Home > 5.2 Content of the referendum > KYRGYZ REPUBLIC- Joint Opinion on the Draft Law "On Introduction of Amendments and Changes to the Constitution"
 
 
 
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Paragraph 42
 

In addition to removing the priority of human rights treaties, the Draft Amendments aim to delete the reference to the “direct effect” of international human rights treaties in Kyrgyzstan, currently set out in Article 6 par 3. Instead, the new Article 6 par 3 second sentence provides that “[t]he procedure and modalities of [the] application of international treaties and universally recognized principles and norms of international law shall be defined in the law”. So far, the Kyrgyz Constitution has reflected a traditionally monist approach whereby international treaties are considered part of the domestic legal order, without any need for their transposition by means of national legal instruments. The draft amendments would appear to point to a dualist approach whereby international treaties do not apply directly within the domestic legal order but need to be transformed into national law by means of a statute or other source of national law. At the same time, this may somewhat contradict the provision of Article 6 par 3 first sentence (which will remain unchanged), which states that international treaties and universally recognized principles and norms of international law “shall be the constituent part of the legal system of the Kyrgyz Republic”. In this context, it is worth noting that in a number of constitutions, it is common practice to declare that ratified international treaties constitute part of the national legal order. However, to avoid any ambiguity, it is generally advisable to explicitly stipulate that international treaties shall prevail over domestic non-constitutional law, as well as to clarify their hierarchical relationship with the Constitution. In light of the above, the drafters should, therefore, reconsider deleting Article 6 par 3, second sentence, pertaining to the priority of international human rights treaties over other international treaties and their direct effect.