INTERNATIONAL TREATIES IN THE LEGAL SYSTEM OF TURKMENISTAN/Türkmenistan Hukuk Sisteminde...

Law & Justice Review, Volume: IV, Issue: 2, December 2013

INTERNATIONAL TREATIES IN THE LEGAL SYSTEM OF TURKMENISTAN

Türkmenistan Hukuk Sisteminde Uluslararası Andlaşmalar

Dr. Süleyman Sırrı TERZİOĞLU*

ABSTRACT

After gained its independence, Turkmenistan needed to conclude many treaties for accessing the world community. Nevertheless as the foreign relations were executed via Moscow in the Soviet period, there was not any domestic law regulation on the international treaties in Turkmenistan. The necessity to such regulation after the independence caused to adopt the Turkmenistan Law on the International Treaties of Turkmenistan. The Law basically has brought the “ratification” procedure for treaties. In Turkmen legal system, there is no hierarchy between the international treaties and laws; however treaties are given have priority in the case of any conflict. Thus, it can be argued that the international treaties are not sublevel in comparison to laws hierarchically but at the same level with laws and have implementation priority. The Constitution of Turkmenistan has given the constitutional status to the rules of international law related to the permanent neutrality, and Turkmenistan has assumed international responsibilities related to the permanent neutrality on the constitutional level.

Key Words: Turkmenistan Constitution, International Treaties, Vienna Convention

ÖZET

Türkmenistan bağımsızlığını elde ettikten sonra uluslararası topluma katılmak için birçok andlaşma imzalama gereği duydu. Ancak SSBC devrinde uluslararası ilişkiler Moskova üzerinden yürütüldüğü için bu konuda bir iç hukuk düzenlemesine gidilmemişti. Bağımsızlıktan sonra böyle bir hukukî düzenlemenin gerekliliği, Türkmenistan’ın Uluslararası Andlaşmaları Hakkında Türkmenistan Kanununun kabul edilmesine sebep oldu. Kanun, temel olarak andlaşmalar için “tasdik” uygulaması getirmiştir. Türkmenistan hukuk sisteminde, uluslararası andlaşmalar ile kanunlar arasında hiyerarşik bir sıralama yapılmamış, ancak çatışma durumunda andlaşmalara öncelik verilmiştir. Bu durumda uluslararası andlaşmaların kanunlardan hiyerarşik olarak daha alt seviyede olmadığı, kanun seviyesinde olduğu, ancak uygulama önceliği verildiği sonucunu çıkarabiliriz. Türkmenistan Anayasası, daimî tarafsızlıkla ilgili uluslararası hukuk kurallarına anayasal statü vermiş ve Anayasal düzeyde Türkmenistan, daimî tarafsızlığa ilişkin uluslararası yükümlülükler altına girmiştir.

Anahtar Kelimeler: Türkmenistan Anayasası, Uluslararası Andlaşmalar, Viyana Sözleşmesi

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* Assistant Prof., Yalova University, Law Faculty. E-mail: [email protected]

International Treaties in the Legal System of TurkmenistanDr. Süleyman Sırrı TERZİOĞLU

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INTRODUCTIONIn the process of collapse of the USSR, Turkmenistan firstly proclaimed its sovereignty on 22 August 1990, and then its independence on 27 October 1991. Turkmenistan, which was a federal state of the USSR beforehand1 and bound to the USSR in the foreign relations,2 began to establish relations with other states during sovereignty and later with its independence.After the dissolution of the USSR, one of the issues to be solved was the succession problem.3 In that process, the Russian Federation asserted that she was “the continuing State”4 of the former USSR and defined its legal status according to that concept. According to that view, whole treaties of the USSR will bind the Russian Federation without a separate procedure. The practice, likewise, was in the same direction. But other republics of the USSR were regarded as “successor”5 of the USSR and they fulfilled required procedures in the framework of their new constitutions and regulations to be bound by treaties which were concluded before by the USSR.6 In that context, Turkmenistan also acceded to many of those conventions.7

