CRITERIA FOR U.S. ASSISTANCE UNDER SECTION 498A(a) OF THE FOREIGN ASSISTANCE ACT OF 1961

TURKMENISTAN

Section 201 of the FREEDOM Support Act amended Section 498A of the Foreign Assistance Act of 1961 to require that the President "take into account not only relative need but also the extent to which that independent state is acting to:"

Section 498A(a)(1): "make significant progress toward, and is committed to the comprehensive implementation of, a democratic system based on principles of the rule of law, individual freedoms, and representative government determined by free and fair elections."

Turkmenistan is a one-party state dominated by President Saparmurat Niyazov who exercises power in an authoritarian style by retaining his monopoly on political power and on the Democratic Party, which remains the only legally recognized political party in the country. Niyazov has been President since independence in 1991; in 1999 his term was extended indefinitely by the People’s Council. President Niyazov has said he will step down by 2010; however the People’s Council has strongly voiced its objection to this proposal. In August 2003, Niyazov was elected to a life term as Chairman of the People's Council, giving him a substantial say in the selection of any presidential successor. Government efforts continue to focus on fostering centralized state control and the glorification of the President. The 50-member unicameral Parliament (Mejlis) has no genuinely independent authority; in August 2003, the Peoples' Council replaced it as the supreme legislative body. The President controls the judicial system.

The Government of Turkmenistan severely restricts political and civil liberties, and citizens do not have the ability to change their government. The Government completely controls the media, censors all newspapers and access to the Internet, and does not permit independent criticism of government policy. All opposition political activity is banned.

Section 498A(a)(2): "make significant progress in, and is committed to the comprehensive implementation of, economic reform based on market principles, private ownership, and integration into the world economy, including implementation of the legal and policy frameworks necessary for such reform (including protection of intellectual property and respect for contracts)."

The Government of Turkmenistan has implemented few economic reforms and many of the half-steps taken in the early years after independence have been reversed. Turkmenistan remains one of the most closed economies in the region. Access to legal foreign exchange is tightly controlled, with a large difference between the official and unofficial exchange rates. Foreign companies often experience great difficulty in obtaining hard currency to purchase inputs or repatriate earnings. The economy remains overwhelmingly under state control. The Government directs agricultural production through a system of state orders. The European Bank for Reconstruction and Development (EBRD) estimates that the private sector’s share of production facilities in the economy is just 25 percent.

Turkmenistan has laws on foreign investment, banking, property ownership and intellectual property rights, but all are poorly implemented and arbitrarily enforced, and lack of respect for contracts remains an issue. Turkmenistan introduced its own currency, the manat, in November 1993, but the currency is not freely convertible. A bilateral trade agreement with the United States entered into force in October 1993 containing intellectual property rights (IPR) provisions, and providing for reciprocal Normal Trade Relations (NTR) subject to the provisions of the Jackson-Vanik legislation. However, Turkmenistan has not adopted all the legislation necessary to bring its IPR regime up to international standards as required by that agreement and since 2000 has been on USTR's Special 301 Watch List, which identifies foreign countries that deny adequate and effective IPR protection. Turkmenistan was not included in the most recent semi-annual reports of countries determined to be in compliance with the Jackson-Vanik freedom of emigration provisions; however, in July 2004 the President granted a waiver, as he did in August 2003, to allow continued NTR treatment. An Overseas Private Investment Corporation (OPIC) agreement entered into force in June 1992. Turkmenistan is a member of the IMF, World Bank, EBRD, the Asian Development Bank, and in December 2001 received full membership in the Islamic Development Bank. Citing a lack of progress in Turkmenistan's transition towards multi-party democracy, pluralistic society and a market-based economy, since July 2002 the EBRD has limited its operations in Turkmenistan to investment in the private sector. Turkmenistan is the only country within the Commonwealth of Independent States that has not applied to join the World Trade Organization.

Section 498A(a)(3): "respect internationally recognized human rights, including the rights of minorities and the rights to freedom of religion and emigration."

The Government's human rights record remains poor. There were some improvements in a few areas; however, serious problems remain. Those suspected in the November 25, 2002 armed attack against the President's motorcade remain imprisoned. Trials have been conducted unfairly as there is no prompt or regular access to legal counsel. Their relatives continue to suffer loss of employment and housing, and face arbitrary arrest and detention. More generally, there are credible reports of torture and mistreatment of suspects and prisoners. There are numerous, systematic violations of due process under the law, including arbitrary arrest and detention. The Government denies all charges of abuse and does not provide prisoner access to family, legal counsel, the International Committee of the Red Cross (ICRC) or other international observers. The denial of medical treatment for prisoners has contributed to several reported deaths in prison. The criminal police and the MNB operate with impunity, abuse the rights of individuals, and enforce the Government's policy of repressing the political opposition, often through the use of unfair trials. The Government holds at least one political prisoner.

