THE RELATIONSHIP BETWEEN THE LEGAL FORCE OF INTERNATIONAL TREATIES OF THE REPUBLIC OF KAZAKHSTAN AND ACTS OF NATIONAL LEGISLATION

The creation of a new legal system in sovereign Kazakhstan led to the emergence of qualitatively new legal sources, among which the norms and principles of international law began to play a significant role. According to paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan (RK), international treaties and other obligations of the Republic are an integral part of the national law in force in the country [1]. The Constitution of the Russian Federation (hereinafter – RF) went further on this issue, recognizing not only international treaties of the Russian Federation but also the universally recognized principles and norms of international law (Part 4 of Article 15 of the Constitution of the RF) [2]. In turn, the Constitution of Kazakhstan in Article 8 merely indicates that the Republic of Kazakhstan respects the principles and norms of international law. This constitutional provision, according to the legal position of the Constitutional Council of the RK, means the state's intention to take international law principles and norms into account when creating national law [3].

Undoubtedly, the universally recognized principles and norms of international law are reflected in the current Constitution of the Republic of Kazakhstan and are accordingly considered when adopting other acts of national legislation. However, principles and norms of international law may also be separately enshrined in special sources of current law – international treaties of the Republic of Kazakhstan. According to paragraph 3 of Article 4 of the Constitution of the RK, international treaties ratified by the Republic take precedence over its laws and apply directly, except in cases where the international treaty specifies that the enactment of a law is required for its application.

As is well known, international treaties of the Republic are not normative legal acts and do not constitute a single hierarchy with them as indicated in Article 4 of the Law 'On Normative Legal Acts' [4]. This, of course, complicates the issue of the relationship of legal force between international treaties of Kazakhstan and acts of national legislation.

According to Article 2 of the Law 'On International Treaties of the Republic of Kazakhstan,' these acts are divided into three types: a) interstate, concluded on behalf of the Republic of Kazakhstan; b) intergovernmental, concluded on behalf of the Government of the Republic of Kazakhstan; c) interdepartmental, concluded on behalf of state bodies of the Republic of Kazakhstan, directly subordinate to and under the President of the Republic of Kazakhstan, as well as central executive bodies of the Republic【5.

It is impossible to agree with the opinion of N.V. Mironov, who emphasized that 'classifying a particular international agreement as an interstate, intergovernmental, or interdepartmental agreement thus means classifying them into a certain hierarchical level according to the legal force of their norms'【6; 114】, in light of the current legislation. According to Chapter 2 of the Law 'On International Treaties of the Republic of Kazakhstan,' consent may be expressed by law regarding interstate treaties (approved by a decree of the President of the Republic of Kazakhstan), intergovernmental, and interdepartmental treaties. In the case where an interdepartmental agreement, for example, has been ratified, and an intergovernmental agreement, in turn, enters into force immediately after signing, then, naturally, within the legal framework of Kazakhstan, the intergovernmental agreement should yield in legal force to the interdepartmental agreement.

There are many interdepartmental, intergovernmental, and even interstate treaties of the Republic that have not been ratified by the Parliament of the Republic of Kazakhstan. However, paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan indicates that only ratified international treaties of the Republic have priority over its laws. This raises two questions: do non-ratified interstate, intergovernmental, and interdepartmental treaties of the Republic have any priority over domestic legislation, and if so, over which specific acts of national legislation do they have priority?

According to the legal position of the Constitutional Council of the Republic of Kazakhstan in its decision dated October 11, 2000, international treaties that do not require ratification as a condition for their entry into force, concluded before the adoption of the 1995 Constitution, are valid and retain priority over the legislation of the Republic, if such priority is explicitly provided for these international treaties by the laws of the Republic governing the respective areas of legal relations【7】. In another normative resolution of the Constitutional Council dated May 18, 2006, it is stated that 'acts of the Republic of Kazakhstan on the ratification of international treaties and acts of the Republic of Kazakhstan on joining international treaties are equivalent in legal force and legal consequences. In this regard, international treaties, the obligation of which for Kazakhstan is established by normative legal acts on joining international treaties, adopted by the highest representative body of the Republic performing legislative functions (the Supreme Soviet, the Parliament of the Republic of Kazakhstan), and decrees of the President of the Republic of Kazakhstan, having the force of law, are equated with the international treaties ratified by the Republic of Kazakhstan'【3.

