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‘
ABSTRACT
Historical experience testifies to the fact that migration processes, which represent the harmony of
objective needs and subjective interests of people, have a natural character. Population migration
has long been dependent on a number of factors. Despite the fact that migration is restricted or
strictly controlled by the governments of different countries, these processes have not stopped
1
.
Indeed, this phenomenon is inextricably linked not only with the laws of civilization and
anthropological development of mankind, but also with the diversity of institutions of migration law.
KEYWORDS
Land plot, state need, public need, seizure, compensation, appraisal.
INTRODUCTION
1
Zinchenko N.N. Mezhdunarodnoe migratsionnoe pravo: osnovi teorii i praktiki. – М.: Nauchnaya kniga, 2011. –
S.8.
The Emergence Of Migration Law As A Natural Right In The
Central Asia
Lukhmonjon Isokov
Doctor Of Philosophy In Law (Phd), Senior Prosecutor Of The Academy Of The General
Prosecutor's Office Of Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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The formation of institutions of migration law
is the gradual development of the ability of a
person to move in the direction he needs,
using different routes and means of
movement. There is no absolute freedom in
the movement of people, as there were other
barriers in the form of climatic and
geographical features to move from one place
to another, even in the absence of restrictions
by the authorities and state borders. It also
depends on a person’s physical ability.
We believe that the natural feature of the
origin of migration right is related to the
“nature” of human. Consequently, man loses
the meaning of his existence without these
legal possibilities.
The second stage in the formation of
migration law – the period of transition from
customary law to the level of natural law –
begins in the early Middle Ages. The following
is a chronological analysis of the specifics of
the formation of institutions of migration law
on the basis of historical and legal sources in
the period from early feudalism to the
beginning of the twentieth century.
Medieval Eastern society developed in a
unique way, in contrast to the feudal Western
model of development. Slavery in the East did
not play an important role in social
production. The common similarities in the
socio-economic development of medieval
Eastern countries such as Central Asia, India,
China, the Arab Caliphate, Japan are that none
of them have reached the European level of
migration legal relations. The reason for this
can be seen in the following historical
evidence and analysis.
The early Middle Ages were rich in massive
migration processes. The social relations
associated with population migration have not
excluded the peoples of Central Asia either.
According to scientist B.Mamarahimova,
thousands of Sogdian migrants moved to the
largest ancient city in China called Dunhuang
in 534. This was due to the special legal and
trade privileges granted to Central Asian
migrants by the Wei dynasty.
We believe that the creation of a favorable
socio-legal
and
economic-financial
environment for Sogdian migrants in China
depends not only on these benefits, but also
on the political aspects of the issue.
Consequently, the Sogdians took control of
the Khami province near the city of Kumul,
where they introduced the administration of
the khanate. Kan Su-mi from Samarkand has
been appointed governor (duhufusi) of Beyan
district in Ordos, and migrants from Sughd
continued to arrive in these areas. In
particular, in 630, the “great leader” An Tu-
khan from Bukhara brought 5,000 Sogdians to
northern China
2
.
Among the nearly 50,000 migrants, Sogdians
are involved not only in trade but also in the
administrative and military spheres
3
. The fact
the more than 20,000 manuscripts written in
the languages of the peoples of Central Asia
and Asia Minor were found in caves near
Dunhuang
4
also confirms this information
(picture 1).
2
Kamalov A. Kitayskie istochniki po istorii
kochevikh
uyghurov
//
Issledovaniya
po
uyghurovedeniyu. – Almaty, 2002. – S. 109-126;
Maršak B.I. Türkler ve Soğdlular. – S.174.
3
Mamarahimova B.I. Buyuk Ірак yo'li –
sivilizatsiyalararo muloqot yo'li. – T.: TDSHI, 2010. –
B.28.
4
Uzbekiston milliy entsiklopediyasi. 3-jild. – Т.:
“Uzbekiston milliy entsiklopediyasi” Davlat ilmiy
nashriyoti, 2002. – B.383.
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Picture 1. “Sogdian Daēnās”
5
found in Mogao Caves in Dunhuang.
5
Sogdian Daēnās,
also known as Sogdian Deities (French: Deux divinités féminines; Chinese:
粟特神祇白畫
) is
a 10th-century line drawing discovered by the French Orientalist Paul Pelliot at the Mogao Caves. It was painted
during the late Tang dynasty and the Five Dynasties and Ten Kingdoms period, and is probably associated with
the Zoroastrian cult of the Sogdian people. See also: Gorshenina S., Rapin С. De Kaboul à Samarcande: Les
archéologues en Asie centrale. – Paris: Éditions Gallimard, 2001. – Р.107.
