Central Asian Yearbook of International Law and International Relations

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Issue 1, 2022 Expand all abstracts

The International Law Scholarship in Central Asia: New Voices

Authors Sergey Sayapin and Rustam Burnashev
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Sergey Sayapin
Sergey Sayapin LLB, LLM, Dr. iur., PhD is an Associate Professor and Associate Dean at KIMEP University’s School of Law (Almaty, Kazakhstan),

Rustam Burnashev
Dr. Rustam Burnashev is an Associate Professor at the Kazakh-German University’s Faculty of World Politics (Almaty, Kazakhstan),

Access_open The Concept of Humanity in International Criminal Law

Keywords humanity, laws of humanity, principle of humanity, crimes against humanity, humanness, international law, international criminal law, Roman law, natural law
Authors Rustam Atadjanov
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    It is difficult to find a more ambiguous and multifaceted category than the concept of humanity. This is all the more striking considering its widespread appearance and countless invocations in legal, political, ethical, social and cultural spheres, expressly or otherwise. Among the words several different connotations are mankind, humaneness, human dignity and human nature. But there is no explicit or accepted definition of the term “humanity” in international legal documents or in relevant case law. Often used in the legal literature, first of all with reference to the famous Martens’ Clause, the concept of “humanity” does not yet have a comprehensive formulation in international criminal law or in other relevant branches of law, for that matter. To tackle the issue, the present article argues that in order to properly assess the role of such a multifaceted but subjective notion in the law dealing with international crimes, it first needs to be considered from a wider perspective, i.e., from the point of view of international law, so as to facilitate its analysis from a more focused perspective, namely, with a view to better understanding a particular category of crimes under international law. After a very brief study, several conclusions are offered. One of them is that the notion of humanity found itself constantly reinstated in different civilizations and societies under various formulations and sometimes containing starkly differing elements but always embodying the same fundamental and basic values, or humanitarian sentiments. Another conclusion concerns the legal aspects of the concept: neither humanity nor its related notions (“principle of humanity”, “laws of humanity”) carry a strictly legal nature – in the sense of understanding a legal norm, rule or principle. But the so-called elementary considerations of humanity belong to certain general and well-recognized principles, which are exacting both in peacetime and war and upon which the state obligations are to be based. Finally, no other category of crimes is so closely related to the idea of humanity as the category of crimes against humanity. They are harmful to human beings’ most fundamental interests. Therefore, to describe them as the umbrella concept encompassing all those interests has to be fundamental and comprehensive, too. The article offers such a concept: “humanity” under the context of international criminal law and the law of crimes against humanity should be understood as “humanness”, or the status/quality of being human. Crimes against humanity attack humanity as such; hence, their title is justified and needs no replacement. Moreover, this interpretation not only encompasses all sub-elements of humanness but, furthermore, makes it possible to develop a holistic theory of crimes against humanity that reflects and explains these crimes’ unclear protective scope. That theory preliminarily labelled “the theory of humanness” (and laid out by the author in more detail elsewhere) enables us to answer not only the conceptual question of “what is humanity?” but also the normative one, i.e., why crimes against humanity must be criminalized and prosecuted.

Rustam Atadjanov
Rustam B. Atadjanov, LLB, LLM, Dr.iur., PhD, is currently an Assistant Professor of Public and International Law at KIMEP University School of Law, Almaty, Kazakhstan.

The Legal Character of Due Diligence: Standards, Obligations or Both?

Keywords due diligence, standard, obligation, diplomatic law, protection of aliens, international environmental law, law of the sea, international human rights law
Authors Katja L.H. Samuel
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    The concept of due diligence and its associated legal principles and obligations are of increasing significance in the global arena. Yet its definition, parameters and potential reach are often not clearly identified or understood. Notably, there can be a tendency, including by academics, courts and tribunals, to conflate due diligence standards with corresponding obligations, partly attributable to unclear and fluid definitional contours.
    Attaining increased clarity between what is merely influential and what is formally binding is important since different legal consequences can ensue in the event of their breach. Whereas no formal consequences will accompany non-compliance with a non-legally binding standard, the breach of a primary rule or obligation can trigger international responsibility as articulated in the International Law Commission (ILC) Articles on State Responsibility 2001.
    Specifically, the article examines whether due diligence constitutes a non-binding interpretative standard for other obligations and/or creates its own binding obligations; the contexts in which standards and obligations tend to exist; and the associated normative parameters of these findings. These issues are examined in legal contexts where due diligence is most developed – diplomatic law, the protection of aliens, international environmental law, law of the sea and international human rights law – although its findings are of wider significance. An overarching aim is to develop a generically applicable framework of global relevance on this important but largely under-researched issue. As such, it is expected to have significant impact potential.

