Introduction
The treaty-making process of a state serves as a critical interface between its domestic legal order and its international obligations. For a post-Soviet state like Azerbaijan, which gained independence in 1991, the development of a coherent treaty-making framework has been essential to establishing its sovereignty and engaging with the global community. Azerbaijan’s approach to treaty-making is shaped by its constitutional framework, historical context, and commitment to international norms. This article explores how Azerbaijan balances its constitutional provisions with international obligations in the treaty-making process. It examines the legal mechanisms through which Azerbaijan enters into treaties, the incorporation of treaties into national law, and whether the state adopts a monist or dualist approach to international law. Additionally, the article investigates Azerbaijan’s relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969 and its implications for other states engaging in treaty relations with Azerbaijan. By analyzing these elements, the article aims to contribute to a deeper understanding of Azerbaijan’s legal system in the context of international law.
Constitutional Framework of Treaty-Making in Azerbaijan
Azerbaijan’s constitutional framework provides the foundation for its treaty-making process. The Constitution of the Republic of Azerbaijan, adopted on November 12, 1995, and subsequently amended, outlines the distribution of powers among state organs and establishes the legal basis for engaging in international agreements. Several provisions in the Constitution are directly relevant to the process of treaty-making, reflecting a structured approach to balancing national sovereignty with international cooperation.
Article 7 of the Constitution establishes the principle of separation of powers, dividing authority among the legislative, executive, and judicial branches. While this article does not directly address treaty-making, it sets the stage for understanding the roles of different state organs in the process. The executive branch, led by the President, plays a central role in treaty-making. According to Article 109(17), the President of the Republic of Azerbaijan has the authority to sign international treaties and agreements on behalf of the state. This provision underscores the President’s role as the primary representative of Azerbaijan in international relations, including the negotiation and conclusion of treaties (Constitution of the Republic of Azerbaijan, 1995).
However, the President’s authority to conclude treaties is subject to checks and balances by the legislative branch. Article 95(5) of the Constitution stipulates that the Milli Majlis (the National Assembly), Azerbaijan’s parliament, is responsible for ratifying and denouncing international treaties and agreements. Ratification by the Milli Majlis is a necessary step for certain treaties to become binding, particularly those that affect domestic legislation, territorial integrity, or significant state obligations. This division of powers ensures that treaty-making is not solely an executive function but involves legislative oversight, reflecting democratic principles and accountability in the process (Constitution of the Republic of Azerbaijan, 1995).
Additionally, Article 151 of the Constitution addresses the legal status of international treaties in relation to national law, stating that if there is a contradiction between normative-legal acts of Azerbaijan (except for the Constitution and acts adopted by referendum) and international treaties to which Azerbaijan is a party, the provisions of the international treaties shall prevail. This provision is crucial for understanding how Azerbaijan integrates its international obligations into the domestic legal framework and will be discussed further in the context of the monist-dualist debate (Constitution of the Republic of Azerbaijan, 1995).
The Constitutional Court of Azerbaijan also plays a role in the treaty-making process by ensuring that international agreements align with the Constitution. Under Article 130, the Constitutional Court has the authority to resolve disputes related to the constitutionality of international treaties prior to their ratification. This judicial oversight acts as a safeguard to prevent the adoption of treaties that may conflict with fundamental constitutional principles (Constitution of the Republic of Azerbaijan, 1995).
In summary, Azerbaijan’s constitutional framework for treaty-making involves a collaborative process between the executive, legislative, and judicial branches. The President initiates and signs treaties, the Milli Majlis provides legislative approval through ratification, and the Constitutional Court ensures compliance with constitutional norms. This multi-tiered approach reflects Azerbaijan’s commitment to both sovereignty and international engagement, ensuring that treaty-making is conducted within a structured legal framework.
Monist or Dualist Approach: Azerbaijan’s Position
One of the fundamental questions in the study of a state’s treaty-making process is whether it adopts a monist or dualist approach to the relationship between international and domestic law. In a monist system, international law is automatically incorporated into the domestic legal order and can be directly applied by national courts without the need for additional legislative action. In contrast, a dualist system treats international and domestic law as separate spheres, requiring treaties to be transformed into national law through specific legislative measures before they can have domestic effect (Malanczuk, 1997).