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National Library of France
6
.
6
Drège J.-P. Études de Dunhuang et Turfan. – Genève: Librairie Droz, 2007. – Р.64. (448 p.)
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In addition, the “Old Letters” once again
confirm that the coins of the orientalist
A.Khodjaev in Sogdian script contributed to
the development of international trade, that
Chach and Sogdian merchants lived as a group
in foreign settlements
7
, and that Sogdian
migrants were in constant contact with their
relatives in Sughd
8
.
There are sources that the freedom of
conscience of migrants is legally guaranteed.
For example, Sogdian migrants in Loyang, the
capital of the Northern Wei dynasty, built a
Zoroastrian temple for themselves. In
addition, the Chinese administration was in
tolerant attitude to other religions
9
.
The Turkish Khanate, founded by the Ashina
dynasty in the middle of the 6th century,
emerged as a new political force in the region.
Existing conditions have intensified migration
and integration processes between different
ethnic groups living in Central and Middle Asia,
in particular, Turks and Sogdians
10
. Trade not
only brought revenue to the royal treasury,
but also gave it the responsibility to protect
Central
Asian
migrants
politically
and
militarily
11
.
One of the most important institutions of
migration law in the ancient Turkish peoples
was the issue of refugees. No one was able to
admit to their yurt with the status of refugees
who were being persecuted by the elders.
7
Khujaev A. Sughdiylarning Khitoyga borib qolishi
// Moziydan sado. – 2002. – № 2 (14). – B. 42.
8
Vaissiere E. Histoire des marchands sogdiens.
Paris: College de France, 2002. – P.43-67. (413 p.)
9
Khujaev A. Sughdiylarning Khitoyga borib qolishi
// Moziydan sado. – 2002. – № 2 (14). – B. 42.
10
Otakhujaev А. Ilk urta asrlar Markaziy Osiyo
tsivilizatsiyasida
turk-sughd
munosabatlari.
Мonografiya. – Т.: ART-FLEX, 2010. – B.39.
11
Otakhujaev А. Ilk urta asrlar Markaziy Osiyo
tsivilizatsiyasida
turk-sughd
munosabatlari.
Мonografiya. – Т.: ART-FLEX, 2010. – B.12.
They were expelled to the desert (ostracism),
which was often equated with the death
penalty
12
. However, we consider that Z.
Mukimov’s equation of this persecution with
ostracism is wrong. Because in the institute of
ostracism used in Ancient Athens, a person
had to leave the city within 10 days, and during
the time of exile he retained his political and
economic rights. In this regard, we agree with
Aristotle that “ostracism is not a punishment
for a crime, but a humane measure to prevent
the seizure of power” or Plutarch’s “measure
to reduce the arrogance of officials”.
Due to the spread of Islam in Central Asian
countries, the formation of institutions of
migration law is closely linked to Muslim law,
especially until the twentieth century. In
particular, the legal relations of migration
were regulated by the norms of Muslim law, in
which its Sunni orientation and Hanafi sect
played a key role.
It is known from history that in Muslim
countries the population is not divided into
categories according to class. Because a
person’s legal status is determined by his or
her religious beliefs. According to Sharia, only
Muslims had full civil legal status
13
.
As a result of the establishment of a
centralized state of the Samanid dynasty in
Movarounnahr, the famous Eastern scholars
enriched world science with their discoveries,
teachings and immortal scientific works, and
raised it to the highest point, which marked
the beginning of the first Eastern Renaissance.
The teachings of such thinkers as Imam al-
Bukhari, Abu Nasr al-Farabi, Abu Rayhan al-
Beruniy, Abu Ali ibn Sina on state and law,
12
Muqimov Z. Uzbekiston davlati va huquqi tarikhi.
– Т.: “Аdolat”, 2003. – B.49.
13
Davlat va huquq tarikhi: IIV oliy ta’lim
muassasalari uchun darslik / H.Т. Оdilqoriev, N.P.
Azizov, H.R. Маdirimov. – Т.: Uzbekiston
Respublikasi IIV Akademiyasi, 2013. – B.102.
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migration and citizenship have left their mark
on world history. In particular, Imam al-
Bukhari in his work “Al-adab al-mufrad” states
that the prayer of a migrants, along with three
categories of people - parents and the
oppressed - will undoubtedly be acceptable in
the
sight
of
God
(picture
2)
14
.
