Status of International Norms in the Domestic Legal System of Azerbaijan

Azerbaycan’ın İç Hukuk Sisteminde Uluslararası Normların Durumu

Ravan SAMADOV

This article analysing the status of international norms in the domestic legal system of the Republic of Azerbaijan, tries to reveal the legal force of those norms, as well as the state of implementation thereof.

It is argued that the ratified international treaties are an integral part of the national legislative system, and have a superior legal force than any other act in that system. Furthermore, the ratified human rights treaties hold an even higher position, as they have, at least, an equal legal force with the Constitution of the country. Therefore, logically the ratified treaties should be applied in situations where the domestic legislation is not (properly) regulating this or another issue. However, the real situation is not so straightforward in the national practice. Thus, although the direct applicability of those documents is legally declared, in reality, they are treated as non-self-executing norms, which can only be applied through domestic legal tools. This undoubtedly necessities bringing the domestic legal acts into conformity with the ratified treaties, so that those treaties are fully implemented in practice.

Azerbaijan, Constitution, Human Rights, International Norms, Ratified Treaties.

Azerbaycan Cumhuriyeti’nin iç hukuk sisteminde uluslararası normların durumunu inceleyen bu makale, başta insan hakları antlaşmaları olmak üzere onaylanmış anlaşmaların yasal gücünü ve bunların uygulanmasının durumunu ortaya koymaya çalışmaktadır.

Onaylanan uluslararası anlaşmaların ulusal yasal sistemin ayrılmaz bir parçası olduğu ve bu sistemdeki diğer herhangi bir eylemden daha üstün bir yasal güce sahip olduğu iddia edilmektedir. Ayrıca, onaylanmış insan hakları anlaşmaları, en azından, ülkenin Anayasası ile eşit bir yasal güce sahip oldukları için daha da yüksek bir konuma sahiptir. Bu nedenle, mantıklı olarak onaylanmış anlaşmalar, iç mevzuatın bu veya başka bir konuyu (uygun şekilde) düzenlemediği durumlarda uygulanmalıdır. Ancak, gerçek durum ulusal uygulamada bu kadar basit değildir. Bu nedenle, bu belgelerin doğrudan uygulanabilirliği yasal olarak beyan edilmiş olsa da, gerçekte, kendileri yerine getirilemeyen normlar olarak ele alınmakta, ancak bunlar yalnızca yerel yasal araçlarla uygulanabilmektedir. Bu, şüphesiz ulusal yasal düzenlemeleri onaylanmış anlaşmalarla uyumlu hale getirerek, bu antlaşmaların uygulamada tam olarak uygulanmasını gerektirmektedir.

Anayasa, Azerbaycan, İnsan Hakları, Onaylanmış Anlaşmalar, Uluslararası Normlar.

Introduction

The Republic of Azerbaijan (Azerbaijan) is a former Soviet republic. This “young” developing country adopted the Constitutional Act on the State Independence¹ in 1991 - on the eve of the collapse of the Soviet Union. Later, in 1995 the first Constitution of the independent state proclaimed the country as a democratic, constitutional and secular republic and defined the protection of human rights and liberties as the highest objective of the State.² In 2001 Azerbaijan became a member State of the Council of Europe.³

Azerbaijan makes efforts on better protection of human rights through ratification and implementation of numerous human rights treaties, and improvement of national legislation and practice.⁴ In this process it is important to assess the status of international norms in the domestic legal system of the country - the pivotal point for understanding the impact of those norms on the national practice.

With that aim, the first section of the present article analyses the place of international norms in the legal system of Azerbaijan. Section 2 tries to reveal their legal force and addressing universally recognised norms of international law and ratified international treaties separately, also underlines the special weight of human rights treaties in comparison to other international agreements. The final section discusses the implementation mechanism of international norms in the legal system of Azerbaijan.

The analysis in this article regarding international treaties is limited to the interstate treaties only - intergovernmental treaties are not discussed.

