Defence: Kyrgyz Republic

Senator Chris Evans asked the Minister for Defence, upon notice, on 2 April 2002:

1. Are there any legally-binding arrangements in place to protect Australian Defence Force (ADF) personnel and assets in the Kyrgyz Republic until the time of entry into force of the treaty, 'Agreement between the Government of Australia and the Government of the Kyrgyz Republic concerning the Status of Australian Forces in the Kyrgyz Republic, done at Bishkek on 14 February 2002' (the Agreement), tabled on 12 March 2002.
2. If there is any such legally-binding arrangement: (a) what is its source (eg. Act of the Kyrgyz Republic); and (b) what protections does it provide to ADF troops.
3. What is the current legal and administrative status of ADF troops in the Kyrgyz Republic, from the point of view of both the Australian Government and the Kyrgyz Government.
4. Clause 7 of the Agreement notes that, 'The Krygyz Republic advised that it required a SOFA [Status of Forces Agreement] of treaty status as a precondition to the deployment of ADF personnel in its territory': Given that the Agreement does not have treaty status until it enters into force, what is the Kyrgyz Republic's current position on this clause, in particular, has it recanted on its original advice to the Australian Government that it requires a SOFA before deployment of ADF troops.
5. If an offence is allegedly committed against an ADF person or the property of an ADF person in the Kyrgyz Republic, or if someone from the ADF allegedly commits an offence in the Kyrgyz Republic, what laws are applicable and which country's authorities will investigate the allegation (prior to the entry into force of this Agreement).
6. Clause 4 of the Agreement states that, "The earliest possible date for entry into force is 25 June 2002": (a) What is the latest possible date for entry into force; and (b) upon what event or whose decision does the entry into force of the Agreement depend.

Senator Hill - The answer to the honourable senator's question is as follows:

1. The provisions of the 'Agreement between the Government of Australia and the Government of the Kyrgyz Republic, done at Bishkek on 14 February 2002' (the 'Agreement') protecting Australian Defence Force personnel and assets, currently operate as morally and politically binding arrangements between Australia and the Kyrgyz Republic. These provisions are not legally binding under international law and will only become legally binding upon the 'Agreement's' entry into force as a treaty.
   
   Nevertheless, pursuant to Article 18 of the Vienna Convention on the Law of Treaties of 23 May 1969 which is binding on both Australia and the Kyrgyz Republic, the parties are obliged to refrain from acts that would defeat the object and purpose of the 'Agreement' prior to the 'Agreement's' entry into force.
   
   Furthermore, Article 25 of the Vienna Convention on the Law of Treaties of 23 May 1969 provides for the provisional application of the 'Agreement' pending its entry force because the 'Agreement' itself so provides. The 'Agreement' states that it will be implemented temporarily after a note from the Kyrgyz Republic is received by the Embassy of Australia. This has occurred.
2. See (1) above.
3. The status of Australian personnel under the criminal law of the Kyrgyz Republic in view of both the Australian Government and the Kyrgyz Government is as follows:
   
   Australia has exclusive criminal jurisdiction over Australian personnel in the Kyrgyz Republic pursuant to the 'Agreement'. Therefore, criminal offences committed or allegedly committed by Australian personnel in the Kyrgyz Republic will be dealt with by Australian authorities pursuant to Australian law. Further, the 'Agreement' confirms that Australian personnel will not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Australian Government.
   
   The status of Australian personnel under the civil and administrative law of the Kyrgyz Republic in the course of performing their official duties in view of both the Australian Government and the Kyrgyz Government is as follows:
   
   The 'Agreement' states that Australian personnel in the Kyrgyz Republic have been accorded 'a status equivalent to that accorded to the administrative and technical staff of the Embassy of Australia under the Vienna Convention on Diplomatic Relations of April 18 1961'. This means that Australian personnel in the Kyrgyz Republic will enjoy privileges and immunities as if they were administrative and technical staff of the Embassy of Australia. Accordingly, Australian personnel will enjoy immunity from the civil and administrative jurisdiction of the Kyrgyz Republic for acts or omissions in the course of the person's official duties except in the following cases:
   1. A real action relating to private immovable property situated in the territory of the Kyrgyz Republic, unless the person holds it on behalf of Australia for the purposes of the mission.
   2. An action relating to succession in which the person is involved as executor, administrator, heir or legatee as a private person and not on behalf of Australia.
   3. An action relating to any professional or commercial activity exercised by the person in the Kyrgyz Republic outside the person's official business.
   
