Diploma Work
HUMAN RIGHTS IN THE REPUBLIC OF GEORGIA
Prepared by
Zurab Vanishvili
<hremcmt@parliament.ge>
Instructor:
Mr. Levan Aleksidze, Ph.D.
Prepared for:
International Law and International Relations Department
Tbilisi State University
1 Chavchavadze Street., Tbilisi,
Republic of Georgia
June, 1993 - May, 1994
P a r t I
The roots of human rights law are very deep. In the earliest human societies, what we call the law of the jungle generally prevailed. But the History was going on... A number of institutions of the contemporary human rights law already obtained in antiquity. Among the institutions, developed in ancient Greece were that of proxenoi, who were entrusted with the protection of the interests of foreign citizens and represented them before administrative and judicial and religious authorities of the city. They exercised the functions of the contemporary consuls and enjoyed certain immunities. In ancient China the institution of Li was developed, constituting moral and legal rules similar to the contemporary rules of International Law. Among the important rules were those relating to the treatment of envoys of a sovereign The arrest or murder of envoys were condemned as contrary to the Li. Hammurabi, king of Babylon, proclaimed the famous code, which bears his name, beginning with the words:"I established these laws to prevent the strong from oppressing the weak". In ancient India International Law was practiced.It operated in the Vedic Age between tribal heads known as Rajahs. Hindu International Law applied irrespective of religion and civilization.This was despite the fact that the basis of International Law in India was religious teachings like Manu`s Dharam Shastras. In 1367 BC, Bahmani and Vijayanagar kings entered into an agreement for the humane treatment of prisoners of war. Chritian religion had proclaimed that men where created in the image of the God, that all were children of the same Father. If all men were brothers, to kill was a crime and there would be no more slaves. This concept was so revolutionary that it shook the foundations of ancient society. A special position was granted to individual in Islamic Law, as exemplified by the words of the Koran: "We have given dignity to the human being". In accordance with the Fickh-the Testament of Mohammed,"all persons enjoy the same rights". Hugo Grotius, the father of the International Law, laid down the main principles of International Law. He also declared that International Law governed not only the relations between States, but the relations between State and individual. The History of International Law during the two centuries after Grotius is marked by the evolution of the Modern State system in Europe, a process greatly influenced by the Treaty of Peace of Westphalia of 1648. The Congress of Vienna of 1815 established a modern scheme of diplomatic representations, made certain provisions concerning free navigation on International Rivers and denounced the slave trade. At the Berlin Conference in 1884 the participant Powers provided for freedom of commerce and prohibited the slave trade. The Treaty of Versailles of 1919 between the Allied and Associated Powers and Germany was most significant instrument concluded at the End of the First World War. Part One of the Treaty (articles 1-26) established the League of Nations. At the Peace Conference, when the Covenant of the League of Nations was being considered, the question of minority protection arose. Subsequently, a number of treaties were concluded by which the protection of minorities was internationalized.In addition to this treaties, certain states were obliged to declare their readiness to protect minorities, living within their borders as a prerequisite for their admission to the League. ...In accordance with the Act of Independence of Georgia, which was declared in May, 26, 1918, "the Georgian Democratic Republic equally guarantees to every citizen within her limits, political rights irrespective of nationality, creed, social rank or sex". The separate chapter of the Constitution of Georgian Democratic Republic was devoted to the rights of National minorities. According to the article 131, no one belonging to national minorities, simply by virtue of belonging to such a minority, would be subject to penal or administrative sanctions. Persons belonging to national minorities enjoyed access to adequate types and levels of education in their mother tongue. The most significant step taken by the League of Nations to guarantee the observance of human rights of persons belonging to national minorities was the establishment of the right of petition in favor of minorities. The right to address a petition to the Council was granted to individuals or associations acting on behalf of minority groups. Such right was also granted to citizens of Georgian Democratic Republic. A new epoch for the individual, the protection of his human rights, and the evolution of contemporary International Law started after the Second World War and is still continuing today. The main reasons for historic development were the horrors of the Second World War, the decay of the European Empires, the independence of a great number of former colonies and the liberation of hundreds of millions of peoples from colonial status. P a r t II The United Nations is engaged in a wide range of activities aimed at fulfilling one of its principal purposes - the promotion and protection of human rights. Of great importance is the complex machinery which has been set up under various international covenants and conventions to establish standards, monitor implementation and investigate violations of human rights. In addition to this activities, the UN also provides practical assistance to states in their efforts to protect and promote human rights and informs the public about the right it is granted with. These activities give the UN the possibility to have the leading position in the realization of human rights and fundamental freedoms. However, one organization can never hope to keep an eye on every situation. Neither can it investigate every alleged violation of human rights, or bring relief to all victims. For this reasons, the International system relies heavily on the support it receives from regional human rights