Implementation of international standards of social and labor human rights into the domestic legislation of the Republic of Kazakhstan: problems of theory and practice


Khamzin Amangeldy, Buribayev Yermek, Khamzina Zhanna

IMPLEMENTATION OF INTERNATIONAL STANDARDS OF SOCIAL AND LABOR HUMAN RIGHTS INTO THE DOMESTIC LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN: PROBLEMS OF THEORY AND PRACTICE
Monograph






Moscow
BIBLIO-GLOBUS


2019

УДК 349.2
ББК 67.405
Х18


     The monograph is recommended for publication by the Academic Councils of the Abai Kazakh National Pedagogical University and the Innovative University of Eurasia.


Reviewers:

     Omonulla Mukhamedzhanov - Doctor of Juridical Sciences, Professor, Tashkent State Law University.
     Aygul Bizhanova - Doctor of Juridical Sciences, Professor, Abai Kazakh National Pedagogical University.


     Khamzin А.
Х18 Implementation of international standards of social and labor human rights into the domestic legislation of the Republic of Kazakhstan: problems of theory and practice: monograph / A. Khamzin, Ye. Buribayev, Zh. Khamzina. - Moscow: BIBLIO-GLOBUS, 2019. - 188 p.



ISBN: 978-5-907063-49-5 doi: 10.18334/9785907063495





ISBN: 978-5-907063-49-5

              © Khamzin A., Buribayev Ye., Khamzina Zh., 2019
                                        © Design, cover design, BIBLIOGLOBUS, 2019

            CONTENTS



Notations and abbreviations ......................................... 6
Introduction ........................................................ 7
Results............................................................. 17
Chapter 1.   The concept and consolidation of international standards in the field of social and labor human rights ....................... 23
1.1. Content and essence of international standards of social
and labor human rights.............................................. 23
1.2. The international legal nature of the institutional system of ensuring social and labor rights ................................ 35
1.3. Problems of correlation of international acts and legislation
of Kazakhstan........................................................ 40
Chapter 2.   International legal mechanisms of ensuring social and labor human rights ..............................................53
2.1. Universal tools and mechanisms of protection of social
and labor human rights............................................... 53
2.2. Regional mechanisms and standards of ensuring social and labor human rights............................................... 65
2.3. Problems of the formation and effectiveness of international legal norms of the EAEU states ..................................... 76
2.4. Coordination of international obligations of Kazakhstan in the social and labor sphere and domestic law .................... 88

Chapter 3.   The role and importance of international standards in the regulation of labor and social relations .................... 98
3.1. International legal standards in the field of labor
and their reflection in the legislation of Kazakhstan .............. 98
3.2. International legal standards of regulation of human rights
in the field of social protection and their implementation
in the legislation of the Republic of Kazakhstan................... 116
3.3. Forms and mechanisms of the development of regional
cooperation of the EAEU countries in the field of social security . 127
3.4. Opportunities to transform the international standards
of social rights of the family and child into the domestic legislation
of the Republic of Kazakhstan ..................................... 141
Conclusion ........................................................ 161
References ........................................................ 169

      Abstract. This study is devoted to a comprehensive analysis of the system of international legal foundations for ensuring social and labor human rights in Kazakhstan at the present stage. The work consistently examines the concept and forms of consolidation of international standards of social and labor human rights; the international legal nature of the institutional system of ensuring individual rights is determined; the features of the relationship of international acts and legislation are revealed; universal and regional mechanisms for the protection of social and labor human rights are established; international legal standards in the field of labor and social protection are examined, their reflection in the legal system are revealed; the problems of adoption by Kazakhstan in accordance with the constitutional procedures of legislative, organizational, financial and economic measures in order to consolidate, ensure and protect the generally accepted social and labor rights and freedoms of the person are identified. As a result of a comprehensive analysis, the authors substantiated the need to enhance regional cooperation in the field of joint social development of the EAEU countries using the proposed forms and mechanisms of integration. Considering the provisions and the level of international norms and standards, conclusions and proposals for improving the legal and organizational infrastructure for ensuring social and labor human rights are presented, aimed at enhancing the process of building a legal and social state in Kazakhstan.

      Keywords: Kazakhstan, EAEU, international standards, social and labor rights, employment, social protection, human rights.