   
   Pursuant to the 'Agreement', Australian personnel also enjoy other privileges and immunities while in the Kyrgyz Republic such as: the inviolability of their person, the person's private residence and the person's papers and correspondence; exemptions from local social security provisions; exemption from all dues and taxes, personal or real, national, regional or municipal; exemption from all personal services; and exemption from all public services and from military obligations (see article 37(2), and articles 29-36, Vienna Convention on Diplomatic Relations of April 18 1961).
4. (The statement that 'The Krygyz Republic advised that it required a SOFA [Status of Forces Agreement] of treaty status as a precondition to the deployment of ADF personnel in its territory' is not included in Clause 7 of the 'Agreement', but rather in Clause 7 of the National Interest Analysis (the 'NIA'). Pursuant to Australia's treaty processing procedures, the department with primary carriage of the treaty is responsible for preparing a NIA for tabling in Parliament at the same time as the treaty outlining the foreseeable effects that the treaty will have on Australia, the consultation that has occurred in relation to the treaty and the direct financial costs to Australia, how the treaty will be implemented domestically and so on.)
   
   No. The Krygyz Republic has not recanted on its original position that it requires a SOFA of treaty status as a precondition to the deployment of ADF personnel in its territory.
   
   The Krygyz Government recognises (as does the Australian Government) the usual international practice that a treaty enters into force once both parties fulfil their respective internal treaty procedures pursuant to their respective domestic laws and procedures.
   
   Pursuant to Article 18 of the Vienna Convention on the Law of Treaties of 23 May 1969 which is binding on both Australia and the Kyrgyz Republic, the parties are obliged to refrain from acts that would defeat the object and purpose of the 'Agreement' prior to the 'Agreement's' entry into force.
   
   Article 25 of the Vienna Convention on the Law of Treaties of 23 May 1969 provides for the provisional application of the 'Agreement' pending its entry force because the 'Agreement' itself so provides. The 'Agreement' states that it will be implemented temporarily after a note from the Kyrgyz Republic is received by the Embassy of Australia. This has occurred.
5. The Kyrgyz Republic has exclusive criminal jurisdiction over Kyrgyz nationals. Therefore, where an offence is allegedly committed against an ADF person or the property of an ADF person in the Kyrgyz Republic, the Kyrgyz Republic will investigate the allegation and will deal with the alleged offence in accordance with Kyrgyz law.
   
   Australia has exclusive criminal jurisdiction over Australian personnel in the Kyrgyz Republic. Therefore, if an offence is allegedly committed by an ADF person while in the Kyrgyz Republic, Australia will have jurisdiction over that person and Australian law will be applied. Australia will conduct investigations in accordance with Australian law and may seek assistance from the Kyrgyz Republic in such investigations.
6. (The statement that "The earliest possible date for entry into force is 25 June 2002" is not included in Clause 4 of the 'Agreement', but is rather included in Clause 4 of the National Interest Analysis.)
   1. The latest possible date of entry into force is difficult to predict as it will depend on the successful completion of both the Australian and Kyrgyz domestic treaty procedures.
   2. The 'Agreement' will enter into force once both parties complete their internal treaty procedures pursuant to their respective domestic laws and procedures and notify each other of such completion. The treaty will enter into force on the date of the latter notification or as mutually agreed by the parties.
   
   Australia's domestic treaty procedures are outlined in 'Negotiation, Conclusion and Implementation of International Treaties and Arrangements', March 1999, published by the Treaties Secretariat, Department of Foreign Affairs and Trade, Canberra.

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