1 The 1977 Constitution of USSR, Article 71. For the status of the former USSR Republics in international law see James P. Nichol, Diplomacy in the Former Soviet Republics, Westport, Conn., Greenwood Publishing Group, 1995, p. 21

2 According to the Article 80 of the 1977 Constitution, although Union Republics had the right to enter into relations with other states, conclude treaties with them, exchange diplomatic and consular representatives, and take part in the work of international organizations, they could not use those rights. However Ukraine and Belarus were separate members of the UN and parties to a number of conventions. See also ibid., p. 19

3 To solve succession problems after the USSR, the member States of the Commonwealth of Independent States (hereinafter “CIS”) concluded some agreements. Rein Müllerson, International Law, Rights, and Politics: Developments in Eastern Europe and The CIS, London, Watts and Partners Co., 1994, p. 145

4 The concept of the continuing state has different legal consequences from succession. “There is a fundamental distinction between State continuity and State succession: that is to say, between cases where the ‘same’ State can be said to continue to exist, despite changes of government, territory, or population, and cases where one State can be said to have replaced another with respect to certain territory.” James Crawford, The Creation of States in International Law, Oxford, Clarendon Press, 1979, p. 400. For dissolution process see also Müllerson, p. 139; Andrew M. Beato, “Newly Independent and Separating States’ Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union”, American University Journal of International Law and Policy, Volume: 9, No: 2 (1994), pp. 525-558; William Elliott Butler, The Law of Treaties in Russia and the Commonwealth of Independent States: Text and Commentary, Cambridge, Cambridge University Press, 2002; Fuad Hüseynov, “SSCB Dağıldıktan Sonra Halefiyet Sorunları, Avrasya Etüdleri, Sonbahar-Kış, 2003, No: 25, pp. 125-

5 International law defines a succession of States as “the replacement of one State by another in the responsibility for the international relations of territory. See Article 2, common to the Vienna Convention on the Succession of States in Respect of Treaties (1978), and to the Vienna Convention on the Succession of States in Respect of State Property, Archives and Debts (1983).

6 As it is mentioned above, as Ukraine and Belarus were directly the parties of some international treaties in the USSR period, they didn’t need to conclude those treaties again with separate processes.

7 For instance, on 20 December 1996 the Parliament of Turkmenistan (Mejlis) decided to accede to


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Undoubtedly, that case necessitated to fill the legislative gap in Turkmenistan. For this purpose, on 15 June 1995 the Turkmenistan Law on the Procedure of Concluding, Implementing and Denouncing to International Treaties of Turkmenistan8 was adopted by the Parliament of Turkmenistan. However, that Law was abolished by the Turkmenistan Law on the International Treaties of Turkmenistan,9 on 10 May 2010 (hereinafter “Law”). Today the provisions related to international treaties in the Turkmen legal system are found in the Constitution of Turkmenistan and the Turkmenistan Law on the International Treaties of Turkmenistan. Turkmenistan also acceded to the Vienna Convention on the Law of Treaties10 (hereinafter “Vienna Convention”), which is the main instrument of the law of treaties, in 1996.11

In this study, I will try to examine the position of international law and basic principles concerned with international treaties in the Turkmen legal system. I will also examine required conditions12 which Turkmenistan has to fulfill for a treaty to be bound in its domestic law. Therefore I will not consider issues entirely concerned with Turkmen domestic law.

I. THE POSITION OF THE INTERNATIONAL LAW AND INTERNATIONAL TREATIES IN TURKMENISTAN’S LEGAL SYSTEM

A. International Law

The constitutions of many former USSR States have refused the traditional Soviet dualist approach to the implementation of international law in their domestic legal systems.13 As a result of dualist view, the international

the International Covenant on Civil and Political Rights and Optional Protocols which USSR was a party before. For Decision see Türkmenistanın Meclisinin Maglumatları, No: 4/1996, p. 56

8 Also for managing foreign affairs of Turkmenistan, on the same date the Turkmenistan Law on the Status of Turkmenistan’s Representatives in the Foreign Countries (which was abolished by the Turkmenistan Law on the Status of Turkmenistan’s Representatives in the Foreign States, of 4 August 2011) and the Turkmenistan Law on the Turkmenistan’s Consulship in the Foreign Countries were adopted. Besides on the same date, the Parliament of Turkmenistan decided to accession to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. For the decisions of accession of the Parliament in Turkmen see Türkmenistanın Meclisinin Maglumatları, No:1-2/1996, p. 114