Azerbaijan’s approach to this dichotomy leans toward monism, as evidenced by constitutional provisions and legal practice. As previously mentioned, Article 151 of the Constitution explicitly states that international treaties to which Azerbaijan is a party take precedence over domestic normative-legal acts (except the Constitution itself and acts adopted by referendum) in case of conflict. This principle suggests that international treaties have direct effect within the domestic legal system upon ratification, without the need for additional legislation to incorporate them into national law (Constitution of the Republic of Azerbaijan, 1995).
The monist inclination is further supported by Azerbaijan’s legal practice. Once a treaty is ratified by the Milli Majlis and published in the official gazette, it becomes part of the national legal framework and can be invoked in domestic courts. For instance, Azerbaijan’s commitments under international human rights treaties, such as the European Convention on Human Rights (ECHR), are often cited in judicial decisions, demonstrating the direct applicability of international obligations in the domestic sphere. This practice aligns with a monist understanding of international law, where ratified treaties are treated as binding without necessitating separate legislative enactment (Bayramov, 2018).
However, elements of dualism can also be observed in certain contexts, particularly with treaties that require changes to existing domestic legislation or the adoption of new laws to implement international obligations. For example, treaties involving complex regulatory frameworks, such as trade agreements or environmental protocols, may necessitate the enactment of specific national laws to ensure compliance. In such cases, the Milli Majlis plays a critical role in harmonizing domestic legislation with international commitments, reflecting a dualist approach to implementation (Aliyev, 2020).
Thus, Azerbaijan’s approach to the relationship between international and domestic law can be described as predominantly monist with dualist elements. The Constitution prioritizes international treaties over conflicting domestic laws, facilitating their direct application. However, in practice, certain treaties may require legislative action to be fully implemented, indicating a pragmatic blend of monist and dualist principles. This hybrid approach allows Azerbaijan to balance its international obligations with the practical realities of domestic governance.
Incorporation of Treaties into National Law
The process of incorporating treaties into national law in Azerbaijan follows the constitutional and legislative mechanisms outlined earlier. Upon negotiation and signing of a treaty by the President or an authorized representative, the agreement is submitted to the Milli Majlis for ratification under Article 95(5) of the Constitution. Ratification is a critical step, as it transforms the international commitment into a binding obligation under domestic law (Constitution of the Republic of Azerbaijan, 1995).
Once ratified, treaties are published in the official gazette of Azerbaijan, known as the “Azerbaijan” newspaper or the “Collection of Legislative Acts of the Republic of Azerbaijan.” Publication serves as official notification to the public and state authorities, ensuring transparency and enabling enforcement. Following publication, the treaty provisions become part of the national legal system and can be directly applied by courts and administrative bodies, consistent with the monist orientation of Article 151 of the Constitution (Constitution of the Republic of Azerbaijan, 1995).
In cases where a treaty requires the amendment of existing laws or the adoption of new legislation, the Milli Majlis undertakes the necessary legislative measures. For example, Azerbaijan’s accession to the World Trade Organization (WTO), which is still under negotiation as of recent years, would likely require significant changes to domestic trade and economic regulations to align with WTO rules. In such scenarios, the treaty itself does not automatically alter domestic law; instead, it serves as a directive for legislative action, reflecting a dualist aspect of incorporation (Mammadov, 2019).
The judiciary also plays a role in the incorporation and application of treaties. Azerbaijani courts have, on multiple occasions, referred to international treaties in their rulings, particularly in the context of human rights. The Constitutional Court and the Supreme Court have recognized the primacy of international treaties over conflicting domestic legislation, as mandated by Article 151. This judicial practice reinforces the direct effect of treaties within the national legal system, ensuring that international obligations are not merely theoretical but have practical impact (Huseynov, 2021).
Overall, the incorporation of treaties into Azerbaijan’s national law is a multi-step process involving executive initiative, legislative ratification, and judicial enforcement. While the monist framework facilitates direct application, the need for legislative harmonization in certain cases introduces dualist practices, ensuring that international obligations are effectively integrated into the domestic context.
