Abstract
In this chapter, I will explore human rights adjudication in three Central Asian countries, namely, Kyrgyzstan, Kazakhstan, and Tajikistan, in the context of external power dynamics. The chapter will show that external factors are shaping the internal political dynamics and fundamental rights adjudication in Central Asia. The cases discussed in this chapter will reveal a common trend across Central Asia involving a shift from monism toward dualism in constitutional texts and in the interpretations of Constitutional Courts (CCs) on the relationship between domestic law and international human rights law. Furthermore, the chapter will demonstrate that Central Asian CCs tend to adopt a pluralistic approach to interpreting the relationship between domestic law and laws regulating Russian-led regional organizations, such as the Eurasian Economic Union (EAEU) and Collective Security Treaty Organization (CSTO).
This chapter has been realized thanks to the DAAD project “Human Rights in Central Asia: Between Nation-Building and Internationalization, project-ID: 57,570,215; and the project “Between Conflict and Cooperation: The Politics of International Law in the Post-Soviet Space” project-ID: 01UC1901; at the IOS in Regensburg, Germany, funded by the German Federal Ministry of Education and Research (BMBF).
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1 Introduction
Constitutional courts (CC) in some Central Asian countries use international and comparative materials not only for purposes of judicial creativity. They also depend on the prevailing understanding of the status of international law in domestic law. The latter, in turn, appears to depend on geopolitical considerations. In this context, it is essential to emphasize two underlying observations. First, due to the extreme legalism in these countries, the references by Central Asian CCs to international sources in their reasonings/decisions seem to reflect a formal hierarchy of sources of international and domestic law. Furthermore, the reluctance of Central Asian CCs to treat references to international and foreign sources as a matter of “normal” judicial interpretation and the emergence of a sovereigntist approach in formal, legal rules means that the ability of CCs in the region is severely undermined when it comes to reviewing new legal restrictions on fundamental rights that are inspired and promoted by Russia.
It is important to note that unlike in Kyrgyzstan, in the past, Kazakh, Tajik, and Uzbek CCs did not have a mechanism for individual complaints. Although such a mechanism was recently introduced in the three countries, the jurisprudence on fundamental rights protection of these states is limited. The issues of fundamental rights protection are usually raised in the context of either interpretation of the constitutional text or constitutional amendments. Recently, a typical pattern has been observed among Central Asian states, except for Uzbekistan, which is reflected in constitutional amendments. First, provisions on the revocation of citizenship were introduced in constitutional texts. Second, constitutional provisions on the relationship between international and domestic law shifted from monism to dualism, thus negatively impacting the protection of human rights through international institutions, such as the UN Human Rights Committee (UNHRC). In international law, the relationship between international and domestic law is usually explained by two opposing theories: dualism and monism.Footnote 1 Dualism assumes distinct characteristics of both systems that cannot alter one another. According to dualism, domestic law prevails in case of a conflict between domestic and international law (Higgins, 1994; Peters, 2007). On the other hand, Monism presumes that these two systems constitute one legal order, and in case of a conflict, the norms of international law prevail (Kelsen, 1945; Ferrari-Bravo, 1983).
Central Asian CCs, except Uzbekistan, were involved in balancing monism and dualism and have provided their opinions on these issues. As such, it is exciting to compare the main approaches and reasonings adopted by these courts in the context of fundamental rights protection. Before moving on to a detailed analysis, it is essential to highlight the key geopolitical factors in the Central Asian context, as it can be assumed that these factors also substantially influence the decision-making process of Central Asian CCs. First, all Central Asian states, except Uzbekistan,Footnote 2 are members of the Russian-led Collective Security Treaty Organization (CSTO), which aims at strengthening peace, collective security, territorial integrity, and cooperation in the region (CSTO, 1992). Due to the wars in Syria and Afghanistan, one of the key aims of this organization was to fight against terrorism and drug trafficking (CSTO, 2014). Besides the CSTO, Central Asia is also actively involved in the Russian-led Eurasian Economic Union (EAEU) (Treaty on the EAEU, 2000). From an institutional point of view, it could be argued that these organizations are an imitation of the European Union (EU) and North Atlantic Treaty Organization (NATO) in the post-Soviet region (Kembayev, 2016a).