9 For Turkmen text Türkmenistanın Meclisinin Maglumatları, No:2-32/201010 UNTS, 1980, Vol. 1155, p. 33111 For the decision of accession of the Parliament in Turkmen see Türkmenistanın Meclisinin

Maglumatları, No:3/199512 Only aspects related to the international law.13 Gennady M. Danilenko, “Implementation of International Law in CIS States: Theory and Practice”,


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liabilities of the Soviet States would be feasible internally only if they were transformed by the legislature into a separate statute or administrative regulation.14

Turkmenistan refers a vague reference to international law in its constitution.15 According to the Constitution of Turkmenistan (hereinafter “Constitution”),16 Turkmenistan recognizes the primacy of generally recognized norms of international law [Article 6(2)].17 Danilenko states that as this provision is included in an article concerning foreign policy, “the primacy of generally recognized norms of international law” may not have domestic effect.18

The term “generally recognized rules of international law” is not clear in the Constitution. Similar provisions are included in some constitutions like the Constitution of Austria19 and the Constitution of Russian Federation.20 The relevant article of the Russian Constitution obviously includes the sources of general international law, in particular customary international law.21 Therefore these terms must be understood as a reference to the customary

European Journal of International Law, Vol. 10 (1991), No 1, p. 51 (hereinafter “European”).14 Gennady M. Danilenko, “The New Constitution and International Law”, The American Journal of

International Law, Vol. 88 (Jul., 1994), No 3, p. 458 (hereinafter “American”). For Soviet dualist view see G. I. Tunkin, International Law, Moscow, Progress Publishers, 1986, p. 92

15 Danilenko, European, p. 5316 Adopted by the People’s Council of Turkmenistan (Khalk Maslahaty) on 18 May 1992. Amendments

and additions introduced by the Constitutional Laws of Turkmenistan of December 27, 1995, December 29, 1999, August 15, 2003, October 2005 and December 27, 2006, September 26, 2008. For translated text in English see http://www.icnl.org/research/library/files/Turkmenistan/constit_en.pdf

Until today 1927, 1937 and 1978 Constitutions were entered into force in Turkmenistan. It is not possible to consider separately constitutional developments in Turkmenistan than the USSR’s. Because Turkmenistan Constitutions were analogously adopted to the 1924, 1936 and 1977 USSR Constitutions. Lastly along with the 1977 USSR Constitution was entered into force, the 1978 Law on the Procedure for the Conclusion, Execution and Denunciation of International Treaties of the USSR was adopted in USSR period. Butler, p. 2; Tunkin, p. 149

17 Article 6 (with last amendment on 26 September 2008)- Being fully invested with the rights of a subject of the world community Turkmenistan adheres in its foreign policies to the principles of permanent neutrality, non-interference in the internal affairs of other countries, rejection of the use of force and participation in military blocks and unions, and contribution to the development of peaceful, friendly and mutually advantageous relations with the countries in the region and the states worldwide.

Turkmenistan recognizes the primacy of generally recognized norms of international law. If the international treaty of Turkmenistan establishes the rules other than those established by the law of Turkmenistan the rules of the international treaty shall be applied.

18 Danilenko, European, p. 5319 Article 9(1)20 Article 15(4)21 Danilenko, American, p. 465


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law and the general principles of law mentioned in the Article 38(1) of the Statute of the International Court of Justice as sources of international law. However, the content and meaning of the uncertain and generic phrase “generally recognized rules of international law” must eventually be defined by court decisions in practice. Because when it is compared with international treaties, customary international law and general principles of law are more ambiguous.

If the uncertainties of the first sentence of the Article 6(2) of the Constitution are left aside, whole meaning of the Article 6, which regulates priority of international law over the national law, seems to indicate that Turkmenistan has adopted the monist approach. This approach is strengthened by the following sentence of the Article 6(2); “if the international treaty of Turkmenistan establishes the rules other than those established by the law of Turkmenistan the rules of the international treaty shall be applied”, and the Article 4(2) of the Law which includes the same provision.

