The State of Law in the South Caucasus

Fifteen years after the fall of Soviet rule, Armenia, Azerbaijan and Georgia remain plain examples of post-authoritarian transitions that have gone awry. There are differences between these three countries in terms of their political and economic developments. Freedom House, for example, has consistently ranked Armenia and Georgia above Azerbaijan in terms of economic liberalization and political democratization.¹ Moreover, Georgia certainly fares better than Armenia in terms of democratic development, taking into account that Georgia recently witnessed the rise of a young and reformist elite to political power (winter 2003). In contrast, Armenia appears to be stuck with a government that does not tolerate any opposition to its rule, as the brutal crackdown of a recent attempt at replicating Georgia’s ‘Rose Revolution’ has clearly demonstrated (spring 2004).

‘It doesn’t matter who votes, but who counts the votes’ (attributed to Joseph Stalin)²

Just as Georgia’s most infamous son expressed cynicism about elections, so too have observers of electoral practices in the contemporary South Caucasus. International and domestic organizations have bemoaned the prevalence of biased media coverage, arbitrary and opaque decision-making, as well as outright vote theft. Credible claims of improper practices have dogged presidential, parliamentary and local elections in Armenia, Azerbaijan and Georgia. But, public protest over unfair elections generally has been ignored or repressed.

The period of continuing political and economic instability following Azerbaijan’s independence from the Soviet Union has resulted in limited progress in state building, democratization and the construction of the rule of law. The usual challenges facing transition countries have been compounded by, among other things, the ongoing conflict over Nagorno Karabakh and the difficulties faced in managing oil reserves.¹ However, a great incentive to make democratic and legal progress is the possibility of closer ties with Europe. This chapter outlines the state of the rule of law and democratization in Azerbaijan today and considers prospects for reform through dialogue with Europe. In this regard, it focuses on Azerbaijan’s relationship with the European Union (EU), but also considers other aspects of the European relationship, including Azerbaijan’s membership in the Council of Europe.

Any account of the rule of law in the South Caucasus would be incomplete without considering the situation in the separatist territories of the region.¹ Nagorno Karabakh (‘Karabakh’), South Ossetia and Abkhazia are often portrayed as lawless areas and have received little scholarly attention beyond analyses of the conflicts themselves.² This chapter aims to foster a broader understanding of the secessionist territories by taking a closer, internal look at the rule of law in two of the three territories, South Ossetia and Karabakh. It does so by examining how local actors — lawyers, judges, law-makers and citizens — behave with respect to law. For present purposes, the views of the international community on territorial integrity, self-determination and recognition are relevant, only insofar as they impact on the behaviour of local actors. Sidestepping the question of international legal personality allows for a neglected sociolegal analysis of these territories and, specifically, offers insight into the conditions necessary for the rule of law to emerge in territories at the margins of both the region and international life.

The role of lawyers in legal systems in transition countries is not well understood. For example, democracy scholar Thomas Carothers has argued that ‘the emphasis on judiciaries is widespread in the rule-of-law field, with the terms judicial reform and rule-of-law reform often used interchangeably.’¹ That is not to say that funders of rule of law technical assistance do not recognize the importance of reforming and strengthening the profession of lawyers in the context of advancing broader rule of law reform. However, there has been little in the way of articulating why it is that lawyers are important to broader rule of law reform and economic development. In short, the approach to reforming the profession of lawyers has been more a mantra than a clear understanding of how it is this profession fits into the larger constellation of transitional legal systems.

A primary method for creating and strengthening the rule of law and improving justice is to increase professionalism in the legal community. As the previous chapter suggested, one of the ways this may be achieved is by instituting structural reform of the legal education system. Azerbaijan has experienced a series of sweeping changes in its infrastructure and legislation in the past decade; nonetheless, entrenched attitudes and practices in legal education continue to hinder the development of an effective law-based system. This article looks at the history of legal education, current reform efforts and its future prospects.

A healthy business environment is central to the creation of wealth in emerging markets such as those of the South Caucasus. The business environment includes a range of factors associated with the functioning of the state that influence the profitability and predictability of economic activity — from tax systems to regulatory hurdles, official corruption, responses to organized crime and the enforcement of business contracts and property rights. Apart from the content of legislation which must be adapted to a market economy, the rule of law is itself a primary determinant of the business environment. This chapter will consider the development of the legal environment for business in Georgia through the prism of the rule of law.

One of the sectors that has been the object of a drastic programme of reform and has given rise to a huge amount of new legislation in each of the South Caucasian states is telecommunications. The following comparative analysis of legal reform in the telecommunications sector shows that the quality of the reforms implemented can have an important influence on the growth and development of a particular sector. The painful failure of Armenian telecommunications reforms demonstrates that unreasonable policies and regulations can seriously harm the sector in question and can have a very negative impact on the overall economy of the state. Although the laws and legal practices in existence in each of the South Caucasian states are far from ideal, the experience of Georgian telecommunications reform suggests that, if well-structured policies are introduced in a proper fashion, legal mechanisms do work in the region. And they yield positive results, as evidenced by the significant growth in the telecommunications sector in Georgia.¹

The environment has historically been an important cultural issue in the three countries of the South Caucasus. The land and its resources have played a critical role in defining these nations’ identities, in relation to one another and in light of constant invasion and colonialization at this continental crossroads of major powers. During the Gorbachev era of the late 1980s, the environment was a prominent issue in the unfolding politics of the Soviet Union’s breakdown, emerging nationalist expressions and eventual moves towards independence. In 1988, the Greens Union of Armenia was instrumental in organizing protests against continued operation of the Medzamor nuclear power plant and a demonstration of 150 000 people against operation of the polluting Nairit chemical plant, forcing the closure of both in 1989 and 1990 respectively.¹ In Georgia, the environmental movement coalesced around a weapons-grade nuclear power plant in Mtskheta, just thirty miles outside of the capital, Tbilisi. This movement was effective in forcing the closure of the plant, and from these actions, the Georgian Green Party was formed. With independence from Moscow in 1991, and the move towards capitalist democracies, came the hope of an improved environment in the South Caucasus. Unfortunately, for the most part, the environment in these countries has not improved, and in some cases, has become further degraded.

Equality between the sexes is an established concept with an important history in Armenian society. Ancient Armenian legal codes and constitutions were protective of women’s rights as far back as 443 ad, when the Codes of Shahapivan specifically gave a woman the right to the family property in the event that her husband left without grounds. The code also gave her the right to bring a new husband into the same house.² The twelfth-century Criminal Code of Mkhitar Gosh specifically prohibited violence against women and imposed criminal penalties on anyone perpetrating such violence.³ More recently, in the twentieth century, Armenian women were members of the national Parliament in the first Armenian Republic (1918–20) at a time when women in the United States still did not have the right to vote.

This chapter will focus on the protection of housing and property rights of refugees and internally displaced persons (IDPs) in Georgia.¹ Georgia suffered two ethnic conflicts shortly following its declaration of independence from the Soviet Union in 1991 — one in Abkhazia in western Georgia and one in South Ossetia on the Russian border. Both conflicts produced large numbers of displaced persons and left the regions administered by secessionist governments; however this chapter will focus mainly on the South Ossetian context.