In 2004 the Government revoked segments of a restrictive law on religion and allowed four more minority groups to register, but continued to exercise control over religious expression. Adherents of unregistered religions are subject to harassment, including arrests, detentions, abuse, and administrative fines.

In January 2004, the Government repealed the restrictive exit visa regime that was reinstated in early 2003. Freedom of movement has improved but the Government maintains a blacklist of individuals not permitted to travel abroad. No domestic human rights advocacy groups exist. The Government generally gives favored treatment to ethnic Turkmen over minorities. The Government also restricts labor rights by not permitting strikes or free association of employees.

The Government restricts movement within Turkmenistan by limiting travel to border cities and regions, having declared these parts of the country "restricted zones." As part of a comprehensive redevelopment plan for Ashgabat and other cities, the Government has forcibly displaced residents from several neighborhoods with less than a week’s advance notice and minimal, if any, compensation for their destroyed property. There are also credible reports of the forcible resettlement and expulsion of ethnic Uzbeks from Turkmenistan.

Section 498A(a)(4): "respect international law and obligations and adhere to the Helsinki Final Act of the Conference on Security and Cooperation in Europe and the Charter of Paris, including the obligations to refrain from the threat or use of force and to settle disputes peacefully."

The Government of Turkmenistan has a proclaimed policy of neutrality towards other nations and has done nothing inconsistent with its OSCE obligations to refrain from the threat of the use of force and to settle disputes peacefully. Turkmenistan is at peace with its neighbors. The Turkmen military does not currently present an offensive threat to the region or to any of its neighbors. Turkmenistan has submitted many of the Confidence and Security-Building Measures (CSBM) annual data declarations for 1995-2001, although sometimes late. Since 2001 Turkmenistan has fulfilled its commitments to undergo CSBM inspections and evaluation visits in accordance with the Vienna Document 1999.

Section 498A(a)(5): "cooperate in seeking peaceful resolution of ethnic and regional conflicts."

Turkmenistan supported regional and international efforts to resolve peacefully the conflicts in Tajikistan and Afghanistan and has played an important role as a conduit for humanitarian assistance to Afghanistan. In November 2004, Presidents Niyazov and Karimov met in Bukhara, Uzbekistan for the first time since President Niyazov accused Uzbekistan of supporting the armed attack on him in November 2002. At the summit, the two leaders exchanged views on joint cooperation in ensuring security and stability in Central Asia and in fighting international terrorism. They also signed agreements on water, border issues and friendship.

Section 498A(a)(6): "implement responsible security policies, including--

(A) adhering to arms control obligations derived from agreements signed by the former Soviet Union;

(B) reducing military forces and expenditures to a level consistent with legitimate defense requirements;

(C) not proliferating nuclear, biological, or chemical weapons, their delivery systems, or related technologies; and

(D) restraining conventional weapons transfers."

The Government of Turkmenistan has formally declared its willingness and intent to accept all of the relevant arms control obligations of the former Soviet Union. Turkmenistan acceded to the Non-Proliferation Treaty (NPT), as a non-nuclear weapon state, on September 29, 1994. Turkmenistan has not yet signed an NPT safeguards agreement with the International Atomic Energy Agency. Turkmen armed forces are guided by a defensive military doctrine. We are not aware that the Government of Turkmenistan has engaged in the proliferation of nuclear, biological, or chemical weapons, their delivery systems, or related technologies. Turkmenistan is a State Party to the 1993 Chemical Weapons Convention and to the 1972 Biological Weapons Convention (BWC). It has not provided any voluntary annual BWC-related CBM Data Declarations since it became a State Party to that Convention, however. The State Department is implementing an export control and related border security assistance program (EXBS) with Turkmenistan, a program designed to increase Turkmen capability to deter, detect and interdict WMD and sensitive commodities of proliferation concern. Turkmenistan subscribed to the Hague Code of Conduct Against Ballistic Missile Proliferation (HCOC) in June 2003. Turkmenistan is committed to a moratorium on nuclear testing. To our knowledge, Turkmenistan has not engaged in any significant level of conventional arms transfers. Additionally, Turkmenistan has acknowledged it is a successor to the former Soviet Union’s obligations under the Intermediate and Shorter Range Nuclear Forces (INF) Treaty. Although it does not actively participate in the Special Verification Commission, it continues to observe the Treaty’s obligations.

Section 498A(a)(7): "take constructive actions to protect the international environment, prevent significant transborder pollution, and promote sustainable use of natural resources."

Although Turkmenistan has one of the best developed systems of nature preserves in Central Asia, its Karakum Canal -- badly deteriorated since independence -- contributes to the region's most serious environmental problems, notably in the Aral Sea, by aggravating existing water pollution, pesticide run-off and water-table problems (mostly resulting from excessive and irrational reliance on cotton cultivation). International environmental experts have noted these problems may be further exacerbated by President Niyazov’s plan to construct a vast lake in the middle of the desert.