14
Imam al-Bukhari. Al-Adab Al-Mufrad: Khadisi
Proroka o dostoynom povedenii (17:32). – SPb.:
“Dilya”, 2009. – S.19.
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Picture 2. Chapter 17, Hadith 32, written in Arabic.
Abu Ali ibn Sina, one of the great
representatives of the culture of the early
Renaissance, was known not only as a great
physician, writer, philosopher, naturalist,
mathematician, ethicist, but also as a brilliant
lawyer of his time. It is no exaggeration to say
that Ibn Sina's “Risala fi tadbiri al-Musafirin”,
which divided citizens into three categories:
rulers, soldiers, and artisans, was a practical
guide for migrants. A manuscript of this work,
written in Arabic, is being kept in the British
Museum. The pamphlet describes not only
migrants, but also special events for sea
travelers and other issues
15
.
V.V. Grigorev, a great expert on the history of
the peoples of Central Asia, classified labels as
decrees,
orders,
diplomas,
passports,
proclamations
16
, gift or protection sheets,
letters as the most important and basic legal
document established by the supreme
authority
17
. All of these documents were listed
as identical labels and were also used in the
form of “command” or “decree”. According
to this source, an identity document - a
15
Abu ali ibn Sina. Аvitsenna. Кanon vrachebnoy
nauki. V shesti tomakh. Izd-e vtoroe. Тоm. 1. –
Тashkent: Izd. FAN Uzbeksoy AN, 1961. – S. 366-
373.
16
Proclamation
(
Lat.
proclamare, to make public
by announcement) is an official declaration issued
by a person of authority to make certain
announcements known.
17
Grigoriev V.V. O dostovernosti yarlikov, dannikh
khanami Zolotoy Оrdi russkomu dukhovenstvu //
Rossiya I Aziya. – SPb., 1876. – S.180.
passport or a permit guaranteeing freedom of
movement - a visa has been widely used in
Central Asian countries since the early Middle
Ages.
Some issues concerning the institutions of
migration in Muslim law are also found in
Burhaniddin Marginoni’s Hidayah, written in
1178. “Hidayah” has been a major source of
jurisprudence in many Muslim countries for
centuries, recognized as a Sharia’s guide or
codex in Hanafi. Hidayah, the most accurate,
consistent,
and
perfect
work
on
jurisprudence, served as a judicial guide in
Uzbekistan until the 1920s, when the
judiciary(old uzbek judicial system that judges
judge people according to sharia rules, named
“kozi sudi”) was abolished and the Soviet
judicial system was introduced
18
.
The book “Hidayah” contains a number of
comments on the legal status of foreigners in
the law of migration, the regulation of social
relations arising from the movement of an
individual from one place to another. In
particular, the following examples can be
listed. For example, a foreign national is not
allowed to stay in the territory of a Muslim
country for more than one year. Because he is
entitled to a tax of one-tenth of his income for
one year, he will have to pay the same amount
of tax for the next year upon his return to the
territory. This type of tax serves to ensure the
protection of foreigners
19
. If a member of
18
Uzbekiston milliy entsiklopediyasi. 11-jild. – Т.:
“Uzbekiston milliy entsiklopediyasi” Davlat ilmiy
nashriyoti, 2005. – B.326.
19
Burkhanuddin Marguinani. Hidayah. Kommentarii
musulmanskogo prava: v 2 ch. Ch. 1. Т. I—11 / per. s
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another religion converts to Islam and moves
to a Muslim country, he or she is required to
annul his or her previous marriage. A mother
cannot move to another foreign country with
her child
20
. A divorced woman cannot move to
another place with her child also, but it is legal
to return to the country where the marriage
was registered
21
. It is said that a mother can
move from the village to the city with her
child, but moving from the city to the village is
not advisable as it has a negative impact on
the child’s maturity
22
.
Furthermore, there are comments on a
number of concepts in “Hidayah”
23
. In
particular, non-religious citizen of a Muslim
state “zimmiy”, international Muslim law
“siyar”, the allowance paid during the trip
“nafaka as-safar” and other similar terms are
analyzed in depth (picture 3).
angl.; pod red. N.I.Grodekova; otv. red., avt.
predisl., vstup. st. i nauch. коmm. prof. А.Kh.
Saidov. – М.: Volters Kluver, 2010. – S.89.
20
Burkhanuddin
Marguinani.
Hidayah.
Kommentarii musulmanskogo prava: v 2 ch. Ch. 1.