Katja L.H. Samuel
Katja L.H. Samuel is the Director of Global Security and Disaster Management Limited; formerly Associate Professor of Global Security and Disaster Law, University of Reading, UK.

Obligation to Combat Corruption as Erga Omnes Obligation in Customary International Law and Jus Cogens

Keywords International Anticorruption Law, international responsibility, jus cogens
Authors Sultan Sakhariyev
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    In the era of globalization, international trade and cooperation, the era of human rights, rule of law and equality as universal values of the civilized world, corruption is most inimical to the peaceful and sustainable development of mankind. This article deals with the nature of corruption under international law and suggests possible solutions to the issue of corruption on the international level.
    Corruption in any form amounts to material or procedural deviations from norms of law that lead to unpredictable behavior of all subjects of law, chiefly all state bodies, and thus states. This unpredictability is an obstacle to international trade, investments, migration, tourism, protection of human rights, cooperation, etc.
    This article studies the most recent scholarly works and analyzes, from a comparative perspective, the general features of corruption, anticorruption laws of several states with different legal systems, demonstrating that the notion of corruption has common features in different nations and cultures and in different international conventions, such as the United Nations Convention against Corruption.
    The article also studies the nature of states’ obligation to combat corruption as an obligation under customary international law, as obligation erga omnes, and as the jus cogens norm. A separate section is devoted to the study of a nonrecognized human right to freedom from corruption.
    The aim of the article is to explore the possibility of creating international tools of joint combat on corruption in a given specific state through the recognition of the erga omnes nature of the obligation to combat corruption.
    Provided that all states have an ipso facto positive obligation to combat corruption, we may look at this obligation from the point of view of state responsibility for its violation.
    As corruption damages the state mechanism and results in the state’s inefficiency in performing its tasks, both in domestic and foreign affairs, corruption in one state leads to complications for all other states in matters related to this one state. And in a globalized world the scale of such complications is enormous.
    Thus, the perception of the obligation to combat corruption as obligation erga omnes is valid and leads to the necessity of creating effective international tools to combat corruption and to bring states to international responsibility for ineffective or hypocritical combat on corruption to the specified extent. Finally, the article examines the existing international mechanisms of cooperative combat of corruption on the international level.

Sultan Sakhariyev
Sultan Sakhariyev has graduated from KIMEP University School of Law in Almaty, Kazakhstan with LLM degree (Cum Laude) in International Law. After graduation, Sultan Sakhariyev has been practicing law in international consulting companies and law firms, where Mr. Sakhariyev had to represent clients’ interests before state authorities. Mr. Sakhariyev also gained extensive experience in litigation and in criminal proceedings.

The Right to Work Obligations of an Occupying Power

The Challenge of the Mode of Applicability of Human Rights and Humanitarian Law

Keywords right to work, right to employment, military occupation, lex specialis, concurrent application, rights during armed conflict
Authors Selbi Durdiyeva
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    Whereas it is no longer a concern whether international human rights law (IHRL) is applicable during an armed conflict, the mode of applicability represents a challenge, particularly in view of the potentially limiting doctrine of lex specialis. The article argues that IHRL provisions on the right to work can contribute positively to the rather scarce provisions on the same right in occupation law. The inherent clash between the applicability of IHRL and international humanitarian law (IHL) lies in the conservative and resistant to change nature of occupation law, on the one hand, and progressive and dynamic economic, social and cultural rights (ESCR), on the other. The author examines the extent to which the domestic law of an occupied territory may be changed during occupation to be in line with the IHL requirements while, at the same time, fulfilling the duties in line with the IHRL obligations. A genuine necessity test is offered as the solution. The author contends that no uniform answer exists and that each case should be analysed separately, taking into account that any change in law should first be absolutely necessary and that, secondly, it should reflect the best interests of the occupied inhabitants. Examples will be drawn from the cases of Occupied Palestinian Territories and Iraq.

Selbi Durdiyeva
Selbi Durdiyeva is a Research Assistant at Nottingham Law School, UK and a Fellow of the Alliance for Historical Dialogue and Accountability at the Institute for the Study of Human Rights at Columbia University, USA.