However, these provisions cannot be interpreted as giving primacy or a higher hierarchical status to customary and conventional international law over the Constitution. This regulation of the Constitution gives priority to international law over the domestic law. However, it is not clear in the constitution over which regulations of domestic law (the Constitution or laws) this priority is given. In my opinion, meaning of priority of international law stipulated in the Article 6 of the Constitution refers primacy only over the laws but not over the Constitution itself.

According to all information mentioned above, it can be accepted that if there is a conflict between Turkmenistan law and customary international law or general principles of law, the latter shall prevail. However in the case of conflict between the Constitution and rules of international law, as there is not clear provision about that matter, I will argue that the provisions of the Constitution will be applied above all.

Nevertheless there are some international law restrictions in the Constitutional level in Turkmenistan. Those restrictions are emerged from the permanent neutrality status of Turkmenistan. Turkmenistan adopted the policy of permanent neutrality and the UN General Assembly recognized the status of Turkmenistan by the Resolution on the Permanent Neutrality of Turkmenistan,22 of 12 December 1995. Hereupon the Article 1 of the

22 A/Res/50/80


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Constitution was amended on 27 December 1995 and the permanent neutrality became a constitutional provision. Also on the same date, the Constitutional Law of Turkmenistan on Permanent Neutrality of Turkmenistan23 was adopted. Thus Turkmenistan modified its legislation to suit the requirements of international obligations which can be arisen from the permanent neutrality. The principal limitations which resulted from permanent neutrality status and stipulated in the Article 6(1) of the Constitution are “rejection of the use of force” and “participation in military blocks and unions.” It must be remembered that permanently neutral states are states whose powers to conclude treaties are restricted in terms of international law24 and are bound by obligations which proceed from that status.

B. International Treaties

In Turkmenistan legal system, the position of international treaties within the hierarchical range is ambiguous. The Article 3 of the Turkmenistan Law on the Normative Legal Acts (hereinafter “TLNLA”)25 which regulates the hierarchy of norms in the Turkmen legal system, does not include international treaties.

However this uncertainty is eliminated by the Article 6(2) of the Constitution in one way. According to the Article 6(2), if an international treaty in force in Turkmenistan establishes the rules other than those established by the laws of Turkmenistan, namely if there is a conflict between them, the rules of the international treaty shall be applied. The same provision is repeated in Article 4(2) of the Law. Also in practice, it is possible rather frequently to see similar provisions in Turkmen laws.26 Thus in the case of a conflict between Turkmen laws and international treaties to which Turkmenistan is a party, provisions of the international treaties will be applied. In other words, the legal regulations in force within Turkmenistan shall not be applied, if their applications would be incompatible with treaty provisions. Under this condition, it can be said that the international treaties are not sublevel in comparison to laws hierarchically but at the same level with laws and have an implementation priority.

23 For Turkmen text see Turkmenistan, 28.12.199524 Hüseyin Pazarcı, Uluslararası Hukuk Dersleri, 2. Kitap, 8. Baskı, Ankara, Turhan Kitabevi, 2005,

p. 8925 Adopted on 7 December 2005. For Turkmen text see Türkmenistanın Meclisinin Maglumatları,

No: 3-4/2005, p. 7626 For instance the Law of Turkmenistan on Refugees, Article 2(2), the Law of Turkmenistan on

Religious Freedom and Religious Organizations, Article 2(2).


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All those provisions make the international treaties directly applicable in the Turkmen legal system and national courts must give priority to provisions of the treaties with respect to domestic law.27

In Turkmen legal system, there is no constitutional court which will control the constitutionality of laws. On the implementation of the laws, the Parliament has jurisdiction to interpret laws28 and to determine whether the normative acts of the organs of state power and government are in accordance with the Constitution.29 However, among those powers, the Parliament has no jurisdiction to interpret international treaties or to control over them in terms of conformity with the Constitution and laws. Although there is a Supreme Court in Turkmenistan,30 it has no powers for reviewing constitutionality of laws.