Т. I—11 / per. s angl.; pod red. N.I.Grodekova; otv.
red., avt. predisl., vstup. st. i nauch. коmm. prof.
А.Kh. Saidov. – М.: Volters Kluver, 2010. – S.186.
21
Burkhanuddin Marguinani. Hidayah. Kommentarii
musulmanskogo prava: v 2 ch. Ch. 1. Т. I—11 / per. s
angl.; pod red. N.I.Grodekova; otv. red., avt.
predisl., vstup. st. i nauch. коmm. prof. А.Kh.
Saidov. – М.: Volters Kluver, 2010. – S.335.
22
Burkhanuddin Marguinani. Hidayah. Kommentarii
musulmanskogo prava: v 2 ch. Ch. 1. Т. I—11 / per. s
angl.; pod red. N.I.Grodekova; otv. red., avt.
predisl., vstup. st. i nauch. коmm. prof. А.Kh.
Saidov. – М.: Volters Kluver, 2010. – S.336.
23
Al-Hidayah fi Sharh Bidayat al-Mubtadi (d. 593
AH/1197 CE) (Arabic:
ة ياده لا
ي ف
حرش
ة ياد ب
د ب لا
, al-
Hidāyah fī Shar
ḥ
Bidāyat al-Mubtadī), commonly
referred to as al-Hidayah (lit. "the guidance", also
spelled Hedaya.
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Picture 3. “Hidayah” work. The Kazan manuscript of 1905.
In the course of the study of the Mongol
conquest, which conquered the territory from
East to West in the XII-XIII centuries, it was
found that some institutions of migration law
were formed as customary law. According to
the historian A.R.Muhammadjanov, the word
"Mongol"
itself
means
“foreigner”,
“wanderer”, “immigrant”
24
. In a word, we
think that the nomadism of the Mongol
people fully proves the idea of their migration.
A distinctive feature of the non-settled
Mongol people was that movement or
migration was considered sacred to them not
only as “freedom” but also as “value”. An
example of this is the constant migration from
one place to another, and even the conquest
of new lands.
24
Mukhammadjonov A.R. Uzbekiston tarixi. – Т.:
Gofur Gulom nomidagi nashriyot-matbaa ijodiy uyi,
2004. – B.312.
In 1216 Khorezmshah sent ambassadors to
Genghis Khan under the leadership of
Bahauddin Ghazi. As a result of the
negotiations, it was agreed on the free
movement of traders in the territories of the
two countries
25
. However, the rude violation
of this agreement by the deputy of Otrar led
to the march of the Mongols. As a result of
the terrible war and the conquest by Genghis
Khan, the laws of Yasak were widely
introduced among the nomadic or semi-
nomadic population. An analysis of historical
sources on state and law has shown that there
was a norm on migration law among the
instructions.
For
example,
professor
H.T.Odilkoriev writes that refusing to return a
refugee slave to his master or giving him
asylum was classified as a criminal offense and
was punishable by death
26
.
25
Mukhammadjonov A.R. Uzbekiston tarixi. – Т.:
Gofur Gulom nomidagi nashriyot-matbaa ijodiy uyi,
2004. – B.168.
26
Davlat va huquq tarikhi: IIV oliy ta’lim
muassasalari uchun darslik / H.Т. Оdilqoriev, N.P.
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Marco Polo, a well-known merchant and
traveler, also confirmed that the first travel
documents and permits to move in the
territory of the Mongol Empire were issued by
high-ranking officials. In particular, he testified
that he kept a passport, a golden paiza
27
, a gift
from the Mongol khan Kublai, until the last
day of his life (picture 4).
Azizov, H.R. Маdirimov. – Т.: Uzbekiston
Respublikasi IIV Akademiyasi, 2013. – B.153.
27
Paiza
or paizi or gerege (Middle Mongolian:
Гэрэгэ, Mongolian: Пайз, Persian:
ي
pāiza,
Chinese:
牌子
páizi) was a tablet carried by Mongol
officials and envoys to signify certain privileges and
authority.
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Picture 4. Kublai Khan are giving “golden label” to brother’s Polo.
Miniature from the manuscript of “The Description of the World”
28
.
28
Marco Polo. La description du monde / Ed. L. Hambis. – Paris: Librairie C. Klincksieck, 1955. – 433 p.