MFN in BITs: The Deconstruction of State Consent to Dispute Settlement?

Keywords most favoured nation clauses, bilateral investment treaties, international investment law, international dispute settlement, international economic law, public international law
Authors Alberto Pecoraro
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    In international law, all tribunals, whether arbitral or judicial, are of attributed jurisdiction. The attribution of this jurisdiction is based on state consent and is limited by the terms thereof. Yet the rigours of state consent to investment dispute settlement have been eroded through the broad interpretation of most favoured nation clauses (or MFN clauses) by investment tribunals. The question addressed by the present article is whether an investment treaty’s MFN clause may be used to alter the terms of state consent to international arbitration by incorporating a more favourable dispute settlement clause contained in a third treaty. Its conclusion is that where an MFN clause merely refers to “treatment” and “all matters”, an investor cannot rely thereon in order to avoid the conditions attached by a state to its standing offer to arbitrate. In any way, MFN clauses encompass treatment accorded within a contracting party’s territory, and, by definition, international arbitration lies outside of a state’s territory and control.

Alberto Pecoraro
Alberto Pecoraro is Senior Lecturer of International Law, KAZGUU University (Astana, Kazakhstan).

Collective Bargaining Systems in Germany and Kazakhstan

Keywords collective labour relations, collective bargaining, Germany, Kazakhstan, legal regulation, employees, employers, representation, reforms
Authors Muslim Khassenov
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    This study provides a comparative overview of labour regulation in Germany and Kazakhstan with a focus on collective bargaining systems and emphasizing key differences and similarities considering the historical, economic and social background of the two countries.
    Much has been written about the German industrial relations system in English. However, Kazakhstan’s collective labour relations are basically still unknown to international scholars. There are few sources that describe the Labour Law of Kazakhstan in English, and most of them are dedicated to specific areas of labour relations.
    Evidently, the most important way to achieve a better understanding of any national legal system is a comparative legal analysis along with historical perspective, comparing to the well-known legal system with long-term traditions and presenting a classical model of labour regulation.
    This contribution also sheds light on the recent reforms in labour regulation in both countries that significantly affect the contours of modern Collective Labour Law.
    It concludes that the German collective bargaining system is decentralized with a predominant sectoral level and bilateral structure of social partnership, while Kazakhstan has a centralized collective bargaining system with a predominant national level and tripartite structure of social partnership.

Muslim Khassenov
Muslim Khassenov, PhD, is Assistant Professor, Head of the Center for Labour and Social Law in M.S. Narikbayev KAZGUU University (Nur-Sultan, Kazakhstan), visiting scholar of Goethe University of Frankfurt (Frankfurt-am-Main, Germany), alumnus of the K. Adenauer Foundation Fellowship Program.

Differences in Application of Proportionality Test by the Russian Constitutional Court and European Court of Human Rights in the Konstantin Markin Case

Keywords Konstantin Markin case, proportionality test, gender discrimination, parental leave rights, limiting human rights, judicial reasoning standards, Russian constitutional court
Authors Nazim Ziyadov
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    The first critical case that created serious tensions between the European Court of Human Rights (ECtHR) and the Russian Constitutional Court was Konstantin Markin v Russia, which by its nature was “non-political”. In Markin, the ECtHR openly criticized the Constitutional Court’s reasoning for the first time during this country’s interactions with the ECtHR. The main issue at stake in Markin was whether the Russian laws providing parental leave rights to mothers serving in the military were discriminatory in regard to male military fathers who did not enjoy identical rights. Both courts were required to evaluate whether the different treatment and limitations of a human right were allowed on the basis of the argument that the defence and security of the country as a public interest was at stake. The ECtHR found this practice to be discriminatory. By contrast, the Constitutional Court, in its earlier decision of 2009, had declared the application of Markin inadmissible. Accordingly, the Constitutional Court deemed the Russian legislation that was at issue to be non-discriminatory. The ECtHR selected the proportionality test for its evaluation of the limitations imposed on Markin. The Constitutional Court, in its turn, did not use any of the tests that are considered to be possible alternatives to the proportionality test. It started to apply the proportionality test, which is widely used in constitutional adjudication, but the test was not fully applied. No balancing between the private interests of a minority representative and a public interest to be protected by the imposition of such a limitation was performed. The overall objective of this article is to attempt to answer the two following research questions: were the starting grounds used for legal analysis applied with respect to the Markin case by the two courts comparable, and were the judicial reasoning techniques used by the Constitutional Court in line with the minimal standards applicable to the interpretation of human rights law?