            NOTATIONS AND ABBREVIATIONS



GPW - Great Patriotic War
SSIF - State Social Insurance Fund

EAEU, Union - Eurasian Economic Union
EU - European Union
Constitution of the RK, the Constitution - Constitution of the Republic of Kazakhstan, adopted on August 30, 1995
CC RK - Constitutional Council of the Republic of Kazakhstan
MFA - Ministry of Foreign Affairs of the Republic of Kazakhstan
IOM - International Organization for Migration
ILO - International Labor Organization
MCI - monthly calculation indicator
MLSPP - Ministry of Labor and Social Protection of Population of the Republic of Kazakhstan
MJ - Ministry of Justice of the Republic of Kazakhstan
UN - United Nations

Republic of Kazakhstan, the republic - Republic of Kazakhstan

RF - Russian Federation

LC of RK, LC - Labor Code of the Republic of Kazakhstan dated
November 23, 2015 No. 414-V

            INTRODUCTION



     The relevance is due to the interests of the state and society in the qualitative consolidation and regulation of social and labor human rights in the modern legal system and social relations. The timeliness of the research is due to the theoretical lack of development of the system of international legal foundations for ensuring social and labor human rights in Kazakhstan, the relevance of the practice of forming and developing social and labor legislation as the fundamental basis of generally accepted norms and standards in this field.
     In recent years, the field of social and labor legislation of Kazakhstan has undergone fundamental changes, the system of relevant regulatory legal acts has become more qualitative and effective due to codification and unification, the implementation of organizational reform to ensure guaranteed social protection measures for the population. At the same time, despite a significant improvement in the quality of ensuring of social and labor rights of a person, Kazakhstan’s legislation in this area does not sufficiently meet generally accepted standards, international obligations undertaken by the republic are not fully implemented. In addition, scientific interest in the topic of this study is due to the fact that legal support of social and labor human rights is carried out not only by domestic law, but also international, as a rule, more progressive, consolidating recognized standards and norms of realization of human rights in the social and labor sphere. However, the specifics of this area of public relations does not allow in most cases the direct impact of international rules in the realization of social or labor rights, implementation measures are needed to consolidate and introduce generally accepted standards in national legislation. This determines the complexity of the mechanism of execution by Kazakhstan of its international obligations to ensure social and labor human rights.


7

      Traditionally, social rights include the right to work in just and favorable conditions, including the right to such means of labor protection as the creation of workers' organizations, collective means of struggle for the interests of workers; The right to social security, formulated as the right to a minimum of living conditions, and as the right to participate in social insurance systems, and as the right to physical and moral health; the right to education and using the achievements of culture.
      However, the rights that make up the above list have specific features, which consist in different subject composition, the grounds of origin, termination, and sources of financial support. For the purposes of this study, we have allocated social rights into a separate group, that is, the rights to social protection, provision, service, assistance and labor rights of a person, that is, the right to freedom of labor and other labor-related legal powers: the right to free choice of occupation and profession, the right to working conditions that meet safety and hygiene requirements, the right to individual and collective labor disputes using the methods of their resolution established by law, including the right to strike, the right to remuneration for work without any discrimination, the right to rest, the right to social protection against unemployment, and some others. The combination of social and labor rights in scientific analysis is designated as social and labor human rights.
      It should be noted that the international legal foundations of wage labor and social protection of the population were the objects of scientific research in legal science. So, in the thesis of E.M. Ametistov notes: “International labor regulation is one of the oldest and most developed areas in the international protection of human rights. For many years of existence of this area, within its framework, a large number of international labor standards were established and an extensive system of multilateral and bilateral treaty obligations of states was established for the intra-legal

8

implementation of these norms, and a great practical experience of such implementation was accumulated ” (Ametistov, 1983, p. 13). At the same time, in Kazakhstan there were no comprehensive scientific studies of the problems of the international legal foundations of ensuring social and labor human rights. The statement of the problem in the proposed perspective of the scientific analysis of human rights in the social and labor sphere in Kazakhstan from the point of view of their provision through mechanisms of an international character is new and has not previously had a place in the domestic legal science.
      The structure of the work determined the choice of several strategic lines of scientific work: on the one hand, the concept, mechanisms of securing and ensuring international standards for ensuring social and labor human rights are explored, and on the other, the issues of the qualitative implementation of internationally accepted standards in the field of labor and social protection of the population in domestic law Republic of Kazakhstan with the aim of solving the problems of improving the effectiveness of legal support of social and labor relations. This approach is determined by the factors that “human rights cannot only be a national problem, because all the major world events impose their own imprint on it regardless of territorial or ideological barriers. Therefore, it is logical to conclude that human rights should be regarded by the world community as the most important global problem (Rakhmankulov, Rakhmanov, 1998, pp. 99-100).
      The problem of guarantees of ensuring social and labor human rights is constitutional in nature, and also has international decision mechanisms. The Constitution establishes the basis for mechanisms of ensuring these rights, establishes their fundamental list, which finds its details in the current legislation. The norms of international legal agreements do not regulate observance of rights in national states, but, being fixed in constitutional

