantees of integrity, immunity and inalienability of the state territory of the republic, somehow:

- purpose of the specified parcels of land (their use only for placement of the diplomatic representations accredited in the Republic of Kazakhstan);

- provision of the parcels of land on the basis of the principles of reciprocity and equality between the states;

- adoption of the legal act for immunity of foreign states in the Republic of Kazakhstan guaranteeing respect for interests of the republic in disputes over occasion of the parcels of land.

2. According to Item 3 of article 6 of the Constitution "The earth and its subsoil, waters, plant and animal life, other natural resources are in state-owned property. The earth can be also in private property on the bases, conditions and in the limits established by the law".

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