Certainly, some issues regarding the priority of international treaties of the Republic were resolved by the cited legal positions of the Constitutional Council, but many other issues remain. When resolving the issues of priority of international treaties, it is necessary to primarily consider the legal status of the state body or official who concluded the international treaty, which was later not ratified and not re-approved by another higher authority of the state. Thus, lower bodies cannot establish legal norms that contradict the norms contained in the acts of higher state bodies and officials, including by concluding international treaties. Therefore, for example, non-ratified and unapproved interdepartmental international treaties cannot have priority over the normative acts of the Government of the Republic of Kazakhstan, the President of the Republic of Kazakhstan, and the Parliament of the Republic of Kazakhstan.

According to the Constitution of the Republic of Kazakhstan, the Parliament ratifies international treaties by adopting the relevant law, and as a result, these treaties take priority over the laws of the Republic. From the constitutional provisions cited, certain conclusions can be drawn by analogy. After all, the adoption of laws is the primary method through which the Parliament of the Republic of Kazakhstan carries out its main function, namely the legal regulation of the most important public relations. Accordingly, in the case of the approval of an international treaty by a decree of the President of the Republic of Kazakhstan, a resolution of the Government of the Republic of Kazakhstan, or normative legal acts of ministries and agencies, such international treaties should, by analogy with constitutional provisions, take priority over the normative legal acts of the President of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan, ministries, and agencies, which, like the Parliament, carry out their activities within the legal framework by adopting decrees, resolutions, and other normative legal acts. Of course, it should also be taken into account the place in the hierarchy of the normative act by which the international treaty is approved. For example, if an international treaty is approved by a decree of the President of the Republic of Kazakhstan, it will, accordingly, have priority not only over the decrees of the President of the Republic of Kazakhstan but also over the resolutions of the Government and the normative acts of ministries and agencies.

One of the leading scholars in the Russian Federation in the field of state and law theory, Dr. Jurisprudence, Professor M.N. Marchenko, writes the following on the matter: 'The priority over national laws, traditionally understood in both domestic and foreign literature not only in its narrow sense but also in a broader sense—meaning the entirety of all legal acts based on law—is held by all types of international treaties of the Russian Federation, but each at its respective level: decrees of the president, resolutions of the government, and at the departmental and interdepartmental levels'【8; 18】.

Above, we primarily discussed the legal force of non-ratified international treaties of the Republic, whereas ratified treaties, according to the constitutional norm, have priority over laws. Is the Constitution of the Republic of Kazakhstan a law? It seems that the answer to this question should be negative. From the perspective of general theory of law, it can be argued that the Constitution of the Republic of Kazakhstan of 1995 is the Fundamental Law. However, from the standpoint of the system and structure of the national legislation of Kazakhstan, the Constitution of the Republic of Kazakhstan is exactly that—a constitution, not a law. The Constitution of 1995 is a special source of Kazakhstani law, possessing the highest legal force and direct applicability across the entire territory of the Republic of Kazakhstan. The very text of the Constitution specifically designates the Constitution as an independent source of the functioning law of the Republic. For example, according to paragraph 1 of Article 77 of the Constitution, 'A judge, when administering justice, is independent and is only subject to the Constitution and the law.' Moreover, paragraph 1 of Article 74 of the Constitution directly states that laws and international treaties recognized as inconsistent with the Constitution of the Republic of Kazakhstan cannot be signed or, accordingly, ratified and brought into force. Claiming that international treaties have priority over the Constitution of the country would mean undermining the very nature of international law, which is based on the voluntary agreement of the wills of states or international organizations【9; 4.

