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A New Legal System:
CAUCASIAN LAW?


By Sevinj Jabrailova

After the disintegration of the USSR, three Caucasian countries became completely independent, and the integration process in this region became possible. But there are many problems that inhibit the full realization of this process, and no clear prospect for a solution. One major problem is the development of a single legal system for all three of these countries, which would create a new phenomenon in the region, Caucasian Law. Being formatted based on the consensus of Armenia, Azerbaijan and Georgia, the Caucasian Law would foster the ability to facilitate numerous collaborative processes, overcoming those many obstacles and problems, which arise in the way of integration. Such phenomenon has been known to exist since the beginning of the second half of the 20th century. The intensive rate of the integration processes in the world throughout out this time period has resulted in the constitution of new and unique entities, which were formed at the juncture of domestic and international laws.
Theoretically, the Caucasus region is an area with great prospects thanks to its geographic position and abundance of natural recourses. Consequently, one could suppose that the establishment of the Caucasian Law would be an inevitable process. However, regional conflicts such as the Nagorno-Karabakh conflict have made integration not so palatable right now. For this matter though, we only need time for the solution of the conflicts. To make it effective and tangible, that is one of the main ideas of the Caucasian Law during the transition in the Caucasus.

This integration process should be provided by the legal basis, which promotes close cooperation between states.

It seems that the term of "Caucasian Law" should be used in three senses. Firstly, the Caucasian Law is a set of the national legal systems, juridical practice and dominating legal ideology of three countries. Secondly, the Caucasian Law is a part of international rules of law used to govern and dictate the interrelations in various fields between these countries. In spite of this, after the solution of this problem, there will be need for such treaties. And third, the Caucasian Law may be created only after the creation of a regional integration union in the Caucasian region (such as European Union). The formation and development of the Caucasian Law can be divided into three stages;

The first stage of the formation of the Caucasian Law should be the approximation of national laws, regulations or administrative practices in the countries. This harmonization will draw together the legal systems of these three countries and become a key element in the establishment and functioning of a common market in the Caucasian region .Therefore, it is necessary to create a body (for example, a tripartite commission), which will consist of representatives of the legislative, executive and judicial bodies of Armenia, Azerbaijan and Georgia. This commission will adopt, acting in accordance with specified procedure referred to by the members states, measures for the approximation of the provisions laid down by law, regulations or administrative action in these states. The main aim of the Inter-parliamentary Assembly of CIS is harmonization of national legislation. Since, 1992 till 1998 it adopted 63 model laws. It prepared 33 legal acts for Kyrgyzstan, 26 for Byelorussia, 19 for Kazakhstan and 18 for Armenia.

The second stage of the formation of Caucasian Law should be the establishment of treaties between Armenia, Azerbaijan and Georgia, which should be mostly tripartite. As it was mentioned before, there are also some commercial treaties between Armenia and Georgia. The treaties concern friendship, co-operation and mutual assistance. And there are some commercial, trade, and economic treaties. The list of spheres concerned by them should be wide. First of all, there must be boundary treaties, then concerning economic and social cohesion, transport, culture, education, energy, taxation, customs issues, environment, human rights, etc.

Then, the stage of the formation and development of Caucasian Law, the Trans-Caucasian countries should conclude treaties concerning free movement of goods, persons, freedom of establishment, freedom of providing services, free movement of capital and payments, competition policy, tax provisions and approximation of laws. This will become the basis for the establishment of the common market within the Trans-Caucasian region.

The last stage is the ultimate realization of integration within Trans-Caucasus. It means the establishment of an international treaty between Armenia, Azerbaijan and Georgia, setting up the union of Trans-Caucasian countries.

The Union will be nothing more than a new stage in the process of creating an ever-closer union among the peoples of Trans-Caucasus. Indeed, it is the ultimate objective of the Caucasian integration, the precise scope of which is not determined in this essay.

The idea of the establishment of economical and political unity of the Caucasian people and the necessity of their association (in the federation of consideration form) is not something entirely novel. Such a union was created in 1922 as Trans-Caucasus Soviet Federative Socialist Republic. But 1936 this republic was established.

Nowadays, this question is not on the agenda in these states. In spite of this, the Center for European Policy Studies proposed the working Document no.145, "A Stability Pact for the Caucasus," which concerns the establishment of the South Caucasus Community. This treaty will probably create institutions independent from the national public authorities and endowed with legislative, administrative and judicial sovereign rights, which will be transferred to them by the member states, (Armenia, Azerbaijan and Georgia). Furthermore, this treaty will lay down basic principles, either worked out in the treaty itself or implemented by the acts of institutions. The treaty and acts will constitute a set of rules, which without interference or intervention, impose obligations upon and consequently create rights for the member states and the natural and legal persons within the union.

This treaty will establish a specific legal order. By creating the union of Trans-Caucasian countries of unlimited duration having its own institutions, its own personality, its own legal capacity of representation on the international plane and, more particularly, real powers stemming from the limitation of sovereignty or a transfer of powers from the states to the union, the member states will limit their sovereign rights, albeit within limited fields and create a body of law, which binds both their nationals and themselves.

