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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
ternational Covenant on Civil and Political
Rights have explicit content of the universal
principels – the principle of fair trial, the presumption
of innocence, a right to legal personality,
etc. Therefore, Article 84 of the Constitution,
establishing that “a judge … in his/
her activities … is bound by the Constitution
and a law”, must be widely interpreted. A judge
must be guided by the universally recognized
principles and norms and general principles
as the latter possess the primacy over the
Constitution and laws of Georgia, and by international
treaties, provided that they do not
contradict with the Constitution of Georgia.
Therefore, the primacy of the universally recognized
principles of international law over the
domestic law, recognized by the Constitution
of Georgia, grants a possibility to law applying
bodies not to be bound by the legislative
basis created unilaterally by a state. On its
turn, a state is obliged to establish the legislative
basis in line with the universally recognized
principles and norms. As a matter of fact
the primacy of universally recognized principles
and norms vis-à-vis the domestic legislation
does not create a hard collision situation
(unlike the treaty law), as the universal principles
operate as regulator, the basis of the
public relations within a state, upon which the
legislation should be built. The legal boundaries
of the universal principles and norms are
not clearly identified, and this has to be taken
into consideration by the legislator. In practice
this means that judicial bodies may make
decisions based on the domestic legislation,
but this does not hamper them to be guided
by the respective international norms, especially
when the latter broaden or specify the
provision of the Constitution or a law.
Georgia is one of the first states in the Eastern
European and CIS area which still before
the dissolution of the Soviet Union, right upon
the restoration of independence, with the Act of
Independence (09/04/1991) recognized the primacy
of international law over the Georgian legislation.
However the reinforcement of this provision
was possible only in the 1995 Constitution
through the Article 6 and Article 7.
Therefore, the contemporary international
law is the unity of norms with the general
democratic content, reflecting the objective
pattern of the development of mankind. If international
law at the initial stage of the formation
represented ephemeral system, today
it is established as a positive legal system,
which is the guarantee of peaceful development
of the world legal order. If in the past the
will of a state dominated in directing international
relations, today a state is obliged to
comply with the legal order, which is reflected
in international law by the world community. It
is not by conicidence that in the new political
reasoning along with the concepts such as the
priority of the general values and interests of
mankind, the unity of the world and interrelation
of states, the freedom of the choice of
ways of development, the concept of the primacy
of international law becomes increasingly
establsihed in international relations.
The contemporary international law increasingly
intrudes into the fields which in the past
strictly belonged to the internal regulation of
sovereign states. Today the primacy of international
law, i.e. the universally recognized principles
and norms of international law, are not only
the supreme legal postulates of the relations of
subjects of international law, and mainly states,
but it stands higher than domestic legal systems
of states. The international and constitutional
practice of states includes very interesting theoretical
normative practice and case law.
Even though states choose themselves
which of the concepts to follow, at the current
stage the problem of monism-dualism carries
more theoretical character, as the state bodies
both – adminsitrative and judicial shall decide
the same problems in both cases. At the current
stage international law not only influences state
systems, even more, in some cases a state is
compelled to consider and take into account the
norms of generally recognized norms of international
law.
1
H. Triepel. Völkerrecht und Landesrecht. Leipzig , 1899, s. 89; The same author: "Droit
international et droit interne. Fondation Carnegie 1920, pp. 78-81; Les rapports entre le
droit inetrnational et le droit inetrnational – "Recueil des Cours", the Hague Academy of
"International La w", 1923. t. 1, p. 83-103.
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