Turkmenistan continues to engage in talks with Russia, Azerbaijan, Kazakhstan and Iran on environmental protection of the Caspian Sea. These marine environmental protection talks include discussion of development of the mineral resources of the Caspian seabed and use of the sturgeon population in a way that protects the Caspian ecosystem.

Section 498A(a)(8): "deny support for acts of international terrorism."

The Government of Turkmenistan does not grant sanctuary from prosecution to individuals or groups that have committed acts of international terrorism or otherwise support international terrorism. Turkmenistan is a party to nine of the twelve international counter-terrorism conventions. Turkmenistan committed itself to the international coalition against terrorism shortly after September 11 and has cooperated on many initiatives.

Section 498A(a)(9): "accept responsibility for paying an equitable portion of the indebtedness to United States firms incurred by the former Soviet Union."

In October 1991, shortly before the Soviet Union dissolved, Russia and eleven other Soviet republics, including Turkmenistan, signed a Memorandum of Understanding declaring themselves jointly and severally liable for the foreign debts of the former Soviet Union (FSU). In December 1991, Russia and seven other republics signed an agreement that assigned to each of the Newly Independent States a share of all the external assets and foreign debt of the FSU. Turkmenistan did not sign the December 1991 agreement.

In 1992, Russia sought to replace the joint and several liability principles by seeking full liability for the debt of the FSU in return for all the external assets of the FSU. In July 1992, the Government of Turkmenistan signed a "zero option" agreement with Russia under which Russia agreed to assume Turkmenistan's share of the foreign debt of the FSU in return for Turkmenistan's share of the FSU's external assets.

Please see section 498A(a)(9) of the Russia assessment regarding indebtedness to the United States incurred by the former Soviet Union.

Section 498A(a)(10): "cooperate with the United States Government in uncovering all evidence regarding Americans listed as prisoners-of-war, or otherwise missing during American operations, who were detained in the former Soviet Union during the Cold War."

The U.S. effort to uncover evidence of American POWs and MIAs in the former Soviet Union is being conducted through the U.S.-Russian Joint Commission on POWs/MIAs that was established in March 1992. In November 1995 the Commission visited Turkmenistan, where it was warmly received by, and received full cooperation from, the Government of Turkmenistan.

Section 498A(a)(11): "terminate support for the communist regime in Cuba, including removal of troops, closing of military and intelligence facilities, including the military and intelligence facilities at Lourdes and Cienfuegos, and ceasing trade subsidies and economic, nuclear, and other assistance."

We have no evidence that the Government of Turkmenistan is providing military, intelligence, economic, nuclear, or other assistance to the Government of Cuba.

CHECKLIST FOR GROUNDS OF INELIGIBILITY UNDER SECTION 498A(b) OF THE FOREIGN ASSISTANCE ACT OF 1961

TURKMENISTAN

Section 498A(b)(1): Has the President determined that the Government of Turkmenistan has "engaged in a consistent pattern of gross violations of internationally recognized human rights or of international law"?

No. The President has not made such a determination at this time. However, the U.S. Government is deeply concerned about the broad and serious violations of human rights discussed above, particularly allegations of abuse of political prisoners and restrictions on freedom of religion. The U.S. Government continues to make the protection of human rights a central and consistent element of its dialogue with the Government of Turkmenistan.

Section 498A(b)(2): Has the President determined that the Government of Turkmenistan "has failed to take constructive actions to facilitate the effective implementation of applicable arms control obligations derived from agreements signed by the former Soviet Union"?

No. The President has not made such a determination at this time.

Section 498A(b)(3): Has the President determined that, after October 24, 1992, the Government of Turkmenistan "knowingly transferred to another country --

(A) missiles or missile technology inconsistent with the guidelines and parameters of the Missile Technology Control Regime; or

(B) any material, equipment, or technology that would contribute significantly to the ability of such country to manufacture any weapon of mass destruction (including nuclear, chemical, and biological weapons) if the President determine[d] that the material, equipment, or technology was to be used by such country in the manufacture of such weapon"?

No. The President has not made such a determination at this time.

Section 498A(b)(4): Is the Government of Turkmenistan "prohibited from receiving such assistance by section 101 or 102 of the Arms Export Control Act or sections 306(a)(1) and 307 of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991"?

No. We do not have information from which to conclude that the Government of Turkmenistan is prohibited from receiving assistance under these statutes.

Section 498A(b)(5): Has the President determined and certified within 30 days to the appropriate congressional committees that the Government of Turkmenistan "is providing assistance for, or engaging in non-market-based trade (as defined in section 498B(k)(3)) with the Cuban Government? If so, has the President taken action to withhold assistance from Turkmenistan under the Foreign Assistance Act within 30 days of such a determination, or has Congress enacted legislation disapproving the determination within that 30-day period?"

No. The President has not determined that the Government of Turkmenistan is providing assistance for, or engaging in any non-market-based trade with, the Cuban Government.