Thus, membership in these organizations and, as implied by some experts, the overall dominance of Russia in them, as well as Russian influence as a pacesetter in the region, might be the reason and root cause for the wave of constitutional amendments regarding the status of international treaties and citizenship revocation (Cooley, 2019). Accordingly, the current chapter will analyze decisions made by the Kyrgyz, Kazakh, and Tajik CCs. It is important to note that while reviewing the constitutionality of constitutional amendments, the Kyrgyz Constitutional Chamber analyzed and reviewed each provision separately. However, the Kazakh and Tajik courts refrained from taking such a detailed approach, choosing to conduct a general review of all the amendments simultaneously.
2 Kyrgyzstan: The 2010 Constitutional Chamber Reforms
Besides geopolitical factors, the shift from monism to dualism is rooted in a sensitive issue in Kyrgyzstan. At the heart of this are the events of April 2010, when President Bakiev was ousted, and the interim government was established. Unlike the 2005 revolution (Radnitz, 2005, 2006), the revolution in 2010 was bloody and is estimated to have killed around 100 people, shot by rooftop snipers on the orders of Bakiev and his regime (Collins, 2011).
The period after the interim government was established was volatile and tense for Kyrgyzstan. This was especially the case in the southern part of the country, where ethnic conflict between Uzbek minorities and the Kyrgyz ethnic majority caused hundreds of deaths, physical injury, and property damage.Footnote 3 In response, several investigations were conducted (Osenka Nezavisimoi Komissii, 2011), and governmental commissions were established to investigate the events (Zakluchenoe Nacionalnoi Komissii, 2011). In addition to this, several local and international non-governmental organizations (INGOs) have also published independent reports on this issue (Amnesty International, 2010; Human Rights Watch, 2010). Regarding the outcomes of these reports, there were clear discrepancies between governmental commissions and independent international inquiry commissions. First, the Ombudsman report concluded that: “In the south of Kyrgyzstan, there was a local conflict, which was instigated by people of Uzbek nationality, such as K. Batyrov and others. They started, financed, and provoked this conflict” (Osenka Nezavisimoi Komissii, 2011). The National Commission to investigate the case described the June events as “attempts to use the situation by various separatist groups led by K. Batyrov, supporters of Kurmanbek Bakiev, and external forces interested in destabilizing the situation” (Zakluchenoe Nacionalnoi Komissii, 2011).
The main narrative of the government regarding the June events was that it was a separatist attempt by the Uzbek minorities instigated by leaders such as ethnic Uzbek K. Batyrov and assisted by the ousted President Bakiev. Furthermore, government reports singled out Uzbeks as the instigators of the conflict and failed to consider that most victims were Uzbek minorities themselves (ibid.).
Notably, the independent international inquiry commission that was established on the invitation of the interim government implied that if further independent and impartial investigations were conducted, the events might be characterized as crimes against humanity and the failure of the provisional government to take practical steps to prevent and resolve conflicts might be identified as the root cause of the conflict (Kyrgyzstan Inquiry Commission, 2011). Furthermore, the report emphasized that the evaluation of the June events must be conducted in the political and historical context. This was marked by the “under-representation of ethnic Uzbeks in public life and the rise of ethnonationalism in the politics of Kyrgyzstan” (ibid., 2). Once the report was published, it met with a hostile reception from the Kyrgyz interim government and was seen as an attempt to violate the sovereignty of Kyrgyzstan. The primary author of the report was declared a persona non grata (Radio Free Europe/Radio Liberty, 2011).
Shortly after this, a deputy commission was established under the parliament, which published another report supporting the narrative of previous reports by the Ombudsman and the National Commission. The report stated that “the cause of the conflict was the actions of such separatist politicians as K. Batyrov and others, and both organized criminal groups and the drugs trade contributed to the incident” (Otchet Vremennoi Deputatskoi komissii, 2011). Thus, all claims of potential crimes against humanity were categorically denied by the Kyrgyz government, which decided to conduct their investigations and try the suspects in the ordinary courts of Kyrgyzstan. Several international organizations and NGOs raised concerns about the fairness of these investigations. According to their reports, victims of the June events had been denied justice, an impartial and fair investigation, and a trial. Reports also stated that the Kyrgyz authorities had subjected Uzbek minorities to discriminatory treatment, including arbitrary arrests and torture (Amnesty International, 2013). There were two crucial trials against ethnic Uzbek activists Batyrov and A. Askarov, which subsequently created tension between the government of Kyrgyzstan and international organizations. K. Batyrov, who was repeatedly referred to in all governmental reports, was tried in absentia, found guilty of separatism charges and incitement of hatred among ethnic groups, and was sentenced to life imprisonment (Prigovor Jalal-Abadskogo gorodskogo suda, 2011). Batyrov had been granted asylum in Sweden, but the Kyrgyz government refused the extradition request (Radio Free Europe/Radio Free Liberty, 2011). Batyrov later applied to the UNHRC, claiming that Kyrgyzstan had violated the right to a fair trial under the ICCPR. The case has been pending for some years.