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Scientists have made various hypotheses
about the paizas. Our research shows that
paiza was used not only as a credential in
Eastern countries, but also as one of the
important institutions of migration law that
guaranteed freedom of movement. In fact,
the paizas considered as not an identity
document, but a travel document that
allowed to move from one place to another. In
this sense, it is no exaggeration to say that the
paizas were an important medieval institution
of migration law. The famous Persian
statesman,
physician
and
encyclopedic
scholar,
Rashiduddin
Fazlullah
ibn
Imamuddavla Abulkhair Hamadoni (1247-1318),
the minister of the Genghis Khanate of the
Khuluku dynasty, mentioned this in his “Jāmi
ʿ
al-tawārīkh” (picture 5).
Picture 5. Ruler’s travel. Paiza hanging around the necks of his companions.
Miniature from the manuscript of “Jome at-tavorix”.
In fact, the first information about paiza can
be found in the chronicles of the Chinese Tang
dynasty in the VII-X centuries. According to
the source, the first paizas were made of
silver, about 12 cm long and 4 cm wide, with
the following inscription: "Silver plate for
movement on service horses by order of the
state." Hence, the paizas were originally
considered travel documents for horsemen
and officials.
In the countries of the East, famous examples
of primitive passports such as Abdullah,
Kublai, Tokhtakhan and Uzbekkhan are kept in
museums around the world.
During the reign of the Golden Horde khan
Uzbekkhan (1283-1341), Islam was the first
officially recognized religion among the
Mongols, and the legal system of the Jochi
nation was significantly improved. In order to
differentiate himself from others, Uzbekkhan
introduced paizas 30 cm long and 10 cm wide,
in which the Mongolian words in golden
Uyghur script were written: “The order of the
eternal sky. Uzbekkhan's decree. Anyone who
disobeys is guilty and sentenced to death”.
(picture 6).
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Picture 6. Uzbekkhan’s paiza.
Abdullakhan (1340-1370), the ninth son of
Uzbekkhan, also continued to strike paizas.
On the 26.5 cm long, silver-plated Abdullah
Khan's paiza were inscribed following
inscription: “By the power of the eternal sky.
Under the auspices of a great power. Those
who disobeyed Abdullah's order were
sentenced to material damage and death”
(picture 7).
Picture 7. Abdullakhan’s paiza
Interesting evidence has been found that the
documents of movement in the countries of
the Middle East were of international
importance. Merchants and various migrants
traveling on the Great Silk Road were also
stamped with paiza, which served as travel
documents. For example, paizas written in
three languages (Persian, Chinese and Old
Mongol) were found near the city Beijing and
on the surface of that paizas were inscribed
“Announcement. Beware of the wicked”
(picture 8).
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Picture 8. Paiza written in Persian, Chinese and Mongolian. XIV century.
When we examined the Golden Horde paints,
it was discovered that they directly served to
confirm a written document - the labels. If the
document lost its validity for any reason, its
owner continued to use the payzza until he
received a new label. With the introduction of
Islam in the nations during the reign of the
Uzbekkhan, the words "By the power of the
Eternal Heaven" were replaced by the symbol
of faith - the word testimony “there is no god
despite of Allah, Muhammad is the Messenger
of Allah”.
At the same time, the constant movement of
countless armies and their tribes, family
members, and herds during the Mongol
period, the deportation of people from rebel
cities, the forced relocation of artisans, and
the growing need for slave labor temporarily
disrupted economic life in towns and
villages
29
.
In such a complex historical context, the
phenomenon of Amir Temur appeared on the
world stage. The French Timurid scholar Jean
Oben points out that Amir Temur was not
stunned by the chaotic and illegal migration
processes inherited from the nomadic
tradition of the Genghis Khans. Amir Temur
29
Keren L., Saidov А. Аmir Temur va Frantsiya /
To’ldirilgan va qayta ishlangan ikkinchi nashr. –
Тoshkent: “Adolat”, 2016. – B.313.
focused all his organizational skills on solving
the problems that arose, and as a result
established order throughout the kingdom
30
.
The establishment of a centralized state by
Amir Temur in the XIV century laid the
foundation for the transition of legal
institutions from the customary law to the
level of natural law. In particular, the work
“Political and Military Institutes of Tamerlane”
states that Amir Temur divided his kingdom
into 12 categories and acted on their basis
(picture 9). It is noted that the twelfth of
these categories were tourists and strangers
(migrants) who knew other countries well, for
whom he ordered the construction of rabats
(caravanserais) on the roads and the
construction of bridges over the rivers
31
.
30
Aubin J. Comment Tamerlan prenait les villes//
Sudia Islamica XIX, Paris 1963, – Р.83-122.