But, those clauses themselves cannot be envisaged as a guarantee for the implementation of international law. National courts may ignore constitutional provisions referring to international law. The actual status of international law will be determined not only by the relevant constitutional clauses but also by the willingness of national courts to rely on that body of law.31

Another clause related to the rules of the international law in the Turkmen Constitution is Article 8. According to the Article 8, foreign citizens and stateless persons shall enjoy the rights and freedoms of a citizen of Turkmenistan, and perform the duties in accordance with the legislation and international agreements of Turkmenistan. Also Turkmenistan extends the right of asylum to foreign citizens and stateless persons according the universally recognized norms of international law and to the procedure established by law. In the framework of this Article, there is no problem; if there is an accord between the Turkmenistan legislation and provisions of international treaties which will be applied to foreigners and the stateless. However, in the case of any conflict, the provisions of the international treaties will be applied according to the Article 6(2) of the Constitution; consequently international law rules which are related to foreigners and stateless will directly affect the Turkmenistan legal order.

27 This is strictly opposite to the dualist approach of the Soviet tradition, which required a special national legislative act before treaty obligations could be implemented.

28 Constitution Article 63(1)29 Constitution Article 63(9)30 Constitution Article 10031 Danilenko, European, p. 53


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The Article 11-1(f) of the Law states that the international treaties which need to provide for the adoption, amendment or repeal of laws of Turkmenistan or establish rules other than those contained in the legislation of Turkmenistan shall be subject to ratification by the Parliament. This regulation aims to prevent conflicts between international treaties and the Turkmenistan legislation. However, despite this clause, if still there is a conflict between them, provisions of treaties will be applied.

II. INTERNATIONAL TREATIES IN TURKMEN LEGAL SYSTEM

According to the Article 1(2) of the Law, irrespective of forms and names of treaties (treaty, agreement, convention, pact, protocol, exchange of letters or notes, other forms and names of international treaties), the Law will be applied to all international treaties of Turkmenistan.

International treaties of Turkmenistan are defined by the Article 2(1) of the Law. According to the clause, international treaties of Turkmenistan are treaties mutually concluded by Turkmenistan with foreign states or international organizations on various issues of international relations, and establish international rights and obligations of the participants. The term “international treaties of Turkmenistan” refers treaties which Turkmenistan is a party.32

According to the definition, the main elements of the treaties of Turkmenistan are the following: Firstly, they must be concluded with international law persons as sates33 or international organizations. According to the international law, contracts which signed with non-international units like firms are not considered as international treaties. Also the unilateral acts of Turkmenistan are not described as international treaties.

Secondly, mutual intentions of parties must create rights and obligations. The intentions which don’t create rights and obligations in comparison to former status are not considered as an international treaty.

Thirdly, compatibility of the intentions must create rights and obligations under international law, in other words, must be governed by international law. If the agreement reached between the parties is effective in terms of

32 This definition is suitable to the doctrine. For comparison see Yusuf Aksar, Teoride ve Uygulamada Uluslararası Hukuk I, Ankara, Seçkin Yayınları, 2012, p. 106

33 The Vienna Convention, which Turkmenistan is a party, regulates only provisions related interstate treaties [Article 2-1(a)].


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domestic law and if responsibility is only claimed within the framework of domestic law, this conformity cannot be described as an international treaty.

Fourthly, Turkmenistan has to execute the required procedures to be bound by those treaties. An instrument, which its binding process is not completed yet, will not come in to force in Turkmen national legal system.

In the case of having all those conditions, form and name of instrument (treaty, agreement, convention, pact, protocol, exchange of letters or notes, other forms and names of international treaties)34 are not important or being in oral or writing form.35 The Law will be applied to all of them.

International treaties of Turkmenistan are divided into three groups in terms of institutions on behalf of whom Turkmenistan will be bound to by the Article 2(2) of the Law:

i) Interstate treaties on behalf of Turkmenistan,

ii) Intergovernmental treaties on behalf of the Council of Ministers (the Government),

iii) Interdepartmental treaties on behalf of ministries and departments.