Another case involved human rights activist Askerov, an ethnic Uzbek who had documented human rights abuses by law enforcement in his hometown of Bazar-Korgon. After the June events, he was arrested and later found guilty of being an accomplice in the murder of a police officer and for instigating ethnic hatred and threatening the constitutional order. He was sentenced to life imprisonment (Prigovor Verhovnogo Suda, 2011). Once he had exhausted all available domestic remedies, Askarov appealed to UNHRC. In April 2016, the Committee concluded that Kyrgyzstan had violated its obligations under the International Covenant on Civil and Political Rights (ICCPR) and that Askarov had been “arbitrarily detained, held in inhumane conditions, tortured and mistreated, and prevented from adequately preparing his trial defense” (Human Rights Committee, 2016). The Committee also concluded that Kyrgyzstan was obliged to make reparations to Askarov and to conduct a new trial “subject to the principles of fair hearings, the presumption of innocence and other procedural safeguards” (CCPR, 2016) and, if necessary, to release Askarov immediately. Furthermore, in 2017, a report prepared by the Norwegian Helsinki Committee on the June 2010 events was found to be “extremist” and was banned by a court order. The report contained several pieces of evidence, based on interviews, of severe violations of the rights of Uzbek ethnic minorities during the 2010 events (Norwegian Helsinki Committee et al., 2012).
Both cases, overall that of Askarov, were susceptible to the Kyrgyz government and put the authorities in a difficult position. If the international community's recommendations had been implemented, most of which claimed that Askarov was unjustly imprisoned, this could have caused severe discontent among some of the country’s strongly nationalist groups. He died in prison in 2020, age 69, due to an untreated COVID-19 infection.
2.1 Lowering the Status of International Human Rights Treaties
The Kyrgyz constitutional assembly that drafted the 2010 Constitution comprised several civil societies and human rights activists (Postanovlenie Vremennogo Pravitelstva, 2010). To ensure that Kyrgyzstan did not repeat its previous two mistakes, the drafters decided to prioritize the norms of international human rights law, and Article 6 of the 2010 Constitution stipulated the following: “The provisions of international treaties on human rights shall have direct action and take priority over provisions of other international treaties” (Constitution of the Kyrgyz Republic, 2010). Thus, the norms of international human rights law and the decisions of human rights institutions had priority over other international treaties and domestic law. Referring to this provision and based on recommendations adopted by the UNHRC, Askarov’s lawyers could demand that the Kyrgyz authorities release Askarov immediately. In 2016, constitutional amendments were introduced, and Article 6 was reformulated as follows: “The procedure and conditions for the application of international treaties and generally recognized principles and norms of international law are determined by law” (Zakon Kyrgyzskoi Respubliki, 2016). Thus, it is evident that the amendments shifted the constitutional regulation and approach to international norms from a monistic to a dualistic approach.
Before analyzing the changes introduced to Article 6, the Chamber stated that each amended provision had been reviewed for compliance with the fundamental rights and freedoms of individuals, the permissibility of their restrictions, the principles of a democratic, legal, secular state, and the procedure for amending the Constitution, as provided for by Article 114 of the Constitution of the Kyrgyz Republic (Zakluchenie Konstitusionnoi Palaty, 2016).
The Constitutional Chamber went on to specify that individuals’ fundamental rights and freedoms are natural opportunities for a person and citizen to enjoy the primary benefits provided by the state to exist and develop as an individual. For this purpose, the status of a person and a citizen is reflected in the Constitution, and a range of legal guarantees is established, the protection of which is ensured by all state bodies. Based on the principles of equality and justice, the state is obliged to protect the values of the individual, society, and the state simultaneously, achieving a balance between these values through legal mechanisms (ibid.). Considering these provisions, the compliance of the norms of the draft amendments to the Constitution of the Kyrgyz Republic with international human rights agreements was checked. In connection with this, the Chamber concluded that the new wording of Article 6 of the draft Constitution did not provide for the abolition or restriction of human rights and freedoms (ibid.). This reasoning was justified by referring to the principle of pacta sunt servanda. That is, the Chamber stated that under international law, it is assumed that they create binding international legal norms for their signatories, rights, and obligations once international treaties are ratified. The operation and application of international treaties imply strict fulfillment by all parties of its obligations, such as pacta sunt servanda.