31
Khamidova М. Uzbekiston davlati va huquqi
tarikhi. –Т.: ТDYI nashriyoti. 2004. – B.80.
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Picture 9. Persian version of “Political and Military Institutes of Tamerlane” in 1861-1862.
State Museum of Timurid History.
In addition, Amir Temur appointed observers
and officers on the road, who monitored the
passengers and helped them to deliver their
property and other belongings from place to
place, as well as ordered them to be
responsible in case of loss, death or other
misfortune. In addition, Sahibkiran - I took half
of the world, and from one end of my
kingdom to the other I established a discipline
that would not harm a single child if he carried
a bowl of gold on his head. In addition,
Sahibkiran wrote that he had taken half of the
world, and that from one end of the kingdom
to the other he had established a discipline
that would not harm a single child if he carried
a bowl of gold on his head
32
. This meant that
in the Timurid state, the rights of any migrant,
32
Temur tuzuklari. Forschadan A.Soghuniy va
H.Karomatov tarjimasi. B.Аkhmedov tahriri ostida.
– Т.: Gafur Gulom nomidagi nashriyot-matbaa
birlashmasi, 1991. – B.94-95.
their safety and freedom of movement are
highly guaranteed
33
.
French Timur scholar Lucien Keren writes,
“Amir Temur had set up police and
departmental surveillance there to control the
influx of transient tourists and displaced
people. Because the settlement of the
population in this region and the placement of
masters,
specialists
in
various
fields,
regardless of their origin, was one of the most
important tasks of Timur”
34
. It is clear from
this passage that a certain system aimed at
regulating
migration
processes
was
introduced in the Timurid state.
Amir
Temur
regularly
monitored
the
functioning of the public administration
system through worthy people. For this
33
Keren L., Saidov А. Аmir Temur va Frantsiya /
To’ldirilgan va qayta ishlangan ikkinchi nashr. –
Тoshkent: “Adolat”, 2016. – B.50.
34
Keren L. Temuriylar davlatining asoschisi va
hukmdori Temurbek elchi Clavijo nigohida //
Andijonda Sohibqironni khotirlab: ilmiy-nazariy
anjuman materiallari. – Andijon, 1996. – B.21-27.
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purpose,
special
ministers
have
been
appointed for each country. In particular, the
task of arranging the property of the missing,
travelers (travelers and traders), the property
of the insane, the property without heirs, fines
imposed by judges and shaykhulislam are
entrusted to a separate minister
35
. He is the
minister who manages the property belonging
to the homeless, the dead and the fugitives,
the zakat and duties levied on the property of
the incoming (merchants and tourists), the
livestock of the country, their pastures, and
saves the proceeds from all this as a deposit
36
.
Based on these sources, we can conclude that
this special ministry, which operated in the
state of Amir Temur, was a service similar to
the current General Directorate of Migration
and Citizenship of the Ministry of Internal
Affairs and performed most of its functions.
It is known from history that this strict
discipline, established due to the just policy of
Amir Temur, was continued by the Timurid
princes after his death. In this regard, Hussein
Boykaro said in his pamphlet: “At that time,
migrant traders, foreigners and strangers, out
of fear of robbers, had to go through a lot of
difficulties and innumerable hardships on the
way to their destination. At this time, under
my rule, the winds of politics blew away the
remains of those helpless people from the
steppes of the countries and carried them to
the fires of hell. Not only has a skyscraper
been built at each stop for visitors, but a huge
fort has been built to provide security that will
benefit passengers in the cold weather and
35
Temur tuzuklari. Forschadan A.Soghuniy va
H.Karomatov tarjimasi. B.Аkhmedov tahriri ostida.
– Т.: Gafur Gulom nomidagi nashriyot-matbaa
birlashmasi, 1991. – B.100.
36
Temur tuzuklari. Forschadan A.Soghuniy va
H.Karomatov tarjimasi. B.Аkhmedov tahriri ostida.
– Т.: Gafur Gulom nomidagi nashriyot-matbaa
birlashmasi, 1991. – B.100.
provide shade to those in the heat. Apart from
shade and shelter, everyone can find what
they want in it, they can easily get what they
want. In each of those fortresses, there are
many soldiers and a group of specially trained
warriors, guards, to repel a group of bad guys
and destroy the roadblock”
37
.
After the Timurid dynasty, the disintegration
of the centralized kingdom led to the
emergence of khanates and the establishment
of boundaries between them. This, in turn, has
further complicated migration institutions in
the transition from one state to another.