The Vienna Convention uses the term of the “treaty” as a generic term, and so the term may refer intergovernmental, inter-ministerial or administrative treaties.36 But, as long as the treaty is governed by the international law, this classification doesn’t cause any result in terms of the international law. In my opinion, this separation was regulated to define the procedures which must be observed in Turkmenistan domestic law process.

III. BINDING PROCEDURE TO THE INTERNATIONAL TREATIES FOR TURKMENISTAN

International law leaves the choice of procedure of the consent of a state to be bound by a treaty to internal law. Indeed according to the Article 11 of the Vienna Convention, the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if 34 According to the Vienna Convention, “treaty” means an international agreement concluded between

States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation [Article 2-1(a)].

35 Butler, p. 14. The Vienna Convention regulates the provisions related to international treaties concluded only in written form.

36 Anthony Aust, Handbook of International Law, Second Edition, Cambridge, Cambridge University Press, 2010, p. 50


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so agreed. This provision implies that every state may define its binding procedure with a treaty and authorized organs which can implement by its constitution or domestic legal regulations.37

The means of expressing consent to be bound by treaties for Turkmenistan is analogously regulated Article 3 of the Law according to the Vienna Convention. So the consent of Turkmenistan to be bound by an international treaty may be expressed by signature, exchange of instruments constituting a treaty, approval, ratification, accession to the treaty or by any other means which the Contracting Parties have agreed on.

Binding process with a treaty for Turkmenistan begins with a proposal concerning it. The related units submit their proposal to the required authorities according to classification of the treaty38 (Law, Article 5). After this, in accordance with the classification of the treaties, the President of Turkmenistan or the Council of Ministers adopts decisions on the conducting of negotiations and signing of the treaties.39 The authorities who can issue power for negotiating and signing are pointed out in the Article 7(1) of the Law.40

The President of Turkmenistan and the Minister of Foreign Affairs are authorized for negotiating and signing international treaties without having a special power.41 The head of a diplomatic representation of Turkmenistan in a foreign state or in an international organization has the authority only for negotiating international treaties without having a special power respectively the receiving State or within the framework of this international organization (Law Article 8).42 Also, it is possible to authorize the Speaker of the Parliament for interstate treaties, the Deputies of Chairman of the Council of Ministers for intergovernmental treaties, ministers and heads of departments for interdepartmental treaties.43

37 Melda Sur, Uluslararası Hukukun Esasları, 3. Baskı, İstanbul, Beta Yayınları, 2008, p. 2938 Interstate, intergovernmental or interdepartmental39 Law Article 640 Those matters are internal law questions and out of our study.41 As Turkmenistan is a state whose government takes the form of a presidential republic (Constitution

Article 1), there is no prime-ministry institution in the Constitutional system of Turkmenistan.42 See the Vienna Convention Article 7(2)43 Law Article 7(2)


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IV. RATIFICATION OF INTERNATIONAL TREATIES AND ENTERING INTO FORCE IN TURKMEN DOMESTIC LAW

Proposals concerning the ratification of treaties are submitted to the President of Turkmenistan by the Ministry of Foreign Affairs, either independently or in coordination with other Ministries or departments. The President adopts decisions to send treaties to the Parliament for ratification.44 So the power of ratification of treaties belongs to the Parliament45 [Constitutions Article 63(10), Law Article 11(1)].46

The Article 11(1) of the Law enumerates categories of the treaties which are subject to ratification of the Parliament as below:

i) Related to fundamental rights and freedoms,

ii) On friendship, cooperation and mutual assistance treaties,

iii) On the mutual renunciation of the use of force or threat of force,

iv) Peace treaties,

v) Border treaties,

vi) Treaties changing the legislation of Turkmenistan,

vii) Defense and security treaties,

viii) Multilateral and long-term economical treaties,

ix) On the international unions and other unions,

x) Treaties that the Parties agreed upon its ratification.47

International treaties are negotiated in the International and Inter-parliamentary Relations Committee of the Parliament. The Parliament ratifies treaties as a “decision.” If the treaties are ratified, the Speaker publishes them. Later, on the basis of the decision concerning ratification, the President signs