Thus, the ratification of international treaties by the Parliament of the Republic of Kazakhstan grants them priority over laws but not over the Constitution of the Republic of Kazakhstan. From this, another question arises: over which specific laws does priority apply—only over ordinary laws, or both over ordinary and constitutional laws? In the Constitution of the Republic of Kazakhstan, alongside laws, constitutional laws are specifically highlighted as an independent element of the national legislative system of Kazakhstan. For example, Article 54 of the Constitution of the Republic of Kazakhstan states: 'The Parliament, in separate sessions of the Chambers, through the sequential consideration of questions first in the Mazhilis and then in the Senate, adopts constitutional laws and laws.' In the scientific-legal commentary to the Constitution of the Republic of Kazakhstan, G.S. Sapargaliev notes: 'If we consider the provision of paragraph 1 of Article 62 of the Constitution: ' 'The Parliament adopts legislative acts in the form of laws of the Republic of Kazakhsta, then paragraph 3 of Article 4 of the Constitution refers to both constitutional and ordinary laws. If we assume that the Constitution distinguishes between ordinary laws and constitutional laws, then it is likely that international treaties ratified by the Parliament of the Republic of Kazakhstan have priority only over ordinary laws'【10; 34-35】. The author further notes that there is an inaccuracy here, which, in G.S. Sapargaliev's opinion, may be subject to clarification by the Constitutional Council. A. Kotov, regarding the issue in question, remarked: 'The issue of the relationship between ratified international treaties and constitutional laws in the system of current law in Kazakhstan must be resolved separately, considering the importance for the sovereign state of the subject of regulation and the high legal force of these laws, as compared to the legal force of the laws on the ratification of international treaties adopted by the Parliament in the ordinary course. No official interpretation on this open issue of legal application has been given'【9; 5】. As we can see, both authors do not make concrete determinations but point out the absence of and the need for an official clarification on this matter by the Constitutional Council. However, the Constitutional Council itself must base its decision on some initial considerations, more precisely the provisions of the Constitution of the Republic of Kazakhstan. In our view, no matter what way this issue is resolved, it will have both opponents and supporters in academic circles with their respective arguments and reasoning. In any case, this will then become the legal position of the Constitutional Council. According to paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, this decision of the Constitutional Council will be binding throughout the Republic, final, and not subject to appeal.

In the cases of international treaties concluded without ratification discussed above, they had priority only over the same normative legal acts through which these treaties were incorporated into the existing law of the Republic. However, unlike these cases, the Parliament of the Republic of Kazakhstan is the highest legislative body, and it adopts normative legal acts of various legal force and in different procedures. If we were to consider only the subject of the approval of an international treaty, ignoring the procedure for adopting normative acts, it would lead to the conclusion that ratified international treaties should have priority over all normative legal acts adopted by the Parliament of the Republic of Kazakhstan. But, of course, this is not the case. Indeed, amendments to the Constitution of the Republic of Kazakhstan can only be made by the Parliament of the Republic through the adoption of the corresponding law by a majority of at least three-fourths of the total number of deputies in each of the Chambers. The ratification of international treaties cannot lead to amendments or additions to the Constitution of the Republic of Kazakhstan. International treaties are ratified by a law adopted by a simple majority of votes from the total number of deputies in the Chambers. On the other hand, constitutional laws, in accordance with paragraph 4 of Article 62 of the Constitution of the Republic of Kazakhstan, are adopted exclusively on matters directly provided for in the Constitution by a majority of no less than two-thirds of the total number of deputies in each of the Chambers.

If we assume that ratified international treaties have priority over constitutional laws, this would effectively mean that amendments and additions to constitutional laws could be made by a simple majority of votes from the total number of deputies in the Chambers.

Based on the above, we believe it is necessary to pay special attention to the procedure for adopting legislative acts. If this is ignored, it could be assumed that by adopting a law ratifying an international treaty, one could effectively make changes and amendments to the Constitution of the Republic of Kazakhstan. In our opinion, based on constitutional provisions, a simple majority of the total number of deputies in the Chambers cannot formally or effectively make changes and amendments to constitutional laws of the Republic, as this requires a qualified majority of votes from the total number of deputies in each of the Chambers.

Thus, international treaties of the Republic, ratified by a simple majority of votes from the total number of deputies in the Chambers, cannot have priority over constitutional laws, which are adopted by a qualified majority of at least two-thirds of the total number of deputies in each of the Chambers.

The procedure for adopting legislative acts must also be considered when discussing the relationship in legal force between ratified international treaties of the Republic and codes. According to paragraph 2 of Article 4 of the Law 'On Normative Legal Acts', codes are placed in the hierarchy between constitutional laws and ordinary laws. In this regard, A. Kotov notes: 'The place in the hierarchy of normative legal acts is not determined by the line in the Law on which these codes are written, but by their legal force. The legal force, in turn, is determined by the procedure for adopting and making amendments to the codes by Parliament. According to the Constitution, this procedure is the same as for so-called 'ordinary' or regular laws, that is, by a simple majority of votes from deputies in a sequential separate consideration by the Chambers (Articles 62 and 54 of the Constitution)'【11:42】.

