The constitutional human rights in Uzbekistan: positivism, traditionalism, and a cautious shift towards international legal standards

Abstract

Until recently, unofficial interpretations of the situation with human rights had remained as an unspoken taboo in Uzbekistan, whereas foreign observers harshly criticized the country, pointing out systematic violations and restrictions of rights by the state. Indeed, not many could predict that the new President Shavkat Mirziyoev, who was elected in 2016, would initiate steps towards improving the human rights situation and, simultaneously, face specific challenges. The 1992 Constitution was developed within the complex transition process from socialism to market economy. This Constitution devotes an entire chapter to human and citizens’ rights. Initially, some authors expected that the Constitution would integrate rights in the context of natural-legal ideas. However, Uzbekistan has largely preserved and strengthened the positivist approach towards constitutional rights, designating the state to grant and limit those rights. The paradox of this situation is that Uzbekistan’s tendencies conflict with the general trends of the post-socialist constitutionalism since the country practically did not change constitutional provisions’ evolutionary development. On the other hand, in the post-socialist Eastern European countries and some former USSR republics, the collapse of socialism led to a constitutional revolution. The author applies historical analysis and cognitive constitutionalism methods to explain a paradox of impossibility to root natural-legal ideas within the (1) deeply-rooted Soviet positivism and (2) revived pre-Soviet traditionalism. On the other hand, the historical 1992 Constitution preparatory process, guided by the special Working group and headed by Islam Karimov, and the theory of human rights in Uzbekistan inherited a strong influence from the doctrine of the Soviet constitutionalism; its positivism, dogmatism and normativism. On the one hand, the author focuses on the impact of traditionalism revived after 1991 in national customs, behavioural attitudes, or social values; and paternalism that had transformed into a “super-presidentialism”, which widely continued a principle of the state’s priority above the individual. In conclusion, the author points to the existing legal imperfections of the constitutional text, and offers approaches to shorten the gap between the supporters of positivism in the 1992 Constitution and the natural right theory’s followers.