Nazim Ziyadov
Nazim Ziyadov, PhD, is an assistant professor at the Law School of Near East University (Nicosia).

Theoretical Background and Legislative Framework for Implementation of the International Covenant on Civil and Political Rights in Kazakhstan

Keywords dualism and monism, incorporation and direct applicability of international treaties, human rights, implementation, international covenant on civil and political rights, Kazakhstan
Authors Beibit Shangirbayeva
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    This article aims to explore the theoretical background and legislative framework for the implementation of the International Covenant on Civil and Political Rights (ICCPR) in Kazakhstan. The author discusses monistic and dualistic approaches to correlations of international law with national law to clarify the policy of Kazakhstan towards international human rights treaties, in general, and the ICCPR, in particular. Kazakhstan is seen by the researcher as a country that has adopted policy that lies between monism and a moderate dualism. The amendments to the Constitution of March 2017 reflect the country’s position on the issue. In Kazakhstan, expression of consent to be a party to an international treaty usually requires parliamentary approval authorizing the president to ratify an international agreement. By analysing the national law of Kazakhstan, the author has found that the ICCPR is placed above domestic law, but below the Constitution of the State and that the provisions of the ICCPR have supremacy over national legislation, but not over the Constitution of the Republic. This article discusses the problems of incorporation into and applicability of international treaties in domestic law. The researcher doubts that all ICCPR provisions are directly applicable at the domestic level and that this impedes the viability of the instrument. The article raises questions of interpretation of the ICCPR provisions in Kazakhstan and the impact of the ICCPR on the Kazakh judiciary. Studying all these issues is helpful in explaining the legal conditions for implementation of the ICCPR in Kazakhstan as the instrument that will ultimately have an impact on people’s lives. In the case of Kazakhstan, one may observe that implementation of the ICCPR provisions transforms per se the domestic law of Kazakhstan.

Beibit Shangirbayeva
Beibit Shangirbayeva, PhD in Politics, Candidate’s degree in Jurisprudence, Associate Professor of L.N. Gumiloyv Eurasian National University, 2 Satpayev str., Nur-Sultan 010008, Kazakhstan.

The Eurasian Integration Process: Whether Political Will Is Enough to Keep the Eurasian Economic Union Alive

Keywords Eurasian economic union, international organization, economic integration, sanctions wars, Russia
Authors Ekaterina Antsygina and John Quigley
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    While the world is concerned about the consequences of the Brexit and the future of the European Union, an international organization with similar goals is struggling to overcome external and internal problems. The Eurasian Economic Union of Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia aims to shore up the economies of its member states and improve the lives of their populations. However, it faces external sanctions, low prices on hydrocarbons, political crises of its members, and devaluation of the member states’ national currencies in relation to the US dollar. The authors assess the Eurasian Economic Union’s prospects.

Ekaterina Antsygina
Ekaterina Antsygina, PhD, was working as an associate professor at the Law Faculty of University Catolica of Colombia.

John Quigley
John Quigley, A.B., M.A., LL.B. Harvard University, is Professor Emeritus, Moritz College of Law, The Ohio State University, USA.

Regional Labour Mobility Within the Eurasian Economic Union

Towards Regularising Irregular Migration in Central Asia?

Keywords common labour market, regional labour mobility, irregular migration, regularisation of migration, Eurasian Economic Union, EAEU migration law
Authors Khalida Azhigulova
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    The year 2015 marked the creation of a new integration entity in the post-Soviet space – the Eurasian Economic Union (EAEU) based on the principles of free movement of goods, services, capital and labour. Among the claimed benefits of the EAEU is the facilitation of labour migration within the region, improved legal status and social protection of migrant workers within the bloc and regularisation of migration. On the other hand, there has been little research on whether the regional agreements of the EAEU and the national legislation and practices of member states may instead lead to irregularity of the status of the regional citizens.
    Drawing on the analysis of the EAEU migration law, this article explores the conditions for regional labour mobility within the EAEU and assesses the extent to which the Union’s legal framework and its member states’ administrative practices have been efficient in addressing irregular labour migration and protecting labour migrants’ rights within and outside the EAEU. The article concludes that both the nationals of the EAEU member states and those of third countries may be at risk of falling into irregularity. The article also explores the existing tensions between the Union’s member states on labour migration regulation and concludes that given the strategic importance of labour migration in building economies of the sending member states of the Union, failure to create an effective common labour market poses a serious risk to the very existence of this integration entity.