Thus, the provisions of international treaties that have entered into force and are ratified by state parties must be voluntarily implemented by the state parties based on the principle of conscientious performance of obligations. The states themselves fulfill and monitor the implementation of the concluded agreement. In this regard, the proposed new wording of the second part of Article 6 of the Constitution implies the consolidation of organizational measures to ensure the implementation of international treaties, including human rights treaties ratified by Kyrgyzstan. Such a law may also include provisions aimed at adopting relevant legislative and other domestic legal acts, that is, legislation that supports the international treaties in force in the Kyrgyz Republic and measures to be taken should an international treaty be violated. Thus, the Chamber concluded that the new wording of Article 6 of the Constitution did not provide for the abolition or restriction of human rights and freedoms and therefore did not contradict the existing principles of fundamental rights protection (ibid.).
Another amended constitutional provision related to the right to citizenship. It is essential to highlight that even before the amendments to the Constitution in 2015, despite the absolute nature of citizenship, the Kyrgyz parliament amended the law on citizenship to allow the revocation of citizenship in case of involvement in terrorist activities (Zakon o vnesenii Izmeneiy, 2015). Before the referendum, Article 50 of the Constitution stipulated, “No one may be deprived of his/her citizenship and denied the right to change his/her citizenship” (Constitution of the Kyrgyz Republic, 2010). After the referendum, this norm stated: “No citizen can be deprived of his/her citizenship and the right to change his/her citizenship except (…) following the procedure established by constitutional law” (ibid.). The Constitutional Chamber concluded the following on this issue.
First, the Chamber stated that the institution of citizenship is dual. On the one hand, it protects human rights and freedoms; on the other, it protects the state's interests. By granting a person rights and liberties, the state guarantees the realization of that individual’s interests and opportunities and protection from unlawful actions due to the given state's jurisdiction. In exchange, the state requires that individual to observe the established rules of conduct and duties. Such a requirement is based on the state's sovereignty principle and aims to enable it to perform its functions (Zakluchenie Konstitusionnoi Palaty, 2016). This provision is consistent with Article 15 of the Universal Declaration of Human Rights. Second, the Chamber went on to state that many democratic states practice the deprivation of citizenship as a punishment or sanction. Deprivation of citizenship is an extreme measure to which the state usually resorts when the behavior of a citizen is not consistent with the interests and laws of the state. As a rule, deprivation of citizenship is a sanction against a specific person in connection with their behavior (ibid.). The Kyrgyz Republic, guided by the principle of sovereignty provided for in paragraph 1 of Article 1 of the Constitution of the Kyrgyz Republic, is free to choose how citizenship is legally regulated, wherein the constitutional law must establish the grounds and procedure for deprivation of citizenship, precluding arbitrariness of actions in this regard. Bearing this in mind, the proposed amendment, according to which no citizen can be deprived of his/her citizenship and the right to change his/her citizenship, except in the cases and manner established by constitutional law, cannot be considered a discriminatory norm or unacceptable restriction of the rights and freedoms of a person and citizen. Thus, the Chamber confirmed the constitutionality of this proposed amendment and justified it by referring to the principle of sovereignty.
The 2016 constitutional amendments were accepted through a referendum (Postanovlenie Sentralnoi Izbiratelnoi Komissii, 2016). The parliament was supposed to adopt two important new laws in this field: the law on nationality and the law on the implementation of international law.
3 Kazakhstan: 2017 Constitutional Amendment Case
In Kazakhstan, there were no apparent tensions or sensitive political cases between the Kazakh authorities and the UNHRC or other UN human rights treaty bodies. Most of the recommendations concerned women’s rights in the context of the Committee on the Elimination of Discrimination against Women (CEDAW) (CEDAW, 2015). However, 2017, when Nazarbayev announced further constitutional reforms and the modernization of democratic institutions, wording that closely resembled the Kyrgyz Constitution also appeared in the Kazakh Constitution. Before the amendment, Article 4 of the Kazak Constitution stated that: “International treaties ratified by the Republic take precedence over its laws and are applied directly, except when it follows from an international treaty that its application requires the issuance of a law” (Constitution of the Republic of Kazakhstan, 1993).
Proposed amendments reformulated the same Article: “International treaties ratified by the Republic have priority over its laws. The procedure and conditions for the operation on the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party are determined by the legislation of the Republic” (ibid.). Much like in Kyrgyzstan, this provision shifted Kazakhstan’s approach to the relationship between domestic and international law from monism to dualism.