We fully agree with the author and draw the obvious conclusion from his statement in relation to the issue we are discussing. International treaties are ratified in the same manner as ordinary laws and codes, so they have priority not only over ordinary laws but also over codes. It should also be noted that the Constitution of the Republic of Kazakhstan does not distinguish between ordinary laws and codes in any of its provisions and does not mention the latter at all. Let us especially focus on the relationship in legal force between the international treaties of the Republic and the normative resolutions of the Constitutional Council and the Supreme Court, which, according to paragraph 1 of Article 4 of the Constitution, are sources of applicable law but are not included in the unified hierarchy of normative legal acts of national legislation.

The Constitutional Council of the Republic of Kazakhstan is a specialized body of constitutional control. Its normative resolutions are, in essence, acts of official normative interpretation of the Constitution of the Republic of Kazakhstan. Accordingly, their content and legal force are directly related to constitutional norms. A contradiction between legal acts and the normative resolutions of the Constitutional Council is a contradiction with the Constitution itself. Thus, ratified, and even more so, non-ratified international treaties of the Republic do not have priority over the normative resolutions of the Constitutional Council of the Republic of Kazakhstan.

According to Article 81 of the Constitution of the Republic of Kazakhstan, the Supreme Court provides explanations on matters of judicial practice in its normative resolutions. According to Article 76 of the Constitution of the Republic of Kazakhstan, judicial power extends to all cases and disputes arising based on the Constitution, laws, other normative legal acts, and international treaties of the Republic. Questions may arise during the application of any of these legal acts by the courts. This implies that the Supreme Court's normative resolutions may provide explanations regarding the norms of the Constitution, laws, other normative legal acts, and international treaties of the Republic. Essentially, the normative resolutions of the Supreme Court, like those of the Constitutional Council, are acts of official normative interpretation.

In accordance with Article 81 of the Constitution of the Republic of Kazakhstan, the Supreme Court 'gives explanations on matters of judicial practice.' The explanation provided by a subject is an integral part of interpretation. The other inseparable part is clarification, which means interpreting the meaning of a legal norm for oneself. This necessarily precedes the explanation. Therefore, it is difficult to raise serious objections to the view that the normative resolution of the Supreme Court is an act of interpretation. The explanations of the Supreme Court are not given for a specific case but apply to a previously unlimited circle of persons and cases. Therefore, this interpretation is not casuistic, but normative. Its official character is given by the explicit acknowledgment of this right of the Supreme Court in the Constitution of the Republic of Kazakhstan. In other words, the state authorizes the Supreme Court to adopt such resolutions. Thus, based on the above, it is necessary to acknowledge that the normative resolutions of the Supreme Court can act as acts of official normative interpretation of the Constitution, laws, other normative legal acts, and international treaties of the Republic.

Just as in the case of the normative resolutions of the Constitutional Council, the legal force of the provisions in the normative resolutions of the Supreme Court will depend on the legal force of the norms being explained. For example, if a normative resolution of the Supreme Court contains explanations of constitutional norms, they will have legal force subordinate only to the acts of the body authorized to provide official normative interpretation of the Constitution of the Republic of Kazakhstan, namely the normative resolutions of the Constitutional Council. Ratified, and even more so, non-ratified international treaties of the Republic, of course, will not have priority over such explanations by the Supreme Court of the Republic of Kazakhstan. Explanations given by the Supreme Court most often concern issues related to the application of ordinary laws by the courts. Therefore, in most cases, only ratified international treaties of the Republic will have priority over the normative resolutions of the Supreme Court of the Republic of Kazakhstan. The explanations by the Supreme Court regarding the application of ratified international treaties by the courts, just like such treaties, will have priority over ordinary laws.

Summarizing the above, it can be noted that international treaties of the Republic of Kazakhstan have priority over the normative legal acts of the same subjects and adopted in the same manner as the normative legal acts concerning their approval. The relationship in terms of legal force between the international treaties of the Republic and the acts of national legislation is primarily determined by the legal force of the normative legal act, under which the international treaty is included into the system of the existing law of the Republic. Accordingly, the approved international treaty forms a corresponding 'higher level' in the hierarchy of normative legal acts, based on the level of such a national legislative act. However, it is important to note that the international treaty does not form an independent level. This hierarchy represents the hierarchy of acts of domestic legislation. The phrase 'higher level' used here is not a scientifically legal term, but it serves to most clearly, universally, and generally demonstrate the relationship between all international treaties of the Republic of Kazakhstan and all normative legal acts of national legislation.