According to the judicial reforms carried out in
the Emirate of Bukhara during the reign of
Amir Shah Murad, in order to restore and
develop Samarkand, many people were
relocated there from Uratepa, Khavas,
Tashkent, Andijan, Kattakurgan, Termez
38
. In
this regard, this category of population can be
recognized as “forced displaced persons” in
modern migration law. Consequently, the
term internally displaced persons applies to a
person or group of persons who are
compelled to leave their homes or places of
habitual residence as a result of an incident
caused by human activity.
From the 18th century onwards, the defeat of
the Uzbek khanates against Tsarist Russia had
serious negative consequences. For example,
under a ceasefire agreement between the
Khiva Khanate and the Russian Empire, the
khanate undertook to ensure freedom of
movement and security for Russian traders, as
well as to prevent and extradite Russian
citizens and Russian criminals who arrived
37
Shoh va shoir Khusayn Boyqaro to’plami.
Nashrga tayorlovchi А. Erkinov. – Т.: “Sharq”
NMAK, 1995. – B.19.
38
Khamidova М. Uzbekiston davlati va huquqi
tarikhi. –Т.: ТDYI nashriyoti. 2004. – B.108.
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without special government permission
39
. In
addition, farmers from many parts of Central
Russia were relocated to the fertile lands of
Turkestan
40
. In the last 35 years of the 19th
century alone, a total of 7,075,000 people
migrated to Uzbekistan from Russia, or an
average of more than 2,000 a year. Most of
the migrants are located in cities, including
Tashkent.
There is also interesting information on the
civil legal status of the khanates and emirates.
For example, since 1873, as a result of the
restriction of the powers of the khans in
Khiva, the supreme bodies representing the
domestic and foreign policy of tsarism, many
Khorezmians received Russian citizenship
41
.
According to the Uzbek legal scholar M.
Khamidova, the Bukhara khanate collected
customs duties from stateless persons or
foreign traders, the amount of which
depended on the level of international
political relations of the khanate
42
.
The regulation of migration relations is a
strategic issue in the public administration of
the emirates and khanates. For example, one
of the 10 most important directions at the
Bukhara Congress of People's Deputies was
the acquisition and loss of civil rights, the
adoption of laws determining the legal status
of foreign citizens entering the country
43
.
39
Istoriya gosudarstva i prava / N.P.Azizov,
F.Мukhitdiova i dr. – Т.: Akademiya MVD Respubliki
Uzbekistan, 2019. – S. 201.
40
Muqimov Z. Uzbekiston davlati va huquqi tarikhi.
– Т.: “Аdolat”, 2003. – B.244.
41
Davlat va huquq tarikhi: IIV oliy ta’lim
muassasalari uchun darslik / H.Т. Оdilqoriev, N.P.
Azizov, H.R. Маdirimov. – Т.: Uzbekiston
Respublikasi IIV Akademiyasi, 2013. – B.257.
42
Khamidova М. Uzbekiston davlati va huquqi
tarikhi. –Т.: ТDYI nashriyoti. 2004. – B.104.
43
Istoriya gosudarstva i prava / N.P.Azizov,
F.Мukhitdiova i dr. – Т.: Akademiya MVD Respubliki
Uzbekistan, 2019. – S. 226.
Jadidism also aims to carry out certain reforms
in the legal framework of migration. For
example, the programs of the “Ittihodi
tarakkiy”, “Ittihodi milliy” and “Milliy istiklol”
parties set specific tasks and measures to
protect human rights, such as freedom of
movement and privacy, which are grossly
violated in the country
44
.
Approved by the Russian emperor on June 12,
1886 and in force until mid-1917, the
"Regulations on the Administration of the
Provisional Territory" served the official
formation of a number of institutions of
migration law in Central Asia. In particular, the
document provides for the establishment of
direct contacts with the Emirate of Bukhara
and the Khiva Khanate, as well as the
deportation of indigenous peoples deemed
politically harmful to the territories agreed
with the Ministry of Internal Affairs for no
more than 5 years, deportation of citizens of
neighboring countries (if their activities are
considered harmful)
45
.
The passport-visa issue is shaped as a unique.
For example, the authorized political agent of
the Governor-General of Turkestan for
Bukhara, to some extent, performed some of
the functions of the current Ministry of
Foreign Affairs and signed the Bukhara-
Russian agreement of 23 June 1888 on
resettled Russian settlements. At the same
time, the Political Agency had the authority to
issue visas to passports of Bukhara citizens
traveling to Russia. In particular, by 1900,
2,428 Bukhara citizens had been issued visas
46
.
