SELECTED ISSUES RELATING TO THE IMPLEMENTATION OF KAZAKHSTAN’S RATIFIED TREATIES

Abstract

The study is dedicated to formulating recommendations for addressing an issue arising from the first sentence of paragraph 3, Article 4 of the 1995 Constitution of Kazakhstan. This provision presents a potential risk of the state violating the principle of pacta sunt servanda, which is binding upon Kazakhstan under both customary international law and the law of treaties. The position advanced in this study is based on the observation that the constitutional provision in question, which addresses the priority of treaties in the event of a substantive conflict with domestic law, is limited to ratified treaties and those equated to them. This is in contrast to Article 11 of the 1969 Vienna Convention on the Law of Treaties, which stipulates that ratification is merely one of the means by which a state may express its consent to be bound by a treaty, alongside signature, exchange of instruments constituting a treaty, acceptance, approval and accession. Therefore, in cases of conflict between the provisions of national law and a treaty in force for Kazakhstan, where consent was expressed by means other than ratification or its equivalents, the constitutional provision in question would prevent national actors from applying the relevant treaty norm to resolve a domestic legal matter (dispute). Consequently, this situation will lead to violations by the state of Articles 26 and 27 of the 1969 Vienna Convention on the Law of Treaties. 

As a result of the study, the author recommends eliminating from the legislation the reference to a specific mean of expressing a state’s consent to be bound by a treaty – such as ratification – when determining the precedence of treaties over domestic laws.