I. Place of International Norms in the Domestic Legal System

The Constitution of Azerbaijan (Constitution) by its Article 148 that enumerates the acts forming the legislative system of the country states that the international treaties to which Azerbaijan is party are the integral part of the legislative system of the country.⁵ The Constitutional Law on Normative Legal Acts also bears a similar wording.⁶

One author argues that it is unclear whether Article 148 of the Constitution covers international treaties only, or universally recognised principles and norms of international law as well, and claims there are references to those principles and norms in laws, as well as in the practice of the Constitutional Court of Azerbaijan (Constitutional Court).⁷ While it should be acknowledged that the Constitution and other relevant laws are not indifferent toward the universally recognised norms of international law, and in referring to those norms create some confusion at some point, it is hard to agree that any of those documents consider the mentioned norms as part of the national legislative system, as elucidated further.

First of all, the Constitution, along with the “international treaties to which the Republic of Azerbaijan is party”,⁸ or “interstate treaties to which the Republic of Azerbaijan is party”,⁹ also employs such terms as “norms defined by international law”,¹⁰ “universally recognised norms of international law”,¹¹ and “norms of international law”.¹² Notwithstanding the inconsistency of wording, it can be asserted that the Constitution mainly differentiates two concepts - “ratified international treaties” and “universally recognised norms of international law”, and confers upon the status of “integral part of the legislative system of the country” to the former only, as is explicitly stated by Article 148. Moreover, Article 151 titled “Legal force of international acts” refers only to the “interstate treaties to which the Republic of Azerbaijan is party”.¹³

The further analysis of the norms of Constitution allows for asserting that the mentioned differentiation is not logically consistent. While all the provisions referring to international treaties are mainly associated with firm obligations for the state, the provisions referring to universally recognised norms of international law are either of a declarative nature, or defining an obligation for the state. For instance, Article 1 after providing for the definition of the People of Azerbaijan states that that definition is in accordance with the norms defined by international law.¹⁴ However, Article 69, which is governing the rights of foreign nationals and stateless persons, states that the rights and freedoms of the mentioned subjects can be restricted only in accordance with the norms of international law.¹⁵ In this regard, it must also be mentioned that Article 69 is not internally consistent, as while the first part of that article in declaring the rights and duties for foreign nationals and stateless persons refers to international treaties to which Azerbaijan is party, the second part, as mentioned above, refers to the norms of international law.¹⁶ A similar inconsistency exists between Articles 7 and 10, as while the former states that the State authority on foreign policy issues is limited by the international treaties to which Azerbaijan is party,¹⁷ the latter states that Azerbaijan develops its relations with other countries in accordance with the principles of universally recognised norms of international law.¹⁸ Some accounts try to present Article 10 as a provision that indicates that the Constitution is not indifferent toward international customary law,¹⁹ and even as a provision that brings international customary law into the domestic legislation.²⁰ However, it is hard to agree with the latter notion, as the Constitution, as mentioned earlier, does not define the place of universally recognised norms of international law in the domestic legislative system.

In addition to the briefly exemplified non-coherence, the Constitution in employing the term “international obligations” in Article 71, namely stating that human rights can be restricted with the consideration of international obligations of the country,²¹ creates another ambiguity. In the light of the above-discussed inconsistencies, it is questionable whether such obligations stem from the ratified treaties only, or from the universally recognised norms of international law as well. However, taking into account the language of Article 12, which states that human rights are implemented in accordance with the international treaties to which Azerbaijan is party,²² the abovementioned “international obligations” can be understood as stemming from the ratified treaties only.

Nevertheless, the Constitutional Law on Normative Legal Acts attempts to provide a disambiguation in this regard, as aside from declaring the superiority of universally recognised principles and norms of international law as a principle of law-making process in the country,²³ it also explicitly states in a separate article that Azerbaijan recognises the superiority of those principles and norms, and ensures the conformity of the legislation of the country with them.²⁴