It is important to note that in 2009, the Constitutional Council was requested to interpret the same Article to implement the obligations under the Customs Union (now EAEU).
Specifically, the Prime Minister of the Republic of Kazakhstan requested the Council interpret Article 4 and explain how to implement decisions of the Commission of the Customs Union, of which Kazakhstan was a member state and the treaty ratified by Kazakhstan.
The Council (Normativnoe postanovlenie, 2009) stated that although the Constitution of Kazakhstan did not contain a special rule providing for the possibility of the transfer/delegation of certain state powers to international organizations, this right can be deduced from the preamble and Article 8 of the Constitution. The preamble stipulated that the people of Kazakhstan want to occupy a worthy place in the world community, and Article 8 of the Constitution requires respect for the principles and norms of international law on pursuing a policy of cooperation and good neighborly relations between states (Constitution of Republic of Kazakhstan, 1993). As a member state of international organizations, Kazakhstan must carry out all the necessary organizational and legal measures to fulfill such a requirement, including harmonizing domestic law. Therefore, the Council concluded that the Commission of the Customs Union acts are binding under the Treaty. In case of a conflict between the actions of the Commission and other regulatory legal acts of the Republic of Kazakhstan, then, as a rule, the legal norm adopted by the Commission shall prevail. At the same time, the Council underscored that decisions of international organizations and their bodies cannot violate the Constitution's provisions that guarantee the Republic's sovereignty. It also underscored the inadmissibility of changing the unitarity and territorial integrity of the state, which is the form of government of the Republic established by the Constitution.
With this decision in mind, let us analyze the 2017 constitutional amendments case. Unlike the Kyrgyz Constitutional Chamber, the Council of Kazakhstan did not examine each proposed provision separately, instead, the decision included one overarching justification, presumably applicable to all provisions. The Council stated that a number of the amendments and additions to the Constitution (Zakon Respubliki Kazakhstan, 2017) introduced by the law aimed at ensuring its supremacy in the system of existing law and its unconditional execution throughout the country, improving state management, strengthening the protection of citizens’ constitutional rights and freedoms, and ensuring their constitutional duties are fulfilled (Normativnoe postanovlenie, 2017). The Council went on to state that the entire recent history of the formation and development of Kazakhstan as an independent, strong, and thriving state with a developed civil society is the result of the adoption of modern constitutional values and the fundamental principles of the Republic of Kazakhstan, as well as their subsequent implementation. Furthermore, the Council continued that the proposed amendments filled the constitutional values and basic principles of the Republic with new content. Thus, as is evident, the reasoning resembled more of a proclamation than a judicial decision. It did not analyze the relationship between domestic and international law. It disregarded the previous interpretation of that relationship presented by the Council in the context of the Customs Union (Normativnoe postanovlenie, 2009).
In addition, the proposed amendments included a new norm on the revocation of citizenship. Before the amendments, the provision stated: “Under no circumstances may a citizen of the Republic be deprived of citizenship, the right to change their citizenship, nor can they be expelled from Kazakhstan.” After the amendments, it stipulated: “Deprivation of citizenship is allowed only by a court decision for the perpetration of terrorist crimes, as well as for causing other grave harm to the vital interests of the Republic of Kazakhstan.” It is essential to highlight that, much like in Kyrgyzstan, before the amendments to the Constitution, the Kazakh parliament amended the law on citizenship, regulating the possibility of revocation in the case of involvement in terrorist activities (Zakon o vnesenii Izmeneiy, 2015).
As in the previous part of the reasoning, on this issue, the Council did not provide a detailed analysis of the revocation of citizenship, preferring instead to resort to general terms. It stated that the proposed amendments upgraded the degree of protection of human rights and freedoms. In the Council’s opinion, this was reflected in the following ways (Normativnoe postanovlenie, 2017). First, the Commissioner for Human Rights gained constitutional status. Second, the judicial system and prosecutor’s office had been strengthened. Third, the president was given the power to challenge the constitutionality of already promulgated laws in the Constitutional Chamber. Furthermore, strengthening parliamentary control over the government and the institution of constitutional authority is an essential step in developing a democratic and legal state, testifying to the Republic's commitment to the rule of law (ibid.).
Although not explicitly stated, based on the abovementioned reasoning, one can assume that the Council was suggesting that these new provisions aimed to create a new national mechanism of human rights protection. Thus, similar to the issue of international human rights norms, the Council also promoted the principle of sovereignty in the case of revocation of citizenship.