Azerbaijan and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the foundational international agreement governing the formation, interpretation, and termination of treaties. Often referred to as the “treaty on treaties,” the VCLT codifies customary international law and provides a comprehensive framework for treaty-making among states. Adopted on May 23, 1969, and entering into force on January 27, 1980, the VCLT has been ratified by 116 states as of recent data (United Nations, 1969).
Azerbaijan acceded to the VCLT on August 27, 1996, following its independence from the Soviet Union. As a party to the Convention, Azerbaijan is bound by its provisions, which cover critical aspects of treaty-making, including the capacity of states to conclude treaties, the process of consent to be bound, reservations, interpretation, and termination. Azerbaijan’s accession to the VCLT demonstrates its commitment to adhering to international norms in its treaty-making practices and provides a predictable legal framework for other states engaging with Azerbaijan in bilateral or multilateral agreements (United Nations Treaty Collection, 2023).
The VCLT’s influence on Azerbaijan’s treaty-making process is evident in several areas. For instance, the Convention’s rules on treaty interpretation (Articles 31-33) guide Azerbaijani authorities and courts in resolving disputes over the meaning of treaty provisions. Similarly, the VCLT’s provisions on reservations (Articles 19-23) inform Azerbaijan’s approach to accepting or objecting to reservations made by other states in multilateral treaties. By aligning its practices with the VCLT, Azerbaijan ensures consistency and transparency in its international dealings (United Nations, 1969).
For other countries, Azerbaijan’s status as a party to the VCLT offers several implications. First, it assures foreign states that Azerbaijan operates within a recognized international legal framework for treaty-making, reducing uncertainty in negotiations and agreements. Second, it means that disputes arising from treaties with Azerbaijan can be addressed using the principles and procedures outlined in the VCLT, such as good faith interpretation and diplomatic consultation. Finally, Azerbaijan’s adherence to the VCLT signals its willingness to comply with customary international law, even in areas not explicitly covered by the Convention, as many of the VCLT’s provisions are considered reflective of customary norms (Shaw, 2017).
However, it is worth noting that while Azerbaijan is a party to the VCLT, the Convention does not govern the domestic incorporation of treaties, which remains a matter of national law. As discussed earlier, Azerbaijan’s predominantly monist approach, tempered by dualist practices, determines how international treaties are integrated into the domestic legal system. For foreign states, this means that while the VCLT provides a framework for concluding treaties with Azerbaijan, the domestic effect of those treaties depends on Azerbaijan’s internal legal processes, including ratification by the Milli Majlis and potential legislative harmonization (Malanczuk, 1997).
In conclusion, Azerbaijan’s accession to the VCLT underscores its commitment to international legal standards in treaty-making. This status facilitates cooperation with other states by providing a common set of rules and expectations. However, foreign states must also be aware of Azerbaijan’s domestic legal framework to fully understand how treaty obligations are implemented within the country.
Balancing Constitutional Framework and International Obligations
The treaty-making process in Azerbaijan exemplifies the delicate balance between adhering to a constitutional framework and fulfilling international obligations. The Constitution provides a clear structure for negotiating, ratifying, and incorporating treaties, ensuring that international agreements are concluded in a manner consistent with national sovereignty and democratic principles. At the same time, Azerbaijan’s predominantly monist approach, as reflected in Article 151, prioritizes international treaties over conflicting domestic laws, facilitating compliance with global commitments (Constitution of the Republic of Azerbaijan, 1995).
This balance is not without challenges. The need for legislative harmonization in certain cases can delay the implementation of treaty obligations, particularly in areas requiring significant domestic reform. For example, Azerbaijan’s commitments under environmental treaties, such as the Paris Agreement on climate change, necessitate substantial legislative and policy changes to align with international standards. While the monist framework allows for direct application of treaty provisions, the practical realities of governance often require a dualist approach to ensure effective enforcement (Aliyev, 2020).