44
Istoriya gosudarstva i prava / N.P.Azizov,
F.Мukhitdiova i dr. – Т.: Akademiya MVD Respubliki
Uzbekistan, 2019. – S. 219.
45
Khamidova М. Uzbekiston davlati va huquqi
tarikhi. –Т.: ТDYI nashriyoti. 2004. – B.123.
46
Sarsembaev М.А. Mejdunarodnoe pravo v istorii
Kazakhstana i Sredney Azii. Uchebnoe posobie
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The abolition of the passport regime,
discussed at the First Congress of All-Turkmen
Muslims convened on April 16, 1917 at the
initiative of the Tashkent branch of the
“Shorai Islami”, was one of the most
important issues of personal security and
freedom
47
.
According to Section 4 of the Constitution of
the Turkestan ASSR of October 15, 1918, while
the issues of international relations were
mainly concerned with the Commissariat for
Foreign Affairs, the Turkestan People's
Commissariat of Internal Affairs was also
partially engaged in foreign policy issues
within its competence. For example, the
international division registered foreigners
who had acquired Russian citizenship, and had
the right to deprive them of Russian
citizenship and issue passports for going
abroad
48
.
An agreement on the rights of refugees was
also reached between Turkestan and Xinjiang
(Western China) in April 1920. The agreement,
known as the Ili Protocol, addresses the issue
of repatriating refugees who have been
forced to flee their homes for various
reasons
49
.
The Constitution of the Bukhara People's
Soviet Republic of September 23, 1921 did not
contain norms on freedom of movement
(picture 10).
(1991), Kazakhskaya elektronnaya biblioteka, 2014.
– S.38.
47
Khamidova М. Uzbekiston davlati va huquqi
tarikhi. –Т.: ТDYI nashriyoti. 2004. – B.132.
48
Sarsembaev М.А. Mejdunarodnoe pravo v istorii
Kazakhstana i Sredney Azii. Uchebnoe posobie
(1991), Kazakhskaya elektronnaya biblioteka, 2014.
– S.54.
49
Sarsembaev М.А. Mejdunarodnoe pravo v istorii
Kazakhstana i Sredney Azii. Uchebnoe posobie
(1991), Kazakhskaya elektronnaya biblioteka, 2014.
– S.56.
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Picture 10. The first set of laws of the Bukhara People's Government of 1922.
However, the Constitution provides for a
separate article on the institution of asylum in
the law of migration, according to which the
right to asylum in the territory of the state is
granted to foreign nationals persecuted for
their political and religious views (Article 13)
50
.
According to Article 26 of the Constitution of
the Khorezm People's Soviet Republic of May
23, 1921, the rights of emigrants were
strengthened for the first time. According to
it, the Republic of Khorezm granted the right
to peaceful and free residence on its territory
for emigrants who left the country due to
their political and religious views
51
.
According to Article 12 of the Constitution of
the Khorezm People's Soviet Republic of July
23, 1922, all citizens had the right to freely
choose their place of residence and move
freely within the country, as well as in the
territory of other allied Soviet republics. The
50
Sovetskie konstitutsii. Khrestomatiya. V 4
chastyax. Chast 1. Pervie sovetskie respubliki, 1918-
1922 гг. / Sost. D.V.Кuznetsov. – Blagoveshensk:
BGPU, 2015. – S.115.
51
Sovetskie konstitutsii. Khrestomatiya. V 4
chastyax. Chast 1. Pervie sovetskie respubliki, 1918-
1922 гг. / Sost. D.V.Кuznetsov. – Blagoveshensk:
BGPU, 2015. – S.101.
right to asylum for foreign nationals is also
guaranteed (Article 21)
52
.
Our comparative analysis showed that, unlike
other allied republics, including the Bukhara
People's Soviet Republic, the basic laws of the
Khorezm People's Soviet Republic were
distinguished by the constitutional guarantee
of the right to migrate.
Thus, from the invasion of Tsarist Russia to the
1920s, migration relations in Central Asia,
including Uzbekistan, were regulated in a
unique way, characterized by a dual mixed
system that is Muslim law and the legislation
of the Russian Empire.
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ة ياده لا
ي ف
حرش
ة ياد ب
د ب لا
, al-Hidāyah fī Shar
ḥ
Bidāyat
al-Mubtadī),
commonly
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