4 Tajikistan: 2016 Constitutional Amendment
Tajikistan was no exception regarding the wave of constitutional amendments in the region. Article 14 was amended as follows: “Restrictions on the rights and freedoms of a person and citizen are allowed only to ensure the rights and freedoms of others, ensuring public order, protecting the foundations of the constitutional order, ensuring state security, national defense, public morality, public health, and the territorial integrity of the republic” (Constitution of the Republic of Kazakhstan, 1994). Furthermore, the norm on citizenship was revised to state the following: “The procedure for the acquisition and termination of citizenship of the Republic of Tajikistan is governed by constitutional law” (ibid.).
The court was asked to review the constitutionality of the proposed amendments, but its reasoning needed a more consistent, clear, and specific test. The court, in general terms, stated that the proposed changes to the Constitution corresponded to the current stage of development of the state and society and were aimed at strengthening the foundations of the constitutional system, protecting human rights and freedoms, strengthening the constitutional status of citizenship, legislative, executive, and judicial power, development of local governments, and active involvement of citizens, especially young people, in political life and government (Postanovlenie Konstitucionnogo Suda, 2016). However, the court should have specifically analyzed or discussed examples of how exactly these amendments achieve the aims as mentioned earlier. Moreover, no detailed analysis was conducted on the limitation of rights or citizenship revocation.
5 Geopolitics and External Influence in Central Asia
The rights-related jurisprudence of Central Asian CCs revealed that in the context of the relationship between the norms of international human rights law and domestic law, these states are shifting from monism to dualism while adopting a pluralistic approach in the context of the relationship between the norms of regional organizations, such as the EAEU, and domestic law. This is an alarming tendency. Therefore, discussion of this issue is vital and contributes to the global discourse on judicial review. To comprehend the magnitude of the problem, it is important to contextualize these courts in a broader geopolitical context, particularly considering Russia and China's external influence.
Since the famous sentence from the Lotus decision claimed that “restrictions upon the independence of states cannot be presumed” (PCIJ, 1927), the concept of sovereignty has been undergoing dramatic changes. Depending on the circumstances, different states and scholars have argued for a strictly positivist interpretation of Lotus, while others have advocated a more normative understanding. This dissonance was particularly evident in a split ICJ decision on the Congo arrest warrant case (ICJ, 2002). In his book From Apology to Utopia, Martti Koskenniemi argues that states and their claim to sovereignty are always approached from two perspectives: Apology (personal interest) and Utopia (object/normative). Koskenniemi claims that the only way the international or global legal order can survive is by constantly balancing these two perspectives “from emphasizing concreteness to emphasizing normativity and vice versa” (Koskenniemi, 2009). Recent developments in human rights law, humanitarian law, international criminal law, and the emergence of such concepts as humanitarian intervention, R2P, and the emphasis on the rights of people to self-determination have complicated the issue of sovereignty even more. The wave of global constitutionalism, which departed from the traditional majority rule understanding of democracy and moved toward a concept more focused on human rights, created a tendency within the texts of constitutions to adopt the monistic approach to the relationship between international and domestic law (Kumm, 2009; Krisch, 2007).
Central Asia’s bond with Russia remains strong due to historical ties, strategic considerations, and security and terrorism threats. With the establishment of the EAEU, Russia is also trying to dominate the trade and economic policies in the region (Kembayev, 2016b). Russian influence extends beyond foreign affairs but substantially impacts internal political dynamics in these states (Roberts, 2015). For instance, whatever law the Russian Federation adopts has a subsequent “chilling” effect on Central Asia. Since 2012, Russian domestic and foreign policy has emphasized territorial integrity, sovereignty, and non-interference, reflected in the adoption of several laws. In 2012, Russia adopted the so-called “Foreign Agents Law”, which tightened the regulation of NGO activities (Federalniy Zakon, 2012). Then, in 2016, the Russian parliament passed what was referred to as the “Yarovaya Law”, which tightened regulations on extremism (including religious), counterterrorism, and surveillance (Federalniy Zakon, 2016a, 2016b). In 2019, the Russian parliament adopted two more controversial laws: the first “on banning fake news and insulting the state” (Federalniy Zakon, 2019) and the second on “sovereign internet” (Federalniy Zakon, 2019).