II. Legal Force of International Norms in the Domestic Legal System

In regard to the legal force of universally recognised norms of international law, there is available only the above provided proclamation of their superiority,²⁵ which is vague to some extent. It is unclear what they are superior to. Taking into account the final part of that proclamation, which requires the conformity of the legislation with those norms, it can be deemed that those norms are superior to the legislation of the country. Well, what is deemed by the “legislation”? While the Constitutional Law on Normative Legal Acts does not define the “legislation”, it provides for a definition for the “legislative acts”, stating that the legislative acts are the normative legal acts constituting the legislative system of the country.²⁶ As to the “acts constituting the legislative system of the country”, they are enumerated in Article 148 of the Constitution. That Article together with the laws and other inferior legal acts, also indicates the Constitution itself, as well as the acts adopted by referendum.²⁷ So, does it mean that the Constitutional Law on Normative Legal Acts claims that universally recognised norms of international law are superior also to the Constitution and the acts adopted by referendum? If this is the case, it can be considered in complete contradiction with the Constitution, as Article 147 clearly states that the Constitution has the highest legal force in Azerbaijan.²⁸ Moreover, the Constitution attaches similar importance to the acts adopted by referendum.²⁹ Therefore, universally recognised norms of international law cannot be declared by a Constitutional law to be superior to the mentioned acts in Azerbaijan. Most probably, the stipulation of “except for the Constitution and the acts adopted by referendum”, which is employed regarding the ratified treaties, is applicable in this situation as well.

As to the legal force of the ratified international treaties in Azerbaijan, a relatively clearer position is displayed, albeit indirectly. As although Article 151 is titled “Legal force of international acts”, it does not concretely rank those treaties among other legislative acts, rather deals with potential inconsistencies between acts. Namely, Article 151 states that in case of conflict between the normative legal acts of the legislative system of the country (except for the Constitution and the acts adopted by referendum) and the interstate treaties to which Azerbaijan is party, those treaties shall apply.³⁰ Hence, it can be affirmed that while the ratified interstate treaties are inferior to the Constitution and to the acts adopted by referendum, those treaties are superior to any other national legislative act. In other words, they enjoy the third position in the legal hierarchy. Having said this, it is also important to mention the discrepancy in this regard caused by another provision of the Constitution, which in entitling the Constitutional Court to review the compliance of interstate treaties yet to enter into force (in regard to Azerbaijan) with the Constitution, does not mention the acts adopted by referendum.³¹ It implies that those treaties do not necessarily have to be in line with the acts adopted by referendum, which contradicts the position of Article 151.

Further confusion arises regarding the Constitutional laws. Article 148 of the Constitution implies that the Constitutional laws and the “ordinary” laws bear the same legal force (at least, in regard to other legal documents), where enumerating the acts of the legislative system does not differentiate those two different types of laws.³² Meanwhile, a number of other provisions of the Constitution envisage the Constitutional laws as legal acts of completely distinct character, which are also a means of making additions to the Constitution, and are adopted through special procedure - much stricter than for other laws: they have to obtain at least 95 votes out of 125 (while this number is 63 for most laws, and 83 for some of them, depending on the nature of issues they are governing), have to be voted twice with a six-month interval between the votes (other laws are voted once), and have to be signed by the President of the country after each vote (the President of the country has an absolute veto right on such laws, unlike other laws).³³ On top of everything, the last clause of Article 156 clearly states that the Constitutional laws are the integral part of the Constitution.³⁴ It is worth stressing that in the provided clause Article 156 refers to all Constitutional laws, albeit in its other clauses, namely regarding the requirements of repeated voting and repeated signing procedure for the relevant laws as shown above, employs the “Constitutional laws on making additions to the Constitution”, and per se leads to another non-coherence. Taking into consideration that there is no other provision to separately govern such requirements for all Constitutional laws, the requirements for the “Constitutional laws on making additions to the Constitution” are to be understood as aimed at governing all the Constitutional laws, which is followed by the legislative body of the country, as all the Constitutional laws undergo the same legislative procedure. Back to the main point, the “integral part” proclamation explicitly encompasses all Constitutional laws. Therefore, if those laws are the integral part of the Constitution, then they should bear the same legal force with the Constitution, which is either directly or indirectly affirmed by legal scholars.³⁵ If it is the case, then the ratified interstate treaties cannot be considered to be superior to those laws, and in case of disagreement between them the latter shall apply. However, particular attention must be paid to the procedure of making amendments and additions to, as well as repealing the Constitutional laws, as it is the same procedure as the one for their adoption. It means that the provisions of these “integral part” laws are not as “integral” as other provisions of the Constitution, which can be amended by referendum only.³⁶ This consequently raises debate on the legal force of the Constitutional laws. The present article suffices with mentioning this issue, as the detailed discussion of the problem is out of the scope of the present research.