9

provisions, create the vector of such compliance. Human rights are eventually secured by constitutional guarantees. In this connection, it should be emphasized that the Constitution establishes the status of international legal acts in respect of which the republic has expressed consent as an effective law in Kazakhstan, which allowed us to address the little-studied problem, which is complex, to study the content and balance of guarantees of social and labor rights in international law and legislation of the Republic of Kazakhstan.
      Thus, the formation of a modern scientific concept of the significance and role of the international legal foundations for ensuring social and labor human rights is an urgent legal problem, the solution of which contributes to the formation in Kazakhstan of a legal and social state, the formation of national legislation and the social and labor sphere corresponding to generally accepted international standards.
      Literature review. Despite the fact that the problems of ensuring and content of human rights and freedoms, as well as issues of establishing the correlation of international and national law, the implementation of generally accepted standards in the domestic legal system are some of the “popular” areas of theoretical research in constitutional law, comparative law science, international law, in the field of scientific research of international legal orientation there was not a single monograph specifically devoted to the international legal support of social labor rights, which seems to be a significant gap in this area of scientific research.
      The problem of international legal regulation of social and labor human rights, despite its obvious relevance, has received little attention in legal science. Only its individual elements were subjected to a detailed analysis, often without reference to the concept itself. At the same time, the relevance of the study of the problems of ensuring social and labor human rights in conjunction with the construction of a social and legal state was

10

emphasized by many scientists, in particular, K.K. Aitkhozhin summarizes: “Assessment of the trends in the constitutional development of the Republic of Kazakhstan, first of all, should be related to how practiced forms and methods of constitutional and legal regulation contribute to the implementation of the principle of social justice, a real improvement in the legal and actual status of a person and the dynamics of society moving towards a democratic one, legal and social state.
      Therefore, the semantic center of Kazakhstan's constitutionalism, its basic evaluation categories should increasingly shift from studying state-legal institutions and phenomena to the study of universal values embedded in the norms of the Basic Law, issues of improving the social and legal status of a person as the highest value of the state, realization of his rights and freedoms in close connection with the practical implementation of the principle of social justice in Kazakhstan. All this suggests that the problem of implementing the principle of social justice is an initial, key issue, depending on the solution of which all other legal phenomena and institutions should be understood, development prospects and ways of improving the practice of law-making and law enforcement in a country should be defined”(Aitkhozhin, 2008, pp. 149-150).
      The foregoing determined the choice of an integrated system of source study base of the present work, which includes not only multi-branch research, but also works reflecting various stages of political and civil development of the state and society, determining the formation of the system of rights under consideration.
      Various aspects of the effectiveness and implementation of international legal norms were considered in the classical works of international lawyers: Blenk-Knocke E., Bosshardt W., Frei Daniel, Vissher Ch., Coplin W.D., Markoff Marko G., Pruitt Dean, Mossner H.-J., Touscos J., Friedmann W., Fischer G.

11

     Considered by G.M. Velyaminov, N.A. Vorontsova, V.V. Gavrilov, V.I. Margiev, A.A. Moiseev, M.L. Romanov, international legal aspects of the interaction of states in ensuring human rights, the implementation of international law, the interaction of international and national legal systems have expanded the scope of scientific study of the problem.
     At the same time, despite the fact that the scientific interest in the problem of international legal provision of personal rights and freedoms is great, there is no single comprehensive view of international legal mechanisms to guarantee social and labor rights and their implementation in national law as an integrated institution. In international legal science there are a number of PhD and doctoral theses devoted to the problems of interconnection and interaction of international and national law in the field of ensuring human rights. This is a doctoral thesis of B.I. Ismailov “International standards in the field of personal rights and freedoms of a person and national legislation of the Republic of Uzbekistan (problems of interaction and implementation)”, E.M. Ametistova, B.L. Zimnenko, L.H. Mingazova, E.G. Moiseeva, V.S. Khizhnyak.
     The modern study of the problem of the international legal provision of human rights and freedoms is multidimensional, affecting various areas of science. It should be noted that the issue of forming the foundations of international mechanisms for ensuring human rights is to a greater extent the subject of international law, but there is no doubt about the significance of research into the problems of the nature and guarantees of international protection of social and labor human rights in political science, sociology, and economic sciences.
     In legal science, there are two approaches to the study of the international legal regulation of social and labor human rights. First, attention was drawn to the nature and particular importance of international standards in the field of ensuring social and labor rights as a sphere of

12