This trend toward sovereignty, security, and counterterrorism in Russia was soon followed by a wave of analog laws in Central Asia. Tajikistan (Zakon Respubliki Tadjikistan, 2015), Uzbekistan (Zakon Respubliki Uzbekistan, 2014), and Kazakhstan (Zakon Respubliki Kazakhstan, 2015) amended laws on NGOs to incorporate elements of the “foreign agent” concept. Laws on extremism and mass media were significantly tightened in Tajikistan.Footnote 4 The Kyrgyz parliament attempted to adopt a “foreign agent law” and amend its mass media law similarly. Still, under pressure from civil society, the bills were shot down (The Guardian, 2016). Nevertheless, from time to time, this latter bill reappears on the agenda. In light of recent laws adopted in Russia on sovereign internet and banning fake news, experts predict that similar laws may soon be adopted in Central Asia (Ridgwell, 2018). If this happens, the constitutional courts will likely review these laws’ constitutionality.
Furthermore, a wave of constitutional amendments took place in Kazakhstan, Kyrgyzstan, and Tajikistan, and incremental changes can be seen in Uzbekistan (Zakon Kyrgyzskoi Respubliki, 2016; Zakon Respubliki Kazakhstan, 2017; Zakon Respubliki Uzbekistan, 2017). These reforms were presented as a project of democratization, modernization, and parliamentarian, yet from the perspectives of fundamental rights and freedoms; the constitutional amendments reflected one typical pattern: they reemphasized the importance of sovereignty and security and created a possibility for citizenship revocation (ibid.). Furthermore, a tendency to reconsiderFootnote 5 the place of international treaties and norms in the hierarchy of the domestic legal system can also be observed in the region (Zakon Kyrgyzskoi Respubliki, 2016; Zakon Respubliki Kazakhstan, 2017; Zakon Respubliki Uzbekistan, 2017). This shift can be placed into a broader context of emerging scholarship, which suggests that Russia’s new approach to international law (Mälksoo, 2009, 2015; 2016) is (re)shaping its relationships with international organizations and their bodies (Mälksoo, 2016).
Some Russian and Western scholars argue that the failure of the post-Cold War international system to integrate Russia into the Western world resulted in these political events and their current implications for international law, precisely the rapidly emerging idea of a Russian approach to international law (The Economist, 2019). Sakwa argues that contrary to Russia’s expectations of becoming part of the “Greater West”, NATO, the EU, and the “historical West” claimed all victory in the Cold War and established an international legal order predominantly based on Western values that did not include Russia (Sakwa, 2017). This approach, it is argued, is the reason for Russia’s aggressive behavior, which led to the annexation of Crimea, the invasion of Ukraine, and a move toward the East (White, 2011). Thus, Russian foreign policy underwent a certain shift, leading to the unprecedented cordiality of the Sino-Russian relationship (Ukaz Prezidenta RF, 2016). Scholars also claim that Russia is now forming and advocating its own approach to international law, which is first, grounded on the classic and strong concept of state sovereignty; second, views the international community as relatively weak; third, denies cosmopolitan, liberal constitutionalist ideas of international law (Mälksoo, 2015). Finally, it is important to note that these events have a significant impact on Central Asia as well, because, after the annexation of Crimea, Russia actively started building various regional economic, security, and other unions that many claim mimic Western institutions such as the EU and NATO in the post-Soviet world (Cooley, 2019).
One of those institutions is the Eurasian Economic Union (EAEU), which currently comprises Russia, Belarus, Kazakhstan, Kyrgyzstan, and Armenia and is expected to ultimately include all Central Asian states (Treaty on the EAEU, 2000). Although the benefits of these regional unions for Central Asian states are highly contested (Vinokurov, 2017; Alimbekov et al., 2017; Khitakhuranov, 2017; EDB, 2017), the abovementioned states still joined the EAEU. Russia targeted Kazakhstan, Kyrgyzstan, and Tajikistan by providing stabilization grants and loans, securing an extension of military facilities for these states, and providing benefits for labor migrants from Central Asia in Russia, since Kyrgyzstan and Tajikistan’s economies are heavily dependent on remittances from migrants in Russia (Pomfret, 2019).
Finally, just as Russia is developing its approach to international law, which is grounded on solid state sovereignty, China, too, has this approach. This is primarily discussed in the works of Chinese scholars and rarely in the dominant Western international law literature. From the beginning, it is argued that China was a persistent objector to the Westphalian system of international law and the notion of self-determination. Instead, China insisted on border delimitation (Anonymous, 2010). Roughly speaking, the logic of this approach is as follows: the powers agree on all territories on the historical principle (Perdue, 2005), and agreements on territorial division occur “at the expense of other nations sandwiched between them” (Anonymous, 2010).