44 Law Article 1245 The Parliament of Turkmenistan is regulated by Articles between 59 and 71 of the Constitution. It

is the legislative organ and consists of elected 125 members. For Turkmen Constitutional system and The Parliament of Turkmenistan see Murat Hayıtov-A. Hayıtlıyev-İ. Kerimov, “Türkmenistan’ın Konstitutsiyon Gurluşının Esasları”, (Ed. S. A. Nıyazov), Türkmenistan (Kiçi Ensiklopediya), Ashgabat, 1996, pp. 125-159; Murat Hayıtov, “Türkmenistan’ın Meclisi”, Türkmenistan’ın Dövlet ve Hukuk Esaslarından Materiallar, Ashgabat, Magarıf Neşriyatı, 1997, pp. 38-42

46 Before the amendment of the Constitution, exceptionally, treaties concerned with international unions and other unions had to be ratified by the People’s Council of Turkmenistan (Khalk Maslahaty).

47 Law Article 11(2)


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the instrument of approval.48 Also according to the TLNLA, international treaties and agreements are ratified and denounced by the decision of the Parliament (TLNLA Article 9).49 Turkmenistan legal system distributes the consent of the State to be bound by a treaty in shares between legislative and executive organs. Although treaties are basically ratified by the Parliament, the procedure is completed by the approval of the President.

The decisions of the ratification of the Parliament are officially published in Türkmenistanın Meclisinin Maglumatları.50 If there is no provision in the Decision itself related to the date of validity, Decisions of the Parliament enter into force after ten days of its publication as laws of Turkmenistan.51

The treaties concluded on behalf of Turkmenistan and the treaties which Turkmenistan acceded by the decisions of the Parliament are published in Türkmenistanın Meclisinin Maglumatları and also the newspapers Turkmenistan and Netralniy Turkmenistan.52 The treaties concluded by the Council of Ministers on behalf of Turkmenistan and not subject to ratification are published in the Türkmenistanın Prezidentinin Namalarının ve Türkmenistanın Hökümetinin Çözgütlerinin Yıgındısı.53 Interdepartmental treaties are published in the publications of the related ministries and departments.54

The authentic texts of international treaties concluded by Turkmenistan written in foreign languages are published in one of these languages together with the official translation into Turkmen.55

V. TREATIES NON-REQUIRING RATIFICATION OF THE PARLIAMENT AND ACCESSION TO TREATIES

That which treaties are not subject to ratification of the Parliament is not explicitly clarified in the Law. As the treaties requiring the ratification of the Parliament are enumerated in the Article 11 of the Law, as mentioned above before, the treaties which are not stipulated in this Article will be concluded

48 Law Article 13(2)49 According to the Constitution, the Parliament has also the power of denouncing apart from ratification

[Article 63(10)].50 TLNLA Article 3451 TLNLA Article 25, 27, 2952 Law Article 24(1)53 Law Article 24(2)54 Law Article 24(4)55 Law Article 24(3)


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by the approval of the executive organ. In other words, it is possible to be bound by an approval to the treaties which do not require ratification.

The approvals of the interstate or intergovernmental treaties which do not require ratification of the Parliament but must be approved are implemented by the President. The approvals of the interdepartmental treaties are implemented by the Council of Ministers.56

The Article 15 of the Law also regulates a kind of treaty which does not require ratification or approval. According to this, treaties concluded by the Ministry of Foreign Affairs or by other ministries and departments through exchange of letter or notes enter into force from the day of exchange without the ratification or a subsequent approval.

The procedure on accession to treaties is regulated in the Article 16 of the Law. The Law separates the decisions regarding treaties into three categories. Decisions of accession are adopted by:

i) The Parliament in accordance with the proposal of the President - for treaties requiring ratification,

ii) The President - for treaties which do not require ratification and are acceded by the Council of Ministers,

iii) The Council of Ministers - for interdepartmental treaties.