systems. Support also comes from Governments and from non-governmental organizations. And each of this groups has a special role to play in the development of a universal culture of human rights. Non-governmental organizations, for example, by their very nature, have a freedom of expression, a liberty of movement, and a flexibility of action which allow them to perform tasks, which Governments and international organizations are unable or may even be unwilling to perform. The role of national Governments in the realization of human rights is particularly important. Human rights involve relationship among individuals, and between individuals and the state. Therefore, each state must be responsible for the practical task of protecting and promoting human rights. At the national level, human rights can be best protected through adequate legislation, an independent judiciary and the establishment of democratic institutions. When states ratify a human rights instrument, they either incorporate its provisions directly into their domestic legislation. Therefore, universal human rights standards and norms today find their expression in the domestic laws of the great number of countries. However, the existence of laws concerned is not enough if these laws do not also provide the institutions necessary to ensure their effective realization. The majority of existing national institutions can be grouped together in two categories: "human rights commissions" and "ombudsman"... The end of the Cold War and emergence or re-emergence of democratic rule in many countries has focused attention on the importance of democratic institutions and this process is still continuing today. P a r t III The establishment of effective machinery for protecting human rights is a permanent task of the whole international community. As society changes and develops, so the existing human rights machinery will be called upon to face new challenges. I am aware that the Georgian human rights system must constantly be improved in order to offer effective protection to individuals in Georgia. Three years ago Georgia became full, equal and sovereign member of the International community. But in spite of the fact that Georgia looks with favor on democracy, stability, peace, market economy and the rule of law, and the democratic institutions are being consolidated, some difficulties of objective and subjective character make these aims unattainable. The political freedom, plurality and the idea of market economy were welcomed by the whole population of Georgia. If this business fails, our society will not be in a position to transform itself into the society of free individuals and the steps to the authoritarian type of governance will be done. Such failure will give rise to new fleets of refugees, internally displaced persons, migrants, great number of tragedies and problems. Under the rules of dialectics, the political process and economic development are indivisible. They are equally important and have to develop in parallels. But the elaboration of the effective economic policy needs the political stability, and change for the worse of economic situation , in its turn, may lead the society to the non-stability in the state. And in more general sense,the inner relation of human rights to economic development and security becomes more and more obvious. It also should be stressed that there can be no stable development or peace where human rights are violated, just like these rights can`t be insured if there is no peace. Presence of the really democratic system and achievement of the high living standard are not the sufficient illustration of respect the human rights and fundamental freedoms. Despite of the fact, that the Western democracies stress the importance of the implementation of the human rights law, there are a lot of examples of Violations of human rights and fundamental freedoms. The presence of xenophobia, anti-Semitism, mass unemployment in the Western democracies is the striking illustration of. The other question is that Europe is not guaranteed from all that either, as has been demonstrated not only by the Yugoslav tragedy, the Gulf crisis, but also by burning of Turkish women alive in the German city of Solingen. I consider that questions relating to human rights, can be only be satisfactorily resolved in a democratic political framework based on the rule of law. I also consider that human rights policy in our state must be stable and single-minded, provided with appropriate legal regulation. The end of the Cold War and the crisis of the world socialist system conditioned fall of the living standard in a great number of the newly independent states, but these unfavorable circumstances must lead us not into error. At any rate, a negative experience is also an experience... Observance of civil rights and those of political may be guaranteed in aforementioned states, including Georgia, if there is a resoluteness of governments of states concerned to perfect their domestic legal instruments, mechanisms and means of legal regulation, which are based on the constitutional basis. However, it seems the constitutional provisions can not be the sufficient guarantees of the observance of human rights and fundamental freedoms. Respect for them depends on the appropriate legislation and infrastructure I consider that the Georgian state policy on human rights must proceed in three basic directions: 1) political 2) legal 3) institutional P a r t IV RECOMMENDATIONS 1. To determine and to work out the middle-term and long term International strategy; to define the priorities of the foreign policy; to harmonize relations with our traditional partners 2. To put out the exchange of information and of experience with the states being on the stage of democratic remaking of society 3. To popularize the International human rights standards, to disseminate the information concerning the infrastructure providing promotion and protection of universally recognized human rights at national and international levels, i.e. about the international machinery for the protection of human rights, and about the procedures provided by the International law when fundamental human rights are being violated 4. It is considered necessary to use widely the mass