Furthermore, scholars suggest that before the emergence of different fields of international law, such as international trade law as governed by the World Trade Organization (WTO) and other areas of economic law, China was skeptical about this system (Rühlig, 2018) and was less active. However, now, in the context of international economic law (Storey, 2012; ICG, 2012; Hameiri & Jones, 2016), “China is eager to participate in its formulation to help realize her vision for the global order” (Tirkez, 2018). This specific Chinese approach to international law may very well affect Central Asia, and some signs of this happening are already emerging (International Crisis Group, 2012). For instance, Tajikistan (Putz, 2019) ceded part of its territory to China instead of loan repayments in 2011 (Eurasianet, 2019), and the main narrative of the Tajik government was that this was justified by a preexisting historical agreement (Glushkovo, 2011). Furthermore, China is actively investing in and supporting activities such as “joint archeological exploration,” and it is unclear what its specific purposes. Central Asian states must be cautious about this, and constitutional courts must also consider this geopolitical context when adjudicating cases on the relationship between international and domestic law (Wang, 2019).
In her book Is International Law International? Anthea Roberts argues that Western parochialism in international law threatens the existing system of international law (Roberts, 2019). She urges that there is a need to diversify perspectives, diversify networks, and stop taking a blinkered view when discussing issues of international law (ibid.). Roberts’ main argument is that during the Cold War, we lived in a bipolar balance of power. The post-Cold War period created something called unipolar power, namely universal international law. However, we live in a competitive world order established in a multipolar era. Roberts emphasizes that currently, there is a solid challenge for international law from such states as Russia and China. According to Roberts, the international legal order is divided into parallel worlds, where the same international issues have different narratives from a global law perspective, and no equal and reasonable dialogue occurs.
Central Asian states, particularly constitutional courts, should consider these challenges when they use international norms to justify their decisions in the context of rights protection (Peters, 2011). The practical implementation of the UNHRC’s findings on these states’ territory before and after constitutional amendments mainly depended on the goodwill of its authorities. And the performance of these decisions beyond the borders of those states has never been associated with constitutions. Thus, adopting a pluralistic approach in the context of regional security, economic, and counterterrorism organizations, where these norms prevail over domestic models, and at the same time taking a dualistic approach in the context of international human rights norms, where the priority is given to national norms, these courts risk driving the entire region to be absorbed by Russian and Chinese approaches to international law.
6 Conclusion
This chapter revealed that in Central Asia, these courts’ internal political dynamics and fundamental rights-related jurisprudence are being shaped by external geopolitical factors. One can observe, for instance, an emerging shift among these courts from monism to dualism when it comes to the norms of international law, particularly in the field of human rights protection, and a pluralistic approach regarding examples related to regional organizations. The author of this chapter argues that such a two-fold trend in the treatment of the means of international law is an alarming tendency in the Central Asian states.
Thus, in light of recent legal changes in Central Asia affecting the position of international law in national constitutional orders, there is little hope that references to international law will reinvigorate constitutional jurisprudence on fundamental rights in the region. Moreover, Central Asian constitutional courts are very likely to face new rules emanating from Russia which limit fundamental rights, particularly in the context of the laws regulating security, antiterrorism, and “foreign agents”. However, due to local political power dynamics and the emerging sovereigntist turn, the constitutional courts are unlikely to find these laws unconstitutional, no matter how much international human rights institutions, such as the UNHRC, condemn them.
Notes
- 1.
- 2.
Uzbekistan refused to extend its membership in 1994. For further details, see: Protokol o Prodlenii Dogovora o Kollektivnoi Bezopasnosti [Protocol on prolongation of the treaty on Collective Security] (1994).
- 3.
According to the official figures provided, 408 people were killed, 2,574 people were injured. For more details, see: Zakluchenoe Nacionalnoi Komissii (2011).
- 4.
For more analysis of these laws and their implications, see the recent concluding observation of the CCPR: UN Human Rights Committee (HRC) (2019).
- 5.
Before this development, the relationship between domestic and international law in Russia reflected the monist approach. For more information on this issue, see Butler (2007).
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Toktogazieva, S. (2024). Human Rights Adjudication in Central Asia. In: Mihr, A., Pierobon, C. (eds) Polarization, Shifting Borders and Liquid Governance. Springer, Cham. https://doi.org/10.1007/978-3-031-44584-2_7
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