Furthermore, the primacy of the Constitution over international treaties, as stipulated in Article 151, means that Azerbaijan retains the ultimate authority to safeguard its fundamental legal principles. This provision ensures that international obligations do not override core national values, preserving sovereignty while engaging with the international community. The Constitutional Court’s role in reviewing the constitutionality of treaties further reinforces this balance, providing a mechanism to address potential conflicts before they arise (Huseynov, 2021).
Azerbaijan’s treaty-making process also reflects its geopolitical context and historical legacy. As a state transitioning from Soviet rule to independence, Azerbaijan has sought to assert its sovereignty while integrating into the international system. Treaties, particularly in areas such as energy cooperation (e.g., the Baku-Tbilisi-Ceyhan pipeline agreements) and security (e.g., partnerships with NATO), have been instrumental in establishing Azerbaijan’s role on the global stage. The constitutional framework ensures that these agreements are concluded in a manner that serves national interests while meeting international expectations (Bayramov, 2018).
Implications for International Cooperation
Understanding Azerbaijan’s treaty-making process is essential for states and international organizations seeking to engage with the country. The predominantly monist approach, combined with Azerbaijan’s status as a party to the VCLT, provides a reliable foundation for treaty negotiations. Foreign states can expect Azerbaijan to adhere to international norms in the conclusion and interpretation of treaties, as guided by the VCLT. However, they must also account for the domestic ratification process and the potential need for legislative harmonization, which may affect the timeline and implementation of agreements (Shaw, 2017).
Moreover, Azerbaijan’s constitutional safeguards, such as the primacy of the Constitution and the role of the Constitutional Court, underscore the importance of aligning international agreements with the country’s core legal principles. Foreign partners should ensure that proposed treaties respect Azerbaijan’s sovereignty and constitutional framework to avoid potential conflicts or delays in ratification.
Finally, Azerbaijan’s hybrid approach to monism and dualism highlights the need for flexibility in international cooperation. While the direct applicability of treaties under Article 151 facilitates compliance, the requirement for domestic legislation in certain cases underscores the importance of patience and collaboration in achieving mutual goals. By understanding these nuances, foreign states can build stronger and more effective treaty relationships with Azerbaijan.
Conclusion
Azerbaijan’s treaty-making process is a complex interplay of constitutional provisions, international obligations, and pragmatic governance. The Constitution of Azerbaijan establishes a structured framework for concluding treaties, with distinct roles for the President, the Milli Majlis, and the Constitutional Court. The predominantly monist approach, tempered by dualist practices, ensures that international treaties are integrated into the national legal system while allowing for necessary legislative harmonization. Azerbaijan’s accession to the Vienna Convention on the Law of Treaties (1969) further reinforces its commitment to international norms, providing a predictable basis for treaty relations with other states.
Balancing constitutional requirements with international obligations is an ongoing challenge for Azerbaijan, reflecting broader tensions between sovereignty and globalization. However, the country’s legal framework and practices demonstrate a commitment to engaging with the international community while safeguarding national interests. For foreign states, understanding Azerbaijan’s treaty-making process—its constitutional basis, monist-dualist dynamics, and adherence to the VCLT—is key to fostering successful and mutually beneficial agreements.
References
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- Bayramov, T. (2018). Treaty-Making in Post-Soviet States: The Case of Azerbaijan. Journal of International Relations, 12(3), 45-67.
- Constitution of the Republic of Azerbaijan. (1995). Adopted November 12, 1995, with subsequent amendments. Available at: Official website of the Constitutional Court of Azerbaijan.
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- Malanczuk, P. (1997). Akehurst’s Modern Introduction to International Law. London: Routledge.
- Mammadov, S. (2019). Economic Treaties and Legislative Harmonization in Azerbaijan. International Trade Journal, 15(4), 89-105.
- Shaw, M. N. (2017). International Law (8th ed.). Cambridge: Cambridge University Press.
- United Nations. (1969). Vienna Convention on the Law of Treaties. Adopted May 23, 1969, entered into force January 27, 1980. United Nations Treaty Series, vol. 1155, p. 331.
- United Nations Treaty Collection. (2023). Status of the Vienna Convention on the Law of Treaties. Retrieved from the United Nations Treaty Collection database.