That is the legal nature of Caucasian Law. But what is the situation today? This region is fully sunk in ethnic conflicts: Upper-Karabakh, Abkhazian and South Ossetian. These frozen conflicts are the main obstacles for the regional integration and cooperation. That means that there is no prospective for the large-scale integration or Caucasian Law in the near future.

Nevertheless, the countries try to cooperate on a bilateral basis. For instance, the visits of Azerbaijani President to Georgia in 1996 opened new perspectives for the regional cooperation and stabilization of the situation in the South-Caucasus.

It is possible to set up the Caucasian Law only after the beginning of large-scale cooperation between all the three countries. Commenting on the recent statement released in Strasbourg by UN, OSCE and Council of Europe, according to which these organizations are keen to promote regional cooperation here. In comparison to Azerbaijan, Armenia offers to make some steps towards economic cooperation with Azerbaijan. However, it is impossible to create any kind of relations, including economical, between belligerent states, such as Armenia and Azerbaijan. The starting point for the creation of the Caucasian Law is the resolution of the Upper-Karabakh problem and Georgia is ready to create regional organizations as the base for integration and cooperation.

Human rights within the Caucasian Law
Human rights represents a vital sphere that should be affected by the Caucasian Law, this sphere must be the main issue at all stages of the formation of the Caucasian Law. In practice, the differences between international human rights and national civil rights rarely begin or end at any single nation's boundaries and effective action to protect and promote human rights, whether at home or abroad, can be furthered by through the innovation of both national and international techniques.

The most important and useful source of the international human rights law is likely to be international treaties, which clearly and directly create international obligations for the parties. This stipulation is also related to the Caucasian Law:

At the first stage, the countries of Caucasus from an develop new national human rights institutions such as a Commissioner for Human Rights (ombudsman), etc., develop a broadly acceptable theory of relationship between human rights and development, including practical programs capable of realizing and accommodating both objectives, and strengthen existing national institutions, such as the domestic commission and courts, by developing and revising their procedures and utilizing them more fully.

These countries are all the members of several international organizations. Within the framework of these organizations, the Caucasus countries have an obligation to provide the execution of a set of measures directed to democratization of all spheres of state life. It is also relevant to the democratization of all legal systems. Those countries should provide individuals with a wide list of rights and freedoms and ensure to everyone within their jurisdiction to the rights and freedoms. They should increase efforts to embed international human rights norms more firmly within national legal systems.

At the second stage, some regional treaties concerning human rights and basic freedoms in the Caucasian region should be established. Some such treaties have been already been established. These Caucasian treaties set forth a wide range of human rights and fundamental freedoms, and address numerous civil, political, economic, social and cultural rights.

At the third stage, a supervisory mechanism ought to be set up within the Union of the Caucasian Commission on Human Rights that can play a pivotal role. It could become the major body working to promote and protect human rights. The Universal Caucasian Treaty on human rights and fundamental freedoms can also establish a judicial body. It is the Court of human rights, which, as it is in Europe, shall be set up" to ensure the observance of the engagements that will be undertaken, by Armenia, Azerbaijan and Georgia in that treaty.

It is important to point out that the real subject and beneficiaries of international human rights laws are individuals. Therefore, three countries incorporate the above mentioned legislation, treaties and establishments, with obligations expressed in human rights treaties into their domestic law. The rights can be invoked directly by individuals as part of state's internal law. Then the abovementioned Universal Caucasian Treaty on human rights and fundamental freedoms should establish standing for any person, NGO or group of individuals to bring complaints directly before the Caucasian Court of Human Rights.

In summation here are suggestions and advantages in relation to the integrations of Caucasian Law, as well as precondition for Armenia, Azerbaijan and Georgia to realize its integration. First of all to solve the problem of Karabakh step by step, as the Minsk Group is going to solve it, also to make a program for the improvement these regions, because some people are afraid to go back to these places. The government must have a separate peace within these lands capable of joining landowners there. Also the increase of salaries of teachers and other workers of different field that they would be interested in going there would be advantageous. Secondly, to improve the legal systems and establishment of the Caucasian Law within Caucasian region, because there are some basic yet key benefits: like a common sphere in the fields of taxation, customs, transport, administrative, business, commercial, property law, trade, transportation of goods and passengers, international payments and credit relations, technical co-operation between three countries and also the economic cohesion. This law will determine the legal principles of the effective utilization in the economy of foreign investments into the region. But in any way we should provide and protect of the rights of foreign investors. The law will harmonize the domestic laws and tripartite treaties between these countries and bolster cooperation between them in the field political and economic relations. These fields are huge, encompassing employment, labor law and working conditions, basic and advanced vocational human rights training, social security, prevention of occupational accidents and diseases, occupational hygiene and the right of association, and bargaining between employers and workers. And thirdly, this law will strengthen the human rights protection system between those countries. The Caucasian Law will strengthen existing domestic institutions and also serve to develop new international; systems, such as Caucasian Commission on human rights and Caucasian Court of human rights dealing with human right issues within Caucasus. It will establish a list of human rights instruments, such as tripartite treaties, declaration, resolutions, and recommendations relevant to the human rights protection in the Caucasus.

 

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