CONCLUSION

After gained its independence, Turkmenistan needed to conclude many treaties for accessing the world community. Nevertheless as the foreign relations were executed via Moscow in the Soviet period, there was not any domestic law regulation on the international treaties in Turkmenistan. The necessity to such regulation after the independence caused to adopt the Law. The Law tries not to conflict with the Vienna Convention and tries to be harmonious with the international legal system on the international treaties.

In Turkmen legal system, there is no hierarchy between the international treaties and laws; however treaties are given have priority in the case of any conflict. Thus, it can be argued that the international treaties are not sublevel in comparison to laws hierarchically but at the same level with laws and have implementation priority.

56 Law Article 15


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The Constitution of Turkmenistan has given the constitutional status to the rules of international law related to the permanent neutrality, and Turkmenistan has assumed international responsibilities related to the permanent neutrality on the constitutional level. Other international law rules have implicitly remained sublevel in comparison to the Constitution hierarchically.

The Law basically has brought the “ratification” procedure for treaties. The treaties which are subject to ratification have become binding by the acts of the Parliament and the President together. As the treaties requiring ratification are enumerated in the Article 11 of the Law, the treaties which are not stipulated in this Article will be concluded by approving. Also the Law has been regulated accession procedure to international treaties. Thus, it can be said that the silence of law related to concluding of treaties in the Turkmen legal system has been removed by the Law.

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BIBLIOGRAPHY

Aksar, Yusuf; Teoride ve Uygulamada Uluslararası Hukuk I, Ankara, Seçkin Yayınları, 2012

Aust, Anthony; Handbook of International Law, Second Edition, Cambridge, Cambridge University Press, 2010

Beato, Andrew M.; “Newly Independent and Separating States’ Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union”, American University Journal of International Law and Policy, Volume: 9, No: 2 (1994)

Butler, William Elliott; The Law of Treaties in Russia and the Commonwealth of Independent States: Text and Commentary, Cambridge, Cambridge University Press, 2002

Crawford, James; The Creation of States in International Law, Oxford, Clarendon Press, 1979

Danilenko, Gennady M.;“Implementation of International Law in CIS States: Theory and Practice”, European Journal of International Law, Vol. 10 (1991), No 1

“The New Constitution and International Law”, The American Journal of International Law, Vol. 88 (Jul., 1994), No 3

Hayıtov, Murat vd.; “Türkmenistan’ın Konstitutsiyon Gurluşının


87


Esasları”, (Ed. S. A. Nıyazov), Türkmenistan (Kiçi Ensiklopediya), Ashgabat, 1996

Hayıtov, Murat; “Türkmenistan’ın Meclisi”, Türkmenistan’ın Dövlet ve Hukuk Esaslarından Materiallar, Ashgabat, Magarıf Neşriyatı, 1997

Hüseynov, Fuad; “SSCB Dağıldıktan Sonra Halefiyet Sorunları, Avrasya Etüdleri, Sonbahar-Kış, 2003, Sayı 25

Müllerson, Rein; International Law, Rights, and Politics: Developments in Eastern Europe and The CIS, London, Watts and Partners Co., 1994

Nichol, James P.;Diplomacy in the Former Soviet Republics, Westport, Conn., Greenwood Publishing Group, 1995

Pazarcı, Hüseyin;Uluslararası Hukuk Dersleri, 2. Kitap, 8. Baskı, Ankara, Turhan Kitabevi, 2005,

Sur, Melda; Uluslararası Hukukun Esasları, 3. Baskı, İstanbul, Beta Yayınları, 2008

Tunkin, G. I.; International Law, Moscow, Progress Publishers, 1986

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Türkmenistan, 28.12.1995

Türkmenistanın Meclisinin Maglumatları: No:3/1995, No: 4/1996, No:1-2/1996, No: 3-4/2005, No:2-32/2010

United Nations-Treaty Series (UNTS), 1980, Vol. 1155

INTERNATIONAL TREATIES IN THE LEGAL SYSTEM OF TURKMENISTAN/Türkmenistan Hukuk Sisteminde...

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Transcript of INTERNATIONAL TREATIES IN THE LEGAL SYSTEM OF TURKMENISTAN/Türkmenistan Hukuk Sisteminde...