Khalida Azhigulova
Khalida Azhigulova, PhD In Law (University of Leicester) MJur (Oxon) FHEA.

Legal Instruments of the Shanghai Cooperation Organisation: A Case of Missed Opportunities?

Keywords SCO, international law, economic cooperation, international legislation
Authors Evhen Tsybulenko and Anastassiya Platonova
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    Since its creation in 2001, the Shanghai Cooperation Organisation (SCO) has not produced legal instruments that could have a significant impact on the legal environment in the region, although its organisational goals call for such action. This chapter will explore the following hypothesis: the SCO is in a good position to propose treaties that will benefit the development of Asian region and strengthen ties between states, and doing so would satisfy its organisational goals. First, it will be established whether the SCO indeed has enough influence over its member states and provides, or is capable of providing, tools for international law making. Thereafter, common needs of the region will be highlighted, and those needs will be matched against the SCO’s goals, in order to establish which needs the SCO should address, such as drug trafficking and weapon trafficking, energy partnership, information exchange related to the threat of terrorism, a rational regime for using natural resources and a support system in case of natural disasters. Selected issues will be examined separately, and components to be addressed by hypothetical legislation will be identified. The chapter will conclude by answering or reiterating why the SCO, as an international organisation, is not yet as effective as it could be.

Evhen Tsybulenko
Evhen Tsybulenko is Professor at Kyiv International University and Senior Lecturer at TalTech Law School, TalTech, Akadeemia tee 3, Tallinn 12618, Estonia.

Anastassiya Platonova
Anastassiya Platonova is Chief AML & Sanctions Processing Specialistlist at Nordea Bank Abp, Estonian Branch, Lõõtsa 1A, Tallinn 11415, Estonia.

Central Asian States’ Compliance with International Refugee and Human Rights Law

The Case of Chinese Uyghur Asylum Seekers

Keywords Chinese Uyghur asylum seekers, refugees, Central Asia, Shanghai Cooperation Organisation
Authors Khalida Azhigulova
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    Both China and Central Asian states are parties to the major international human rights instruments that demand protection of the human rights of ethnic and religious minorities as well as protection of refugees from persecution based on their ethnicity and religious and political views. This chapter explores how Central Asian states have been balancing their international human rights obligations towards Chinese Uyghur asylum seekers and their regional obligations under the Shanghai Cooperation Organisation (SCO) to fight against terrorism, extremism and separatism. The author finds that Central Asian states have continuously treated Chinese asylum seekers as a political matter and have given preference to their regional commitments towards China over their international human rights obligations, which has resulted in the absence of any real protection for Chinese asylum seekers in the region. This chapter argues that while Central Asian states may see compliance with human rights obligations to be politically inconvenient, only due compliance with international refugee and human rights law in good faith will benefit these states in the long run. In particular, a strictly legal approach to Chinese asylum seekers will help Central Asian states assert their sovereign equality and independence within the SCO and balance out China’s growing influence on their domestic policy.

Khalida Azhigulova
Khalida Azhigulova, PhD in Law (University of Leicester) MJur (Oxon) FHEA.

    A good encyclopedic dictionary aims at offering a complete description of the topic, with a choice of entries arranged alphabetically and selected to convey a range of knowledge. The “Dictionnaire encyclopédique” under this review deals with international criminal justice and lays out fundamental elements of the modern system of international criminal justice as well as the underlying theory and present practice. The review explains the coverage, purposes, language aspects, and substantive elements of the entries in the dictionary citing several selected examples out of those entries. It also points out some of the missing elements in the dictionary’s content which, if included, could have only benefited the already very well written and edited volume. The main conclusion of the review is that the “Dictionnaire encyclopédique de la justice pénale internationale” represents a comprehensive, easy-to-navigate and mostly up-to-date collection of 250 brief encyclopedic articles which is strongly recommended as a reference tool for legal specialists, jurists, and students.

Rustam B. Atadjanov
Rustam B. Atadjanov, LLB, LLM, Dr.iur., PhD, is currently an Assistant Professor of Public and International Law at KIMEP University School of Law, Almaty, Kazakhstan.

Tymur Korotkyi
Tymur Korotkyi, PhD, is a Professor in the Department of International Law and International Relations, National University “Odesa Law Academy”, coordinator of the Southern centre of the Ukrainian Association of International Law (