communication media, such as radio, TV, newspapers and magazines to the greatest possible extent for constant campaigning on issues related to the protection of human rights, in order to provide incorporation of questions, related to the human rights problems, into the ordinary legal consciousness of public and to give new impetus to the further rising of the scientific and professional consciousness of 5. To provide the energetic participation of human rights bodies in activities of the legislative, executive and judicial bodies at local and national levels, and also in all stages of the legal adjustment 6. International treaties, other inter governmental instruments relating to the protection and promotion of human rights must be ratified in order to become municipal law and to be applied by the competent authorities as substantive law 7. To introduce the simplified regime for the incorporation of the International human rights law provisions into the municipal law 8. To codify the legislation in force in order to provide the qualitative change of the legislature`s approach to the problem of effective implementation of the UN and CSCE commitments relating to the human rights issues 9. To lay down the foundation of the administrative justice 10. Taking into account the fact, that the petition system represents a considerable advance over any other system of implementation, it is necessary duly to ratify International Covenant on Civil and political rights and the Optional Protocol to the International Covenant in order to give citizens of Georgia the possibility to seek international judicial review of alleged violations of their human rights, once domestic legal remedies have been exhausted, i.e. to recognize the competence of the Human Rights Committee to receive and consider communications from citizens of the Republic of Georgia 11. To create the National Commission on Human Rights (Commission)- the independent state agency, which shall have the power to stop completely or partially affect of any normative legal act which violates any right recognized by the Constitution of Georgia 12. To create the National Council on Prevention of the Human Rights Violations (Council), which shall have the power to give instructions to the state officials in connection with any separate violation of human rights The coordinative function of the Council may be exercised without the formal right to give directives. The Council shall be consisted of the chairman (or Ombudsman), Prime minister, Minister of Internal affairs, Procurator-general, qualified experts from the Tbilisi State University, representatives of non-governmental organizations responsible for human rights 13. To provide the needy people with free judicial and legal defense 14. To establish the scientific-research institute of human rights for the theoretical investigations in the field of legal regulation, collection and investigation of information concerning human rights issues and theoretical modeling of the state human rights policy 15. To create the informative service on human rights aimed at fulfilling one of its principal purposes - the informative-consultation service of individuals seeking international judicial review of alleged violations of their human rights, once domestic legal remedies have been exhausted 16. To establish the special library on human rights 17. Human rights must be the required subject in high schools A n n e x THE NATIONAL COMMISSION ON HUMAN RIGHTS Desirability and feasibility of establishing a Commission 1 The question of the possible establishment of appropriate human rights institutions has a long history and the desire for the legal reform in this sphere has increased in modern times. 2 It has been demonstrated that the existing human rights protection system did not work very well and that it was a source of conflicts of various character. Recent years events in Apkhazeti (Abkhazia) and in Tskhinvali region have clearly shown, that there was a gap to be filled immediately. 3 The most appropriate manner to establish a Commission will be by means of a legislative act, which also defines the functions and powers of a Commission. It will ensure a stable mandate for the members of a Commission, as well as their real independence. 4 Besides having legal and humanitarian importance, the establishment of the National Commission on Human Rights shall be of great political importance. It shall significantly contribute towards stopping and resolving of conflicts in the Republic of Georgia. Structural and jurisdictional issues 5 Establishing the Commission, we must proceed from the assumption that it is subordinated only to the Constitution of Georgia 6 The right to appeal to such body supposes the observance of the following criteria: a) this institution is independent of the government; b) it is not the subject to financial control 7 The clerical work in the National Commission must be independent of the Council of Ministers. Otherwise its decisions shall not have a prestige even in governmental circles. 8 The very function of the Commission`s decisions shall be a realization of legal norms, concerning protection of human rights. 9 The Commission shall have the right to stop completely or partially affect of any law in force which violates the human rights law recognized by the Constitution. 10 The presence of the aforementioned competence shall provide the effectiveness of the legal regulation. Even the existence of such institution ipso facto shall give the positive effect. 11 The membership of the Commission shall be restricted by educational and age qualifications. 12 The precise limits of the Commission`s competence must be established. 13 If the Constitutional Court is established, their competence must be duly delimited. 14 The members of the Commission shall have the access to the documents of all relevant public authorities. 15 Establishing the Commission, the solution of the following question shall be of great importance: -Which method of regulation-civil or administrative is acceptable for the present instance? 16 The Commission shall have the right to examine the legislation in force and administrative provisions and to issue appropriate recommendations. -----
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