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I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
legislator contemplated that the Constitution
of Georgia in any case and not only by the
time of the adoption of the Constitution must
comply with this requirements. At the same
time the question emerges: is the Georgian
legislation objectively in line with the universally
recognized principles and norms of international
law Such a question would not
have emerged, provided that Georgia, even
when undergoing the procedure of ratifying
or accessing the international treaties, would
first require harmonization of the Georgian legislation
with the latter and undertake the procedures
only afterwards. However the practice
of the Georgian Parliament has confirmed
that it is also possible that the country first
ratifies the international treaty and only afterwards
harmonizes the domestic legislation with
the instrument (as an example of this the ratification
of the Statute of the International
Criminal Court can be cited).
The issue can be solved in an easier manner,
when we discuss the international treaties,
even multilateral regional (for example,
in relation with the European Union), as in this
case the will of a state, to limit its sovereignty,
is evident. A state agrees to alter the Constitutional
provision in line with requirements as
envisaged by the international treaty (this is
what did France, and not once, in the process
of transformation of the European Communities
into the European Union). But this, must
be reiterated, refers to international treaty, the
issue of participation into or staying outside
of which is decided by a state.
In case if the domestic law employing body
comes across the inconsistencies in the Constitution
and the universally recognized norms
of international law, it will have a dilemma -
which norm to use. Herewith we support the
view of I. Putkaradze that the norm shall be
used deriving from the primacy of international
law, as the norm directly applicable in Georgia.
Any international court, such as for example,
in the field of human rights, will grant
against a state whose constitution does not
correspond with the universally recognized
norms, especially if it recognizes that its legislation
“is in line with” the universally recognized
principles and norms of international law.
In our view when including the terminology
of universally recognized principles and
norms of international law in the Constitution
of Georgia, the legislator implied that Georgia,
being a member of the contemporary civilized
world community, does share the ideas
recognized by international law and the criteria
of legality recognized by it, as well as the
main directions of international law through
which the regulation of Georgia’s international
legal relations and domestic relations will
take place. The legal system of a state is not
confined to the unity of legal norms. The legal
system includes as legal norms (in relation with
the international law the treaties which were
duly recognized by a state), legal conscious
(which must derive from the content of universally
recognized principles and norms of international
law), the legal relations based on
the norms (among those international ones),
as well as the process of the norm application
(through which the “introduction” of the international
legal norms into the domestic legislation
takes place). Regulation of all these processes
without the universally recognized
norms and principles is inadmissible. The Georgian
legislator is obliged to be guided by these
principles and norms in the legal drafting process,
as they constitute the ideological source
of law. Apart from this, in cases when any given
relation is not regulated by state legal
norms (the vacuum of law), they are used as
an immediate normative basis when deciding
on application of law in a concrete legal case.
Therefore the operation of the universally
recognized principles and norms extends
over not only the domestic law, but at the legal
system as a whole.
The majority of the universally recognized
principles and norms (the law of human rights,
international law of the sea) have a concrete
content, meaning that their direct application
in the field of domestic law is possible. For
example, a judge is obliged to ensure the observance
of norms included into the International
Covenants of 1966 , even if they are
not reflected in the domestic legislation of the
country, not only due to the fact that a given
instrument has become legally binding for
Georgia following its ratification, but also due
to the fact that the majority of the norms of
the instruments carry universal character. The
very principle of respect of human rights, the
principle of equality of a man and a woman,
the principle of freely using the natural resources
and wealth by people, the principle of outlawing
the slavery and slave trade, are among
those. However, a number of norms of the In-
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